Gastonia, NC
A useful constitutional check has to work when the other tribe holds the House. A tail on a lost election only has to work once.
That is where I start, and it is worth being precise about what actually happened, because the shorthand everybody is using is wrong in a way that matters. The House impeached Donald Trump on January 13. He was still president. Whatever anyone thinks of the article, that vote was an ordinary impeachment of a sitting officer, taken a week before the term expired.
What happened in February was the trial, and the trial occurred after the term ended because the Senate did not reconvene to take it up before January 20. That was Mitch McConnell’s decision as the outgoing majority leader. So when people say the House should have moved faster if it wanted removal on the table, they are aiming at the wrong chamber. The House moved in four days. The Senate chose the calendar.
I say that as somebody who still thinks the trial was a mistake, because I would rather lose an argument accurately than win one on a fact that will not hold.
The constitutional question was narrower and more important than the political one: should impeachment, designed principally to deal with an officer who still holds power, continue as a proceeding against a man who has already left the office? I think that is a bad habit to teach Congress, and I think so for reasons that have nothing to do with the particular defendant.
I have worked enough odd jobs to know the difference between discipline and theater. A restaurant can fire a cook. A dispatcher can take somebody off a route. Those are remedies tied to a role that still exists. Once the role is gone, you are in a different category. You may still have a grievance, you may still have a legal claim, and you may still think the person behaved disgracefully. But you are no longer correcting the current operation. You are marking the former participant.
Now, the honest complication. The Senate itself did not agree with me. On February 9 it voted 56 to 44 that it had jurisdiction to try a former president. Six Republicans joined the majority on that question. The trial then proceeded on the merits and produced a 57 to 43 vote to convict, ten short of the two-thirds required.
That sequence matters and most of the commentary has gotten it backwards. The acquittal was not a ruling that the Senate lacked power. The Senate expressly decided it had the power and then declined to convict. Anybody arguing, as I am, that post-term trials are a bad idea has to concede that the body itself resolved the jurisdictional question the other way, in public, on the record.
There is also a precedent I had not known about until this month, and it complicates the “unprecedented” language that both sides have been throwing around. In 1876, Secretary of War William Belknap resigned hours before the House impeached him, and the Senate tried him anyway after taking a vote that it had jurisdiction. He was acquitted, with several senators stating that they voted to acquit specifically because they doubted the Senate’s authority over a private citizen.
So this is not new ground. It is thin ground that was walked once, a hundred and forty-five years ago, with the same argument and roughly the same outcome. That is worth knowing before anybody claims February was an invention.
What I would still say is that the theory has now been refreshed. Belknap was a curiosity. The 2021 trial made the argument live, briefed, voted on, and available to any future majority that wants it. Suppose a president loses reelection and the outgoing House is furious about something he did in the final month. It would have 2021 to cite, and it would have lawyers ready to explain why its case is even more exceptional. Every precedent begins as an exception with good stationery.
That is the part I distrust.
There is a credibility problem too, and supporters of the trial dismissed it too easily. Millions of Americans watched political leaders describe riots and attacks on federal facilities in 2020 with one vocabulary, then describe January 6 with another. I am not saying the events were identical. They were not. I am saying voters noticed how quickly moral categories seemed to follow partisan geography, and when institutions then ask for an aggressive constitutional reading, accumulated trust is the currency they are spending.
I would draw the line plainly. Impeachment belongs to people who still hold the office from which they can be removed. If the House impeaches in the final days, the Senate should have to take it up before the term ends or let it lapse, and if the majority leader will not reconvene, that is a choice with consequences that ought to be understood in advance rather than discovered afterward.
That rule would sometimes frustrate people who want one more verdict. Constitutional limits are supposed to frustrate people who want one more verdict. A lost election should end something, and if Congress turns every defeat into an invitation for a final trial, the peaceful transfer of power acquires a political tail. Tails get stepped on, then they get pulled, and eventually everybody insists the other side started it.
We would be better off ending the habit before it becomes tradition.
Owatonna, MN
Minnesota has sent men to Washington who thought a vote was a sermon. Sermons do not travel as well as they think, and constitutional precedents are rarely owned by the people who create them. They pass to the next majority. A device introduced to punish one president can become the favorite instrument of people who despised that president and everything his coalition represented, which should have made Congress more cautious than it was this winter.
