A comment on late impeachment
holzman and rmjwell conversed on the need to vote out those who stalled on impeachment after running on it as a platform, and then of course about impeaching the administration personnel after they leave office; viz holzman's comment in his journal:
Just because a President has left office doesn't mean he -- and his whole damn gang -- can't be impeached. Nor is it an empty gesture. It may or may not affect his pension, but someone who has been impeached and convicted is Constitutionally barred from holding any sort of public office again.
I agree that those who ran on an impeachment platform, then said it was "off the table" or dragged their feet, need to be voted out as lying sacks of political baggage. Note that includes the Speaker of the House among others. I've been beyond disappointed in that clutch of political hacks.
So, to the real provocative issue - if it's perhaps empty to impeach someone who will soon be out of office, is it an even-emptier gesture to impeach someone after they are out of office? That's a more complicated question than one quick comment suggests!
Impeachment of a former federal office-holder does appear to be available without much counter-argument, but remember that impeachment itself just sets the stage for the Senate to try the case. Impeachment is like an indictment in that respect. Now, the issue of whether the Senate can try a former office-holder upon impeachment has come before the Senate only twice in US history. In each case, the House had impeached a former office-holder and passed it to the Senate for trial. In one case, the Senate decided it did not have jurisdiction over a former civil officer; and once, it decided that it did. The latter is the more recent of the two cases, though it was over a hundred years ago. The issue has never gone to the Supreme Court (or any 'court' other than the Senate) because, in the one case where it went far enough to be appealed, it seems the penalty was too meaningless for the impeached/convicted to bother (see below).
A fantastic summary of the issues:
http://www.law.cornell.edu/anncon/html/art2frag42_user.html#fnb747ref
I think we can all agree that the impeachment process is not a substitute for criminal prosecution. Trial of an impeachment does not even activate the double-jeopardy provisions of the Constitution. In a federal "conviction" from impeachment the only penalty is removal and barring from future federal office; one hopes a normal criminal process would occur subsequently if the crimes were serious enough.
But as holzman suggests, it is at heart a two-armed process: a power for removal from office, and a political process to show disapproval. Operatively, though, its power ultimately affects those in office, though it has once been used to show disapproval even when the first power was mooted, for what good or little that may be worth. That none of us probably ever learned of it in school is telling. In the one case of late impeachment where the Senate did try the case, the accused didn't even mount a defense after losing the jurisdiction question, because, basically, it had no effect on him personally. He was impeached when he was already out of office - the trial at that point was akin to a kangaroo court without teeth. Again, he didn't even bother to take the Constitutional question of jurisdiction to the Court.
So, as to impeachment being an empty gesture when they'll be out of office by the time the trial is done, well, it's certainly even more "empty" when the person isn't even in office any more, given that it is almost certainly going to be subject to the question of whether it can even be tried in the Senate. So we'll have the time in the House to impeach. Then the jurisdiction question in the Senate. Then appeal to the Supreme Court. Then perhaps back to trial in the Senate (or the Senate creation of a Constitutional crisis as bad as what they accuse the President of). What a circus. What a DELAY to delivering judgment when it could have gone straight to the criminal justice process.
If the official committed a criminal act, once they are no longer in possession of the office, we can just skip the whole impeachment process, get an indictment from a grand jury and then try them in a court of law. They are no longer protected by or in possession of (and able to abuse) any powers of the office. Indeed, in the only former-official federal impeachment case that finally went to trial by the Senate, one possible reason the Senate decided to overturn precedent and take jurisdiction is that the underlying act wasn't actually criminal, so without impeachment there would have been no other reprimand (another essay can be had on the score of what "misdemeanor" actually means in the Constitution). After the person has left office, taking it from House impeachment to Senate trial would almost certainly DELAY the real criminal trial, possibly taint evidence making it inadmissible in the real trial, ruin the ability to get an unbiased jury (forcing mistrial), and even push some acts past the statutes of limitation. Appoint a prosecutor and let the normal criminal justice system handle it since they are out of office.
I think time at Club Fed expresses public disapproval just fine. Worked for the ex-governor of Illinois.
Maybe most importantly, why should we act like a person who has committed serious criminal acts while in office is entitled to a special trial with no real penalty by dint of being an EX-official? Just so one party can publicly state its disapproval? Win the publicity war but never really punish the bad actor? When the person's already out of office, that's what impeachment trials are, compared with criminal prosecution. The heck with that.
For a discussion of what impeachment means in the context of the US Constitution: http://www.law.cornell.edu/anncon/html/art2frag42_user.html#fnb747ref
And broader: http://www.law.cornell.edu/background/impeach/impeach.htm
Let's also be clear that the hue and cry for late impeachment is based on the public's reading of the ABSTRACT of one 2001 law review article. It isn't going to be as easy as folks are making it out to be, nor as easy as the abstract makes it out to be. The 2001 article itself makes it quite clear that the arguments for late impeachment are a lot more complicated (and convoluted) than the argument against. It's a real edge theory piece. You can read the whole thing here -- http://papers.ssrn.com/sol3/papers.cfm?abstract_id=286277
The Duke article does a better good job of discussing the issues, I think - http://www.law.duke.edu/shell/cite.pl?49+Duke+L.+J.+1 . In case someone thinks I am offering it as a counter to the TX one, note that it doesn't argue against the possibility of impeachment of ex-officials at all. Quite the contrary - it lays out the history, the law, and how late impeachment has actually worked; it is also I think better researched and written.
