The Case Against Late Impeachment: Part Two
Proponents of late impeachment contend that the practice – when Congress impeaches and convicts a government official after they leave office for their conduct in office – is constitutional. They cite evidence in five categories to support their claim: the constitution’s text and structure; pre-constitutional impeachment practices in Great Britain and America; delegates’ deliberations at the 1787 Federal Convention; ratification debates; and historical practice under the Constitution. However, the documentary record associated with each of these categories does not provide evidence that late impeachment is constitutional. It does not provide proof that the Constitution authorizes the practice explicitly or implicitly. However, the documentary record does provide evidence that demonstrates that the people who participated in the debate over ratification understood the Constitution’s impeachment provisions to apply to government officials when they were in office.
A previous piece considered the available evidence associated with the Constitution’s text and the 1787 Federal Convention. The following piece considers the case for late impeachment in the context of the state ratifying debates.
LATE IMPEACHMENT REVIEW
“Late impeachment” refers to the idea that the Constitution implicitly empowers Congress to impeach and convict government officials after leaving office. “Regular impeachment” refers to the Constitution’s explicit grant of power to Congress to impeach and convict government officials when they are in office. According to Brian C. Kalt – the leading proponent of late impeachment and the scholar who coined the term in a 2001 law review article – “late impeachment” also refers to a subset of scenarios in which the Senate convicts a government official who leaves office after the House impeaches him or her. The Senate’s current impeachment proceedings against Donald Trump are an example of this type of late impeachment. The House voted to impeach Trump on January 13, when he was still president. But the Senate did not begin Trump’s impeachment trial until February 8, more than two weeks after he left office.
RATIFICATION DEBATES AND CONSTITUTIONAL INTERPRETATION
Proponents of late impeachment claim that the practice is constitutional because the Constitution does not prohibit it explicitly. As Kalt notes in his seminal article, “The text of the Constitution says nothing explicit about the timing of impeachment, neither explicitly authorizing late impeachment not ruling it out.” Consequently, late impeachment proponents cite evidence from the 1787 Federal Convention that drafted the Constitution and the subsequent debate over ratifying the Constitution to support their claim that the Constitution authorizes it implicitly.
The ratification debates are essential for discerning what the Constitution means when its text is not exact. James Madison noted in a 1796 debate over the Constitution’s meaning that “whatever veneration might be entertained for the body of men who formed our constitution, the sense of that body could never be regarded as the oracular guide in the expounding the constitution. As the instrument came from them, it was nothing more than the draught of a plan, nothing but a dead letter, until life and validity were breathed into it, by the voice of the people, speaking through the several state conventions.” Consequently, Madison argued, “if we were to look…for the meaning of the instrument, beyond the face of the instrument, we must look for it not in the general convention, which proposed, but in the state conventions, which accepted and ratified the constitution.”
Given Madison’s observation, the ratification debates are crucial when assessing the constitutionality of late impeachment. This is because proponents of the practice concede that they must look “beyond the face” of the Constitution for evidence that it is constitutional. But as with the delegates’ deliberations at the 1787 Federal Convention, the ratification debates do not provide direct evidence that the Constitution authorizes late impeachment. That is why Kalt – a late impeachment proponent – notes that “the debates surrounding the framing and ratification of the Constitution provide fodder for debate but little clarification.”
Consequently, Kalt pays little attention to the ratification debates in his 2001 article. He only cites two essays from the well-known Federalist series and quotes four individuals in three state ratifying conventions to support his argument for late impeachment. However, a review of the evidence Kalt cites demonstrates that it does not support his claim that late impeachment is constitutional. Moreover, the documentary record includes evidence that Kalt does not mention that suggests government officials are subject to impeachment and conviction only when they are in office.
THE FEDERALIST
The Federalist essays are an essential source of information regarding the Constitution’s meaning. Two of its three authors – Alexander Hamilton and James Madison – attended the 1787 Federal Convention that drafted the Constitution. Both were intimately familiar with the Constitution’s provisions and what they authorized and did not authorize.