I do not need to minimize January 6 to say that. It was a riot and a breach of the Capitol and a national embarrassment. The question is not whether the conduct surrounding that day deserved scrutiny. Of course it did. The question is whether a Senate trial concluded after the term had ended was the sound constitutional vehicle for providing it.
I think it was not, and I want to make that argument against the strongest version of the other side rather than the weakest.
The strongest version has three parts. First, the House acted while Trump was still president, which means this was not an impeachment of a private citizen but a trial of an impeachment lawfully brought against a sitting officer. Second, the Senate voted 56 to 44 that it possessed jurisdiction, so this was not a body sneaking past a question but one answering it. Third, disqualification from future office remained an available remedy, so the proceeding was not purely symbolic.
Those are serious arguments and I would rather acknowledge them than pretend no argument exists. But serious arguments can still produce bad institutions. The question is not merely whether clever lawyers can make a post-term trial fit inside constitutional language. The question is what happens after Congress demonstrates that it may keep an outgoing president inside the impeachment machinery once his term has ended.
My concern is repetition. I spent years in financial planning and investing, and one learns quickly that a transaction is not judged only by whether it worked the first time. You ask what incentives it creates and what happens when the assumptions change. Political institutions deserve the same discipline. If a House can impeach an outgoing president and the Senate can complete the trial after he becomes a private citizen, future Houses have an incentive to search the final weeks of a presidency for offenses that justify another winter proceeding.
The next case will not look like January 6. That is the point. Precedents are not repeated as photocopies. They are analogized. One caucus will say the outgoing president abused emergency authority. Another will say he obstructed Congress. Another will say he deliberately misled the country during a crisis. Each will explain that its case is at least as grave as the last. Once the jurisdictional door has been opened, the fight moves from “may we do this” to “is our grievance serious enough,” which is a much lower barrier.
There is a historical footnote that both sides have been avoiding, probably because it helps neither of them cleanly. In 1876 the Senate tried Secretary of War Belknap after he had already resigned. It voted that it had jurisdiction and then acquitted, with more than twenty senators recording that they doubted the Senate’s power over a departed officer. So the question has been asked before, answered ambiguously, and left alone for a century and a half.
That history tells me something useful. The theory has always existed and has almost never been used, which suggests the restraint was doing real work. Restraint that survives a hundred and forty-five years is not an accident. It is an institution’s accumulated judgment that the tool is more dangerous than the cases it would solve.
I also worry about the tendency to use impeachment as a substitute for more demanding processes. Criminal law is slower. It requires elements, evidence, procedural protections, and courts that do not answer to a congressional majority. Those inconveniences are not flaws. They are among the reasons criminal law carries a different legitimacy. Mitch McConnell said as much on the floor after voting to acquit — that a former president remains subject to criminal and civil process like any other citizen — and whatever one thinks of his vote, that sentence is the correct constitutional map.
I have spent enough time in the wilderness to respect boundaries that are inconvenient. A portage is annoying because the lake ends where it ends. You do not improve the map by pretending the water continues because carrying the canoe is unpleasant.
January 20 changed the circumstance. The electorate had acted, a new president had taken office, and the former president remained politically powerful and potentially subject to ordinary law but possessed no presidential authority. The country was entitled to move into the next constitutional tense.
The Senate’s acquittal, in my view, was therefore a defensible act of institutional restraint even though the body had already voted that it possessed the power. Those propositions coexist more easily than the commentary allows. A senator could conclude that the Senate had jurisdiction and still believe that exercising it against a departed officer was unwise. Several of them said exactly that.
We lose something if every defeated presidency receives an epilogue written by the opposing chamber. Elections are supposed to close a chapter. They need not erase misconduct and they do not immunize anyone from law. But they should mean the former officeholder is no longer held inside a removal process after there is no office left to remove him from.
Prescott Valley, AZ
Out here we cap a well; we do not hold a hearing after the lease expires. The comparison is imperfect but it captures the problem I see. Impeachment is ordinarily understood as a remedy directed at an officeholder. Once the office is gone, the constitutional purpose becomes less clear and the political purpose becomes more obvious.