Just because a President has left office doesn't mean he -- and his whole damn gang -- can't be impeached. Nor is it an empty gesture. It may or may not affect his pension, but someone who has been impeached and convicted is Constitutionally barred from holding any sort of public office again.
I agree that those who ran on an impeachment platform, then said it was "off the table" or dragged their feet, need to be voted out as lying sacks of political baggage. Note that includes the Speaker of the House among others. I've been beyond disappointed in that clutch of political hacks.
So, to the real provocative issue - if it's perhaps empty to impeach someone who will soon be out of office, is it an even-emptier gesture to impeach someone after they are out of office? That's a more complicated question than one quick comment suggests!
Impeachment of a former federal office-holder does appear to be available without much counter-argument, but remember that impeachment itself just sets the stage for the Senate to try the case. Impeachment is like an indictment in that respect. Now, the issue of whether the Senate can try a former office-holder upon impeachment has come before the Senate only twice in US history. In each case, the House had impeached a former office-holder and passed it to the Senate for trial. In one case, the Senate decided it did not have jurisdiction over a former civil officer; and once, it decided that it did. The latter is the more recent of the two cases, though it was over a hundred years ago. The issue has never gone to the Supreme Court (or any 'court' other than the Senate) because, in the one case where it went far enough to be appealed, it seems the penalty was too meaningless for the impeached/convicted to bother (see below).
A fantastic summary of the issues:
http://www.law.cornell.edu/anncon/html/art2frag42_user.html#fnb747ref
I think we can all agree that the impeachment process is not a substitute for criminal prosecution. Trial of an impeachment does not even activate the double-jeopardy provisions of the Constitution. In a federal "conviction" from impeachment the only penalty is removal and barring from future federal office; one hopes a normal criminal process would occur subsequently if the crimes were serious enough.
But as holzman suggests, it is at heart a two-armed process: a power for removal from office, and a political process to show disapproval. Operatively, though, its power ultimately affects those in office, though it has once been used to show disapproval even when the first power was mooted, for what good or little that may be worth. That none of us probably ever learned of it in school is telling. In the one case of late impeachment where the Senate did try the case, the accused didn't even mount a defense after losing the jurisdiction question, because, basically, it had no effect on him personally. He was impeached when he was already out of office - the trial at that point was akin to a kangaroo court without teeth. Again, he didn't even bother to take the Constitutional question of jurisdiction to the Court.
So, as to impeachment being an empty gesture when they'll be out of office by the time the trial is done, well, it's certainly even more "empty" when the person isn't even in office any more, given that it is almost certainly going to be subject to the question of whether it can even be tried in the Senate. So we'll have the time in the House to impeach. Then the jurisdiction question in the Senate. Then appeal to the Supreme Court. Then perhaps back to trial in the Senate (or the Senate creation of a Constitutional crisis as bad as what they accuse the President of). What a circus. What a DELAY to delivering judgment when it could have gone straight to the criminal justice process.
If the official committed a criminal act, once they are no longer in possession of the office, we can just skip the whole impeachment process, get an indictment from a grand jury and then try them in a court of law. They are no longer protected by or in possession of (and able to abuse) any powers of the office. Indeed, in the only former-official federal impeachment case that finally went to trial by the Senate, one possible reason the Senate decided to overturn precedent and take jurisdiction is that the underlying act wasn't actually criminal, so without impeachment there would have been no other reprimand (another essay can be had on the score of what "misdemeanor" actually means in the Constitution). After the person has left office, taking it from House impeachment to Senate trial would almost certainly DELAY the real criminal trial, possibly taint evidence making it inadmissible in the real trial, ruin the ability to get an unbiased jury (forcing mistrial), and even push some acts past the statutes of limitation. Appoint a prosecutor and let the normal criminal justice system handle it since they are out of office.
I think time at Club Fed expresses public disapproval just fine. Worked for the ex-governor of Illinois.
Maybe most importantly, why should we act like a person who has committed serious criminal acts while in office is entitled to a special trial with no real penalty by dint of being an EX-official? Just so one party can publicly state its disapproval? Win the publicity war but never really punish the bad actor? When the person's already out of office, that's what impeachment trials are, compared with criminal prosecution. The heck with that.
For a discussion of what impeachment means in the context of the US Constitution: http://www.law.cornell.edu/anncon/html/art2frag42_user.html#fnb747ref
And broader: http://www.law.cornell.edu/background/impeach/impeach.htm
Let's also be clear that the hue and cry for late impeachment is based on the public's reading of the ABSTRACT of one 2001 law review article. It isn't going to be as easy as folks are making it out to be, nor as easy as the abstract makes it out to be. The 2001 article itself makes it quite clear that the arguments for late impeachment are a lot more complicated (and convoluted) than the argument against. It's a real edge theory piece. You can read the whole thing here -- http://papers.ssrn.com/sol3/papers.cfm?abstract_id=286277
The Duke article does a better good job of discussing the issues, I think - http://www.law.duke.edu/shell/cite.pl?49+Duke+L.+J.+1 . In case someone thinks I am offering it as a counter to the TX one, note that it doesn't argue against the possibility of impeachment of ex-officials at all. Quite the contrary - it lays out the history, the law, and how late impeachment has actually worked; it is also I think better researched and written.