Notwithstanding their importance, Kalt asserts that “the Federalist Papers present neither direct evidence about the original understanding of late impeachment, nor much valid basis for inference.” He notes that passages in Federalist 39 and Federalist 69 do not rule out late impeachment and, by extension, indicate that the practice is constitutional.
FEDERALIST 39
Kalt concedes that Madison appears to rule out late impeachment in a passage from Federalist 39 in which he assesses the republican character of the presidency. But he argues that the passage rules out late impeachment only when readers take it out of context. Madison writes, “The President is to continue in office for the period of four years; as in New-York and Delaware, the chief magistrate is elected for three years, and in South-Carolina for two years. In the other States the election is annual. In several of the States however, no constitutional provision is made for the impeachment of the Chief Magistrate. And in Delaware and Virginia he is not impeachable till out of office. The President of the United States is impeachable at any time during his continuance in office.”
Madison’s meaning appears straightforward here- presidents are subject to impeachment while they are in office. But Kalt asserts that Madison “was not speaking of the limits of the federal impeachment power; rather, he was speaking of its expansion.” Kalt reasons – without providing evidence to support his reasoning – that what Madison really meant was that “unlike certain states where the governor cannot be impeached at all or can only be impeached after he leaves…the President can be impeached while he is in office.”
Yet Kalt does not provide evidence that supports his reading of the passage in question; he does not provide evidence that demonstrates, or even intimates, that Madison meant anything other than what he wrote – that the president was subject to impeachment during his term in office. And reading the passage in the broader context of Federalist 39 suggests that Madison did not understand the Constitution to authorize regular impeachment explicitly and late impeachment implicitly. This is because Madison assesses the extent to which the Constitution conformed to republican principles in the essay. In doing so, Madison compares Congress to state legislatures and the president to state governors. He cites the president’s impeachability to prove that the presidency conforms to republican principles to a greater degree than some state governors. The president is subject to impeachment by the people’s representatives while he was in office. In contrast, some state governors were not subject to impeachment at all. And in Delaware and Virginia, the governor was only subject to impeachment after he left office.
Kalt’s reading of the passage as expanding the practice of late impeachment to include regular impeachment is also undermined by the fact that he does not demonstrate precisely when or how late impeachment was incorporated into the Articles of Confederation or the Constitution. Not having done so, it is therefore premature for Kalt to suggest that Madison understood the Constitution as expanding impeachment to include regular impeachment in addition to late impeachment.
FEDERALIST 69
Kalt contends that Alexander Hamilton makes “the identical point” in Federalist 69 that he claims Madison makes in Federalist 39. In Federalist 69, Hamilton notes that regarding impeachment, “the President of Confederated America would stand upon no better ground than a Governor of New-York, and upon worse ground than the Governors of Virginia and Delaware.” Kalt interprets this passage as providing evidence that “Hamilton may have supported the idea of late impeachability.” However, as with Kalt’s analysis of Madison’s comments in Federalist 39, he does not provide evidence that supports his inference that Hamilton may have understood the Constitution to authorize late impeachment implicitly. But Kalt nevertheless speculates that late impeachment is constitutional because Hamilton, like Madison before him, does not explicitly acknowledge its prohibition. “At worst,” Kalt reasons, “late impeachment was simply beside the point to Madison and Hamilton and not ruled out.”
Yet both Madison and Hamilton appear to rule out late impeachment in Federalist 39 and Federalist 69, respectively. In Federalist 39, Madison rules out late impeachment directly, writing, “the President of the United States is impeachable at any time during his continuance in office.” And there is no reason to believe Kalt that this interpretation is reading Madison out of context.