That does not mean the House had no grievance, and it does not mean a former president is beyond accountability. A former president can face investigation, civil liability, criminal prosecution where appropriate, and political judgment. The narrower question is whether an impeachment trial should be completed after the person being tried no longer holds the office from which impeachment is supposed to remove him.
I would answer no, and the reason is institutional design rather than anything about Donald Trump.
Constitutional tools should have limiting principles that can be explained before the next case arrives. As a former teacher, I tend to ask whether a rule can be taught clearly. A rule that says “impeachment applies to a sitting officer; after the term ends, other legal processes apply” can be taught in one sentence. A rule that says “impeachment normally applies to sitting officers, but the Senate may retain jurisdiction over a former officer when the House acted before departure and when disqualification remains an available remedy” may be defensible in a seminar, but it is much harder to cabin in political practice.
Politics does not live in footnotes.
I want to be fair about what the Senate actually did, because the public account has drifted. On February 9 the body voted 56 to 44 that it had jurisdiction. That was not a technicality slipped past anyone; it was a recorded vote on the precise question, and it went against the position I am defending here. Then the trial proceeded and the conviction vote fell ten short. So the institution has now said, on the record, that it believes it possesses this power and simply chose not to exercise it in this instance.
That is a weaker restraint than a jurisdictional refusal would have been. It leaves the power intact and the reluctance discretionary.
The historical precedent runs the same direction and I would rather teach it than hide it. The Senate tried William Belknap in 1876 after he resigned as Secretary of War, voting 37 to 29 that it had jurisdiction before acquitting him. Several senators explained that they acquitted precisely because they doubted the Senate’s authority over a private citizen. So the practice is old, rare, and contested — three adjectives that describe most of the constitutional questions we never fully settled.
The strongest argument for the 2021 trial was disqualification. If conviction could permit the Senate to bar a former president from future federal office, then the proceeding retained a meaningful remedy even after removal became impossible. I understand that argument. It is not frivolous. But it changes impeachment from an immediate check on official power into a mechanism for regulating future political eligibility, and that is a major shift.
If the country wants a constitutional mechanism for disqualifying former presidents under defined circumstances, it should say so clearly. That is what amendments and statutes are for where the Constitution permits them. What I object to is relying on an improvised extension of a removal process because the political objective feels urgent. Urgency is not a limiting principle. Neither is moral certainty. Every majority believes its crisis is special, and every coalition can find a reason its opponent’s conduct crossed a line.
Criminal law already exists. If an outgoing president commits a crime, leaving office does not erase the criminal code. Prosecutors can investigate, grand juries can act, and courts can decide questions of evidence and law. Those processes are slower and often unsatisfying to people who want an immediate political judgment, but the slowness is part of the protection.
There is also a practical consequence I would put to anybody who supported the trial. A post-term proceeding risks extending the election rather than concluding it. The country votes. Power transfers. Then Congress places the former president back at the center of national attention through a proceeding that cannot remove him from an office he already left. That may satisfy one coalition, but it teaches the other coalition that losing an election does not necessarily end the constitutional fight.
That is exactly the kind of precedent that gets reciprocated.
My preference is therefore simple. Impeach a president while he remains president, and if the House believes the conduct is grave enough, the Senate should be expected to take the trial up before the term ends rather than after. If the calendar defeats that, allow criminal law, civil law, congressional investigation, and public judgment to do the work they were designed to do.
That rule may sometimes feel incomplete. Constitutional restraint often does. The alternative is a system in which every outgoing administration wonders whether the incoming political order will keep the last officeholder on trial as a matter of institutional habit.
Dayton, OH
A plant does not keep a fired foreman on the disciplinary calendar so the new owners can feel complete. Congress did, and that is the simplest way I can explain my objection.
From a process-engineering standpoint, the first question I ask about any tool is what failure mode it was designed to correct. Impeachment addresses abuse by an officeholder who still possesses public authority. It can remove that person and, after conviction, potentially bar future service. That is a direct corrective action: the system identifies a failure, isolates it, and removes the source from the operating process.
After January 20, the operating condition had changed. Trump no longer held presidential authority. The principal corrective action — removal — was impossible because the transfer had already occurred. At that point Congress was not correcting an active office. It was evaluating past conduct and trying to impose a residual consequence. Those are legitimate governmental functions, but they are not necessarily the same function.
