caught, or by waiting until the end of their term to abuse power, or by concealing misconduct until their service concludes. Experts from across the ideological spectrum, including a co-founder of the Federalist Society and Ronald Reagan’s Solicitor General, agree that “[t]he Constitution’s text and structure, history, and precedent make clear that Congress’s impeachment power permits it to impeach, try, convict, and disqualify former officers, including former presidents.”[1] Even Professor Jonathan Turley (who seems to have changed his long-held views on the subject less than a month ago) previously argued that impeaching former presidents for abuses in office is authorized by the Constitution and can serve as “a reaffirmation of the principle that, within this system, ‘no man in no circumstance, can escape the account, which he owes to the laws of his country.’[2]
It is particularly obvious that the Senate has jurisdiction here because President Trump was in office at the time he was impeached. There can be no doubt that the House had authority to impeach him at that point. So the question is not whether a former official can ever be impeached by the House—though, as we will explain, this is indeed authorized. The only issue actually presented is whether the Senate has jurisdiction to conduct a trial of this impeachment. And Article I, Section 3, Clause 6 provides a straightforward answer to that question: “The Senate shall have the sole Power to try all Impeachments” (emphasis added). As Professor Michael McConnell, a former Court of Appeals judge appointed by President George W. Bush, explains: “The key word is ‘all.’ This clause contains no reservation or limitation. It does not say ‘the Senate has power to try
- ↑ See Constitutional Law Scholars on Impeaching Former Officers (Jan. 21, 2021), available at https://www.politico.com/f/?id=00000177-2646-de27-a5f7-3fe714ac0000; see also Congressional Research Service, The Impeachment and Trial of a Former President 1-2 (Jan. 15, 2021) ( "[I]t appears that most scholars who have closely examined the question have concluded that Congress has authority to extend the impeachment process to officials who are no longer in office.").
- ↑ Jonathan Turley, Senate Trials and Factional Disputes: Impeachment As A Madisonian Device, 49 Duke L.J. 1, 96 (1999); see also Jonathan Turley, The Executive Function Theory, the Hamilton Affair, and Other Constitutional Mythologies, 77 N.C. L. Rev. 1791, 1827 (1999).