Hamilton rules out late impeachment in Federalist 69 when he compares the president to two governors subject to late impeachment and one governor not subject to late impeachment. Hamilton believed that the president was “upon worse ground” than the governors of Virginia and Delaware because, unlike them, the president was subject to impeachment – in Madison’s words – “at any time during his continuance in office.” Kalt dismisses this straightforward reading – “One can debate whether a President who is only impeachable while in office is ‘on worse ground’ than one who can only be impeached after leaving office.” But in doing so, he overlooks the fact that Hamilton understood “upon worse ground” to mean subject to impeachment while in office instead of only when out of office. This is evident in the fact that Hamilton equates the president with the New York governor, who was subject to impeachment only while in office.
Hamilton also underscored the link between impeachment and tenure in office earlier in Federalist 69. “The President of the Unite States would be liable to be impeached, tried, and upon conviction of treason, bribery, or other high crimes or misdemeanors, removed from office; and would afterwards be liable to prosecution and punishment in the ordinary course of law.” In short, presidents were subject to impeachment when they were in office and criminal prosecution after they left office. The president was not subject to impeachment after he left office.
OTHER FEDERALIST ESSAYS
Kalt does not cite other Federalist essays (or other pamphlets from the ratification debates) to support his claim that the Constitution authorizes late impeachment implicitly. He observes, “The only other potentially relevant discussions of impeachment in The Federalist concerned removability, and so…focused disproportionately on the impeachment of sitting officers.” Setting aside the fact that delegates to the Federal Convention considered impeachment and removability to be two sides of the same coin, The Federalist includes relevant insights into how its authors understood the Constitution’s impeachment provisions to operate. These insights further undermine Kalt’s argument that the Constitution authorized late impeachment implicitly.
For example, Madison notes in Federalist 45 that “the powers delegated by the proposed Constitution to the Federal Government are few and defined.” According to Madison, the Constitution defines the powers it gave to the new government, including impeachment explicitly. This suggests that the extent of the ability to impeach government officials is limited by how it is defined in the Constitution. Regular impeachment is sanctioned because the Constitution authorizes it explicitly. Late impeachment is not approved because the Constitution does not permit it explicitly.
Of course, Madison acknowledges in Federalist 44 that “no axiom is more clearly established in law, or in reason, than that whenever the end is required, the means are authorised; whenever a general power to do a thing is given, every particular power necessary for doing it, is included.” But the Constitution’s impeachment provisions constitute a power to remove government officials – those listed in Article II, section 4 – from office. Late impeachment is not required to achieve that end. Consequently, its constitutionality is not implied.
Madison’s analysis of piracy in Federalist 42 – while not directly related to impeachment – suggests that the Constitution does not implicitly incorporate the pre-constitutional practice of late impeachment in Great Britain and America (in the states where it was permitted). According to Madison, “neither the common, nor the statute law of [England] or of any other nation ought to be a standard….unless previously made its own by legislative adoption.” Madison rules out implicit adoption of state practices as well. “The meaning of the term [felony] as defined in the codes of the several States, would be as impracticable as the former would be a dishonorable and illegitimate guide.” This is because the practice “is not precisely the same in any two of the States.”
OTHER PAMPHLETS
Hamilton and Madison were not the only two people who discussed impeachment during the ratification debates. Lots of federalists and anti-federalists debated the meaning of the Constitution’s impeachment provisions. Taken together, the pamphlets from these debates reveal a common understanding on the part of the people who participated in it regarding the Constitution’s impeachment provisions. And their understanding does not suggest that the Constitution authorizes late impeachment implicitly.
For example, Noah Webster, writing as “A Citizen of America,” reveals his understanding of the impeachment power in “An Examination Into the Leading Principles of the Federal Constitution.” Webster notes, “The fact is, that trial by jury is not affected in any case, by the constitution; except in cases of impeachment, which are to be tried by the senate. None but persons in office in or under Congress can be impeached; and even after a judgment upon an impeachment, the offender is liable to a prosecution, before a common jury, in a regular course of law.” Webster rules out late impeachment when he acknowledges “none but persons in office…can be impeached.” Therefore, Webster understood impeachment to apply to government officials in office and criminal prosecution to apply to private citizens who were not in office.