I want to state the counterargument accurately because I have seen it stated badly all week. Supporters point out, correctly, that the House impeached on January 13 while the office was still occupied. Under that view the Senate was completing a proceeding properly begun rather than initiating one against a private citizen. That is a real distinction and it is the best thing the other side has.
My answer is that a corrective action has to be evaluated by whether the correction is still available when it executes, not by when the work order was written. If a line stops for maintenance and the machine is removed from the floor before the technician arrives, the work order does not become a different kind of authority just because it was issued while the machine was still bolted down. You close it out and use whatever process governs equipment that has left the building.
Supporters also argue that a president could commit an impeachable offense in the final days and escape the Senate by running out the clock. That concern deserves a serious answer. Mine is that criminal law, congressional investigation, public censure, and ordinary political judgment remain available after the term, and that if Congress believes the offense must be handled through impeachment, the Senate should convene and try it before the term expires. It could have. The outgoing majority leader declined to reconvene the chamber in January, which was a choice, and choices have consequences that should be understood in advance.
That is not a perfect answer. It is a bounded one, and bounded systems are usually more reliable than systems whose jurisdiction expands to capture every edge case. Engineers learn that quickly. If a process cannot define where it starts and stops, operators eventually use it for tasks it was never designed to handle. The system becomes inconsistent, then political, then unreliable.
The immediate case was January 6. The next case will involve different conduct, a different party, and a different justification. A future House may decide that an outgoing president abused emergency powers, or deceived the country in a foreign-policy crisis, or obstructed Congress in his final weeks. Each House will point to 2021 and say the jurisdictional question was already tested — and it will be able to add that the Senate answered it in the affirmative, 56 to 44, which is a stronger citation than anybody in this argument has acknowledged.
That is how precedents travel. Not by repeating the original facts but by repeating the procedure.
There is another reason for caution: normalization destroys signal. If impeachment becomes something that follows a president out of office, future impeachments will be easier to initiate and easier for the public to dismiss. Every majority will claim its case is exceptional. Every minority will call it revenge. Eventually impeachment stops communicating extraordinary constitutional danger and starts communicating ordinary political warfare.
A reliable system needs escalation thresholds. You do not pull an emergency shutdown every time management is furious. If you do, the emergency system becomes part of routine operations and people stop treating it as exceptional. Impeachment should remain exceptional, and exceptional means rare enough that its use is itself information.
So my rule is straightforward. Use impeachment against officials who still hold the office. Move quickly if the offense occurs near the end of a term, and expect the Senate to move with the same urgency the House did. After the term, use the systems built for former officials and private citizens.
That line will occasionally let Congress leave a political argument unfinished. Not every political argument deserves a constitutional sequel. The February trial established that Congress can attempt one and that a majority of the Senate believes it may. That is why I see it less as a useful new check and more as a precedent future majorities will be tempted to reuse.
Wheeling, WV
A county commission cannot sanction a man after he leaves the meeting and still call it a rules check. That is a speech, and speeches are allowed, but they should wear their own shirt.
I do not say that because I thought January 6 was harmless. It was not. People broke into the Capitol, police officers were attacked, and members of Congress were evacuated. Anybody who worked around industrial safety or labor disputes long enough learns not to romanticize a crowd once the crowd stops listening. A crowd can become dangerous fast.
But the seriousness of the event does not answer the institutional question. It only makes it more important to answer cleanly.
Impeachment is supposed to do something to an officeholder. It is not simply a national statement that the House finds a man unfit. It carries a remedy tied to public office, and by February the country had already transferred power. The moving vans were gone. At that point I think Congress had crossed from checking power into marking a political figure, and those are not the same thing.
Here is where I have to be fair to the people I disagree with, because the record does not say what my side keeps claiming it says.
The House impeached him while he was still in the chair. That was January 13, a week before the term ended, and it was an ordinary impeachment of a sitting president however anybody feels about the charge. The trial happened later because McConnell would not bring the Senate back early. So the delay was not the House dragging its feet. It was the Senate’s own leadership setting the calendar, and then a good many people who had helped set it turned around and argued that the calendar made the trial improper.
I do not like that argument when a company makes it in a grievance and I should not like it here. If you control the schedule you do not get to use the schedule as your defense.
