Practical Considerations Concerning Impeachment

Separating fact from fiction

I’m seeing a lot of misinformation out there about exactly what the point of presidential impeachment is when a term is about to end. Does it serve any practical purpose or have any implications? In this post, I intend to state facts and clear up some of the questions. I will not be taking a stance on the specifics of our current situation and whether it should happen or not.

First, let’s review something we hopefully all learned in 2019 (or in grade school if your teachers did their job). Impeachment is the process, not the end result. Short version - the House of Representatives, under the leadership of the Judiciary Committee, draws up and votes on articles of impeachment. If they pass by a simple majority, the president is impeached. The process then turns to the Senate for the trial. Two-thirds of the Senate must vote to support removal from office for that to happen. No United States President has even been removed from office in this manner.

The questions I am seeing are generally about whether there is any point in the impeachment of a president who is at the very end of a term. Of course, some want the process to play out regardless of practical implications for the President. My focus here is not on how something looks or goes down in history, but what actual difference for practical purposes it may make.

First, I hear some people claim that in order to avoid impeachment altogether the president could choose to resign. Although that could lessen the intensity of the “we-must-remove-him-at-all-costs” crowd, it would not necessarily prevent impeachment. There is precedent for impeachment after resignation. (William Belknap). No one knows what would happen if he did that, but Congress certainly has the option of pursuing it.

Getting into more details, I see people stating that impeachment and subsequent removal from office would make the target ineligible to run for office again as well as prevent him from having access to the “perks” of a former chief executive.

Let’s start with what the perks are that we are discussing. These can be found in the Former President’s Act and consist of an annual pension, office space and staff salaries, and potential benefits for a spouse should the former POTUS pass, as well as secret service/security benefits. The key part here does lead us to believe that these benefits would not be applicable in case of removal from office.

Now, I am not a lawyer, but I do a lot of professional work in the legal field and study constitutional law for “fun” (Never said I wasn’t insane) so while I am not an expert I feel qualified to carefully wade in here.

The Former President’s Act defines the term “former president.” Keep in mind that in legal terms, the definition that is written will take precedence over what you might expect it to be. So for the purposes of claiming these benefits:

(f) As used in this section, the term “former President” means a person--

(1) who shall have held the office of President of the United States of America;

(2) whose service in such office shall have terminated other than by removal pursuant to section 4 of article II of the Constitution of the United States of America; and

(3) who does not then currently hold such office.

Section 4, Article II of course is: The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

Follow me here… if a President resigns, they would still be a “former president” and therefore eligible. If a president is impeached and removed from office, they would not be. But what if their term ends in a natural transition, so it does meet the standard of line 2 and the Conviction (if successful) actually comes after the president has already exited the office? It seems to me that it is at least arguable that one could be impeached, removed from office, and still technically be eligible for these “perks.”

It is important to note that a 2013 amendment does ensure that even those removed from office are still eligible for secret service protection.

Finally, there is the issue of whether impeachment and removal will prevent one from running for federal office again. The instance of impeachment and removal does not necessarily prevent someone from holding office again. That’s right, contrary to popular belief, it is not a foregone conclusion. The phraseology is key:

Article I, Section 3, Clause 7:

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States.

“Shall not extend further…” This means that the Senate would have the option of including barring the person from office, but they can choose to simply remove and not ban them from running again. With Senate margins razor-thin, it is possible that a compromise could happen here. There could theoretically be some moderates who go along with removal, but want to throw a bone to the millions of people who are against it and want to see their leader run again. A slick wordsmith could easily throw together a statement to this effect giving Senators at least partial cover for a highly controversial vote.

One final note is the question of whether there would still be a presidential library in a case of removal. As these libraries are in fact built by private foundations, and not government-funded, it seems that yes it is highly likely that a library could still happen. A lack of paid office space and staffing as noted above would likely hinder the cause, but especially for a well-funded former president, there’s little doubt in my mind that it would be built. (And it will be YUGE!)