In September 1787, Philadelphia’s Independent Gazetteer published an essay by Tench Coxe under the nom de plume, “An American Citizen.” Like Webster, Coxe understood the Constitution’s impeachment provisions to apply only to government officials in office. He observes the Senate “can only, by conviction on impeachment, remove and incapacitate a dangerous officer, but the punishment of him as a criminal remains within the province of the courts of law to be conducted under all the ordinary forms and precautions, which exceedingly diminishes the importance of [the Senate’s] judicial powers.” Coxe notes that the Senate’s impeachment jurisdiction does not extend to private citizens, even if those private citizens previously served in office.
The author of the anti-federal series, Letters from the Federal Farmer, also understood impeachment to apply only to government officials in office. “The senators and representatives are the law makers, create all offices, and whenever they see fit, they impeach and try officers for misconduct.” This appears to rule out late impeachment is unconstitutional because the individual impeached must be a government official at the time of impeachment and during the trial. And the author noted in a subsequent letter that “all officers are impeachable before the Senate only.”
In another pamphlet from 1787, “A Democratic Federalist” observed, “The power of impeachment, vested in our federal Representatives, and the right to hear those cases, which is vested in the Senate, can produce no punishment in person or property, even on conviction. Their whole judicial power lies within a narrow compass. They can take no cognizance of a private citizen and can only declare any dangerous public officer no longer worthy to serve his country. To punish him for his crimes, in body or estate, is not within their constitutional powers. They must consign him to a jury and a court, with whom the deprivation of his office is to be no proof of guilt.” This pamphlet underscores the limitations inherent in the Senate’s impeachment power. It also appears to rule out late impeachment by noting that the Senate can take no cognizance of a private citizen. This undermines claims of late impeachment proponents that the Constitution empowers the Senate to convict private citizens for misconduct that occurred when they were in office. The reason for this is that “A Democratic Federalist” does not say that the Senate cannot take cognizance of private “acts.” The pamphlet’s author instead points out that the Senate cannot take cognizance of private citizens. A private citizen is a private citizen (whether he or she previously served in office or not). And “deprivation of his office” is the result of the impeachment process. Consequently, those who cannot be deprived of their office because they have no office are not subject to impeachment.
In Some Observations on the Constitution, James Monroe observes, “The president is to act under [the Senate’s] controul in the cases above stated, if in any instance a wanton violation by their direction or permission should be made, which though not probable is yet practicable, of the rights or interests of any part of the community, and after solemn debate in the house of representatives, this high officer should be brought by impeachment before [the Senate] to expiate his offence, what would be his fate, especially as he still held his office and might wield his powers in his defence.” Here Monroe understands Senate impeachment trials to apply to “high officers” who are in office. This is evident because Monroe acknowledges that the impeached official would still hold his office and that he might use the powers conferred on him by that office to prevent the Senate from convicting him.
In New York, Cincinnatus noted, “The sole power of impeachment being vested in them, they have it in their power to control the representative in this high democratic right; to screen from punishment, or rather from conviction, all high offenders, being their creatures, and to keep in awe all opponents to their power in high office.” Cincinnatus understands impeachment to apply to people in office because only government officials have any power to “keep in awe” their opponents in an impeachment trial.
STATE CONVENTIONS
The ratifying state debates also demonstrate that the delegates to the state ratifying conventions did not understand the Constitution to authorize late impeachment implicitly. Kalt, however, suggests, “In the actual state convention debates on ratification, impeachment was raised as an issue on several occasions, but…late impeachment was not addressed directly.” But a review of the examples he cites does not provide evidence in support of his claim.
PENNSYLVANIA
James Wilson – one of the leading delegates at the 1787 Federal Convention – also served as a delegate to the Pennsylvania ratifying convention. During that convention, Wilson described the Constitution’s Article II, section 4 as authorizing “the power of punishing on impeachment for crimes and misdemeanors in office.” Wilson also distinguished between public/government officials and private citizens in the debates. “Add to all this, that officer is placed high, and is possessed of power, far from being contemptible, yet not a single privilege is annexed to his character; far from being above the laws, he is amenable to them in his private character as a citizen and in his public character by impeachment.”