The Senate also voted, 56 to 44, that it had the power to hold the trial. That was a real vote on the real question and it went the other way from where I come out. Then it acquitted on the merits, 57 to 43, ten votes short. So when people tell you the Senate refused jurisdiction, they are describing something that did not happen.
I grew up in a part of the country where people have watched institutions change names while keeping old habits. We know how a special case becomes a standing practice. In industrial relations, one exception in a grievance file becomes the precedent somebody brings back three contracts later. Management remembers the exceptions it liked. Labor remembers the exceptions it liked. Pretty soon both sides are arguing from yesterday’s emergency, and Congress is no different.
The danger is not what happened to Trump. It is that a future House now has a working example with a jurisdictional vote attached. A president leaves office, the opposing party remains furious, the House says the conduct in the final weeks was uniquely dangerous, and lawyers produce a theory that is no longer theoretical because it was tested and it passed.
Supporters argued that a president should not escape consequences by committing an offense at the end of a term. I understand the frustration and I think the country already has systems for it. If a crime was committed, investigate and prosecute. McConnell said so himself on the floor after voting to acquit, which is the one part of that speech nobody on my side quotes.
I spent years around union-side labor relations. People often wanted an immediate result because they were convinced they were right. Sometimes they were right. The procedure still mattered, and it mattered most when everyone in the room was angry. The Constitution is not improved when we stretch a procedure because the person involved is hated enough to make the stretch popular. If a rule only feels safe because the current target deserves it, the rule is not safe.
There is also a regional reason I care. Places like Wheeling have spent decades watching national politics turn every argument into a morality play while practical government gets neglected. Roads, addiction, workforce decline, schools, housing — none of that stops because Washington wants another month of spectacle, and a post-term trial extends the spectacle.
My preferred rule is simple enough for anybody at a union hall. Impeachment is for the person who still has the job. If the House impeaches at the end of a term, the Senate should be expected to sit and finish it before the term runs out. When the job ends, other rules apply. Criminal courts handle crimes. Congress can investigate. Voters can judge.
What Congress should not do is create a habit of trailing former presidents with a removal process after removal is no longer possible. Habits are hard to break once both parties learn them, and we have watched that in labor law, criminal law, executive power, and war powers. A temporary tool becomes normal because the next group says, correctly, that the last group used it first.
Tyler, TX
East Texas understood the February vote as a jurisdiction question even when cable television understood it as a loyalty vote. That distinction matters to me because I have spent enough time around insurance policies, bank documents, and planning ordinances to know that a rule is not defined by whether you like the person standing on the other side of it. You ask what the rule covers, when it applies, who bears the risk, and what happens when somebody else uses the same language later.
Was Donald Trump still the president for purposes of an impeachment trial in February? He plainly was not president in the ordinary sense. Joe Biden had taken the oath. The practical remedy of removal was gone. What remained was the possibility of disqualification and the political value of a formal trial. That may be enough for some lawyers. I do not think it is enough for a durable constitutional practice.
But I have to underwrite this file honestly, and there are three facts in it that cut against me.
The first is that the House impeached on January 13, while the policy was still in force, to use language I understand. This was not a claim filed after the coverage lapsed. It was filed during the term and adjudicated later.
The second is that the Senate voted 56 to 44 that it had jurisdiction. Six Republicans joined that majority. Whatever I think of the answer, the question was squarely presented and squarely decided, and I would look foolish claiming the body ducked it.
The third is the Belknap trial in 1876, when the Senate tried a Secretary of War who had already resigned and voted 37 to 29 that it could. That case is thin and old and it is still the answer to anybody claiming February was unprecedented. It was not unprecedented. It was rare, which is a different word.
So my position has to be that the practice is available and unwise rather than that it is impossible. That is a harder argument and I would rather make the harder one.
Here is why I think it is unwise. A useful check has a clean purpose. If an officer abuses power while he holds it, Congress can remove him, and that protects the public from continuing abuse. Once the officer leaves, the risk changes. He may still face criminal exposure, civil claims, public condemnation, or political defeat. But the public is no longer exposed to his presidential authority because he does not have any. When the risk changes, the instrument should change with it.
Post-term trial feels like a shortcut around the frustration that ordinary law is slow. Slow is not always a defect. In banking, slow underwriting is annoying right up until the day the shortcut blows up. In insurance, exclusions and definitions feel fussy until a claim arrives. In law, procedure is the part people hate when they are sure they are right and appreciate when the other side is sure.