MARYLAND
Another delegate at the 1787 Federal Convention, Maryland’s Luther Martin, commented on the Constitution’s impeachment provisions in that state’s ratifying convention. Kalt contends that Martin’s comments are unrelated to late impeachment. He acknowledges that Martin believed that impeachment would be ineffective in restraining the president. However, Kalt overlooks the fact that Martin thought impeachment would be futile because the president could use his office’s powers to prevent the Senate from convicting him. “Should he, contrary to probability, be impeached, he is afterwards to be tried and adjudged by the Senate, and, without the concurrence of two thirds of the members who shall be present, he cannot be convicted. This Senate being constituted a privy council to the President, it is probable many of its leading and influential members may have advised or concurred in the very measures for which he may be impeached; the members of the Senate also are by the system, pleased as unduly under the influence of, and dependent upon the President, as the members of the other branch, since they are also appointable to offices, and cannot obtain them but through the favor of the President. There will be great, important, and valuable offices under this government, should it take place, more than sufficient to enable him to hold out the expectation of one of them to each of the senators.” Martin asked his colleagues, “will any person conceive it to be difficult for the President always to secure himself more than one third of that body? Or, can it reasonably be believed, that a criminal will be convicted, who is constitutionally impowered to bribe his judges, at the head of whom is to preside on those occasions the Chief Justice, which officer, in his original appointment, must be nominated by the President, and will, therefore, probably, be appointed not so much for his eminence in legal knowledge and for his integrity, as from favoritism and influence; since the President, knowing that in case of impeachment the Chief Justice is to preside at his trial, will naturally wish to fill that office with a person of whose voice and influence he shall consider himself secure?” Consequently, Martin believed that “there will be but little probability of the President ever being either impeached or convicted; but it was also urged, that, vested with the powers which the system gives him, and with the influence attendant upon those powers, to him it would be of little consequence whether he was impeached or convicted, since he will be able to set both at defiance.” Martin’s comments suggest that he did not understand the Constitution to authorize late impeachment implicitly because the Constitution did not give former presidents power to undermine efforts to impeach them. Martin’s critique of the Constitution’s impeachment provisions only makes sense in the context of presidents who are impeached and tried while in office.
MASSACHUSETTS
Kalt cites an argument by delegate John Brooks during Massachusetts’s ratifying convention. Brooks suggests that senators are subject to impeachment to support his claim that the Constitution authorizes late impeachment implicitly. According to Kalt, Brooks’ comments provide evidence for late impeachment’s constitutionality because it demonstrates that the delegate understood impeachment as a punishment. Kalt writes, “Brooks supported the impeachability of senators, in other words, and understood impeachment as being about much more than just removal. Apropos of late impeachment, Brooks understood removal, disqualification, or any combination thereof as a threat to one’s political existence, a threat that provided proper incentives for ‘good behavior.'” Kalt then notes that “once again, we see impeachment conceived as a way to guarantee propriety in office – a goal to which late impeachment would contribute – rather than simply to remove malefactors from office.”
But Brooks’ argument in the Massachusetts ratifying convention does not provide evidence that Brooks and his fellow delegates at the convention believed that the Constitution empowered Congress to impeach and convict government officials after they left office. Kalt speculates that the Constitution authorizes late impeachment implicitly here by citing Brooks’s statement that impeachment serves as a punishment and that late impeachment is consistent with the impeachment-as-punishment concept. However, Brooks does not actually say that he believes that the Constitution permits late impeachment. Moreover, his argument that impeachment serves as a form of punishment applies equally to regular impeachment.
Kalt omits other relevant discussions during Massachusetts’s ratifying convention. For example, Caleb Strong – a delegate to the 1787 Federal Convention and the Massachusetts ratifying convention – suggests that the Constitution should be understood to authorize things like impeachment explicitly, “Gentlemen have said, the proposed Constitution was in some places ambiguous. I wish they would point out the particular instances of ambiguity; for my part I think the whole of it is expressed in the plain, common language of mankind. If any parts are not so explicit as they could be, it cannot be attributed to any design; for I believe a great majority of the men who formed it were sincere and honest men.”