The costs of the shortcut are three. The first is institutional: future Congresses inherit the precedent without inheriting the restraint of the people who used it. The second is political: a losing coalition gains an incentive to extend the election into the new term. The third is public trust: half the country sees accountability and the other half sees revenge, and institutions have to be designed for predictable disagreement rather than for the fantasy that the next majority will share your moral confidence.
There was also a double-standard problem that made the proceeding harder to trust. Many Americans watched political leaders use comparatively restrained language about riots and attacks on public buildings through 2020, then switch to an entirely different moral and legal vocabulary after January 6. I am not claiming those events were identical. I am saying people noticed the asymmetry, and insurance people notice asymmetry. If the same conduct is described differently depending on who caused the loss, the policy stops looking neutral.
My preferred rule is narrow. If a president commits an impeachable offense, impeach and try him while he is still president, and the Senate should be expected to convene for that purpose rather than treating its own calendar as a jurisdictional defense. If the term ends before trial, the impeachment lapses and the other lanes take over: prosecutors, courts, civil litigants, congressional investigation, and voters.
That rule will occasionally leave somebody unsatisfied. Good rules do that. A rule that satisfies every immediate demand usually has no boundary, and boundaryless rules are expensive once the other side gets them. The precedent will not stay attached to Trump. Nothing in Washington stays attached to the first person it was designed for.
Long Island, NY
I draft under statutes for a living, and the February trial looked to me like constitutional work being done in the wrong tense. That is not a technical complaint. Tense changes legal relationships.
Before January 20, Donald Trump was the president. After January 20, he was not. A former president can be investigated, sued, prosecuted where the law allows, criticized, condemned, and defeated politically. But he cannot be removed from an office he no longer occupies, and that missing remedy matters because impeachment is not merely a congressional declaration that somebody behaved badly. Its structure is tied to office.
Let me set out the record accurately, since a great deal of the commentary this month has not.
The House adopted the article on January 13, while Trump held office. The Senate did not receive and take up the trial until after the transfer, and the Senate voted 56 to 44 on February 9 that it had jurisdiction to proceed. On February 13 the conviction vote was 57 to 43, short of the two-thirds required. Seven Republicans voted to convict. The Republican leader voted to acquit and then delivered a floor statement saying the former president was practically and morally responsible for the events of that day and remained liable to criminal and civil process as a private citizen.
Anybody arguing about this should be working from those four facts. Several of the arguments I have heard this week are inconsistent with at least one of them.
The strongest institutional argument for the trial is the one I find hardest to answer. If impeachment jurisdiction evaporates at noon on January 20, then a president who commits an impeachable offense in his final weeks is beyond the reach of the remedy entirely, provided the Senate calendar cooperates. That is a genuine gap, and the framers’ concern about an officer who abuses power on the way out the door is not imaginary.
My answer is that the gap is narrower than it looks and the cure is worse than the disease.
It is narrower because the Senate controls its own calendar. If a chamber believes an outgoing president has committed an impeachable offense, it can convene. The reason this trial happened in February rather than January is that the majority leader declined to reconvene, and an institution that creates its own emergency should not then rely on the emergency as a jurisdictional argument.
The cure is worse because an exception needs an administrable boundary, and “this case is uniquely serious” is not a boundary. It is an invitation to the next lawyer. January 6 was unique in many ways. The next case will not be. A future House may allege that an outgoing president abused emergency authority, or obstructed an investigation in his final weeks, or manipulated federal agencies for electoral purposes. Each majority will have counsel who can explain why its case fits the principle the Senate endorsed 56 to 44.
That is how precedent works in practice. People do not copy facts. They copy permission.
There is a fairness test I use in drafting: would I keep the rule if the names were reversed? It is brutal and useful. Would the people who favored the February trial want a Republican House to impeach a Democratic former president after he left office because of actions taken in the final weeks of his term? Some would say yes. Many would discover new jurisdictional concerns. The reverse is equally true, which is why rules should be written before the name is known.
If I were designing the rule, I would state it clearly. Impeachment jurisdiction ends when the officer leaves the covered office, and an article adopted but not tried lapses with the term. If the country wants a different constitutional mechanism for disqualifying former officeholders, it should create one explicitly rather than stretching an office-removal process into the gap.
Clarity would help both parties, and it would protect Congress from one of its worst habits: substituting spectacle for legislation. A former president is politically irresistible. A trial guarantees attention. Drafting durable statutes does not. If post-term impeachment remains available, future majorities will face strong incentives to use it precisely when governing becomes difficult.
The Senate declined to convict, but the jurisdictional theory now has citations, speeches, votes, and legal memoranda behind it. Available tools get used. My preference is to label this one unavailable before another majority decides that its anger is the exception that proves the rule.
Cheyenne, WY
If he is already out of the chair, you are not checking a president. You are marking a man. That is my answer, but a weekly piece is supposed to show the ledger behind the answer, so here is the ledger.
Impeachment has a job, and the job is to remove an officer who should not still have it. The Senate may also disqualify after conviction. Fine. But the first purpose is not decorative; it tells you what kind of tool you are holding. By February, Donald Trump was no longer president, and that should matter.
I am an accountant, so I am suspicious of categories that change names while everybody insists the treatment stays the same. If an asset leaves the books, you do not keep depreciating it because you are angry about how it performed last quarter. If a liability is paid, you do not keep the payable open because you want one more meeting about it. The status changed. President became former president.
Now, the part of the ledger my own side keeps leaving out.
The House impeached him on January 13, while he still held the office. That entry is dated correctly and I cannot post it to the wrong period just because the trial ran late. The Senate then voted 56 to 44 that it had jurisdiction, which means the institution examined the question and answered it against the position I am arguing here. And in 1876 the Senate tried Secretary Belknap after he resigned, voting 37 to 29 that it could. So the treatment I am objecting to has authority behind it, thin and old, but real.
An honest set of books shows the entries that do not help you. If I only reported the favorable ones I would be doing advocacy rather than accounting, and I have watched enough people do that in both directions this month.
So my position is not that the Senate lacked the power. It is that the power should not be exercised, and that a body which believes it holds a dangerous instrument ought to say why it is putting the instrument down rather than leaving it on the table for the next majority.
The House had reasons to be angry. January 6 was ugly. People broke into the Capitol, police were hurt, and government business was disrupted. None of that needs to be cleaned up for my argument, because ugly conduct can still be the wrong fit for a particular remedy. If crimes occurred, use criminal law. If Congress wants facts, investigate. If Congress wants to condemn, pass a resolution. If a president commits an impeachable offense while he is still president, try him while the office can still be taken away.
A future House will use this. That is not a prediction about which party is worse; it is a prediction about people. Give a political body a tool and a reason and somebody will eventually use the tool, and give them a precedent and they will call the use responsible. The next case will not be January 6. It may be a war decision, an emergency order, a pardon, a refusal to give Congress records — something done in the last weeks of a term. The House will say the conduct was extraordinary, the president will already be gone, and the lawyers will cite 2021 and the vote count.
Bright lines save money, time, and trust. Rules with too many exceptions need lawyers, and lawyers cost money. Political rules with too many exceptions need television, and television costs trust. “Only sitting officers may be tried” is a bright line. “Former officers may still be tried under certain circumstances because disqualification remains available” is a lawyer line, and lawyer lines grow. They grow because every future case has facts somebody says are special, and special facts become special doctrine, and special doctrine becomes normal doctrine after enough years, until nobody remembers why the limit existed.
The strongest argument against me is that a president should not get immunity for last-minute misconduct merely because the calendar ran out. I agree with the first half and disagree with the remedy. Leaving office should not create immunity. It should change jurisdiction, and those are different things. A former president should answer to criminal and civil law where those laws apply, to history, and to voters if he runs again. He should not stay inside a removal process after removal is impossible.
I would keep the same line if the parties were reversed, and especially then. A good rule is one you can hand to people you distrust. If I do not want the next Congress using post-term impeachment against somebody I support, I should not defend the power because the last Congress used it against somebody I disliked. That is bookkeeping too — apply the same method to both columns.
The February trial did not create a useful new check in my view. It created an available habit with a jurisdictional vote attached, which is worse than what we had before, because before there was only Belknap and now there is Belknap plus a modern precedent. The acquittal slowed the habit. It did not erase it.