In a 1787 letter to Captain Peter Osgood, Jr., Massachusetts’s William Symmes writes, “If he make a bad treaty, what then? Why, he may be impeached, if anybody dares impeach him, before the very Senate that advised the measure. And if convicted, what? He shall be removed from his office, and perhaps disqualified to hold any other. And after this he may chance to lose his head by a trial at law, if the Judges, whom he has appointed, will bid the jury to convict him. And so, with a great deal of difficulty, for some (perhaps) irreparable detriment, we get the offender’s head.” Symmes notes here that impeached individuals are removed from office. He also notes that disqualification is derivative of removal when he uses “perhaps” to introduce the concept.
NORTH CAROLINA
Kalt recounts a debate in the North Carolina ratifying convention that he believes suggests that late impeachment is constitutional. Kalt argued, “An exchange at the North Carolina ratifying convention contained language that implicated late impeachment. In the context of a discussion of who was subject to impeachment, delegates puzzled over the Constitution’s vague language and worried that state officers and even private citizens might be susceptible to impeachment. Governor Samuel Johnston rejected this motion, stating: ‘Removal from office is the punishment – to which is added future disqualification. How could a man be removed from office who had no office?’ Johnston’s interpretation would seem to preclude late impeachment. If removal is a necessary element of punishment, then how could an ex-officer be impeached? But Johnston’s comment seems to be directed more at dispelling the notion that ordinary citizens could be impeached than at discussing the acceptable timing of impeachment trials. Late impeachment does not present the problem of pursuing an individual who ‘had no office,’ and thus does not really conflict with Johnston’s underlying interpretation.” But Kalt provides no evidence that affirms his contention that Johnston was referring to the Senate’s inability to convict private citizens as opposed to former government officials. This is because late impeachment targets private citizens who “had no office.”
Kalt also cites James Iredell in the North Carolina ratifying convention to support his claim that late impeachment is constitutional. Kalt describes Iredell as a “Framer, Ratifier, and later U.S, Supreme Court Justice,” presumably to give his comments greater weight. But Iredell did not attend the 1787 Federal Convention. And the fact that he served on the Supreme Court is of no greater significance than Wilson – a late impeachment skeptic – also served on the Supreme Court (Wilson, incidentally, also attended the 1787 Federal Convention). Iredell did, however, help craft the North Carolina constitution of 1776.
Kalt quotes Iredell as saying, “[Impeachment] will be not only the means of punishing misconduct, but it will prevent misconduct. A man in public office who knows that there is no tribunal to punish him, may be ready to deviate from his duty; but if he knows there is a tribunal for that purpose, although he may be a man of no principle, the very terror of punishment will perhaps deter him.” However, Iredell was describing “a man in public office” as being subject to impeachment, not a man not in public office. And former government officials are clearly not in public office. Despite this straightforward meaning, Kalt contends that “Iredell’s statement is perhaps the clearest one by a Framer that impeachment is intended as a structural incentive for executive and judicial officials to behave…late impeachment is an important component of this function.” Kalt does not provide evidence to support his inference. He instead assumes that Iredell means what he assumes he means. Therefore, it is not evidenced that he understood the Constitution to authorize late impeachment implicitly.
Kalt goes on, “Because the impeachment process is so cumbersome, it is only with late impeachment that the incentive effects of impeachment extend to the later portions of an executive officer’s term. Without late impeachment, as Iredell puts it, there is effectively ‘no tribunal to punish’ such a malfeasing officer, who would then be all too ‘ready to deviate from his duty.’” But again, Iredell does not say what Kalt suggests he says; he does not say that late impeachment is a necessary corrective to the problem.
THE TAKEAWAY
A review of the state ratifying debates demonstrates that the documentary record does not support claims that the Constitution authorizes late impeachment implicitly.
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