The historic impeachment trial of only the third President in the history of the United States is drawing to a close. Donald J. Trump was impeached by a majority of House of Representatives on December 18th, 2019 on charges of abuse of power and obstruction of Congress. His impeachment trial began on January 16th, 2020 in the Senate, presided over by Chief Justice John Roberts. After deciding against calling any witnesses to testify, the Senate scheduled the vote on whether or not to convict the President for February 5th, 2020. If the Senate voted to remove Trump from office, what are the collateral consequences? Can he still run for reelection in 2020?
The U.S. Constitution provides the following rules for impeachment of federal officials:
- The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment. – U.S. Const. art. I, §2, cl. 5.
- 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. – U.S. Const. art. II, §4.
- The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present. – U.S. Const. art. I, §3, cl. 6.
- 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; but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law. – U.S. Const. art. I, §3, cl. 7.
No elected official has ever been removed from office under the impeachment authority of Congress. In the entire history of the United States, 20 federal officers have been impeached (three Presidents, 15 federal judges, one Cabinet Secretary and one U.S. Senator). Of those 20 impeachments, only 8 were convicted and removed from office by the Senate. All eight of them were federal judges who were appointed to their positions, not elected. Two presidents, Andrew Johnson and Bill Clinton, were acquitted in their impeachment trials. The sole U.S. Senator ever impeached, William Blount, was charged by the House of Representatives for conspiring with Great Britain to seize Louisiana in the 1790s for personal economic reasons. However, the Senate determined that the House lacked the authority to impeach a U.S. Senator and declined to try him, although he was expelled from the Senate under their own rules.
The immediate effect of conviction by the Senate upon a two-thirds vote is removal from office. The Senate cannot assess a fine or order the removed federal official to go to jail or prison as this trial is not a criminal proceeding. However, the Senate may subsequently vote on whether the removed official shall be disqualified from again holding an office of public trust under the United States. Of the eight federal judges that were impeached and removed from office, only THREE were disqualified from holding federal office again:
- Judge West Hughes Humphreys (1806-1882), a U.S. District Court Judge in Tennessee, impeached in 1862 on several charges of supporting the Confederate States of America during the Civil War. He was convicted, removed from office and barred from holding office under the United States for life (he served as a Confederate District Court judge in Tennessee until the end of the war).
- Judge Robert Wodrow Archbald (1848-1926), a U.S. Circuit Court Judge on the Third Circuit Court of Appeals, impeached in 1912 on 13 charges of corruption (e.g. entering into agreements with litigants to benefit himself, accepting gifts from litigants and attorney and corrupt practices during jury selection). He was convicted on 5 charges by two-thirds vote and removed from office. The Senate subsequently voted 39 to 35 in favor of disqualifying him from holding office under the United States for life.
- Judge Gabriel Thomas Porteous Jr. (1946 – ), a U.S. District Court Judge for the Eastern District of Louisiana, impeached in 2010 on 4 counts including perjury. He was convicted of all counts and the Senate subsequently voted 94 to 2 in favor of disqualifying him from holding office under the United States for life.
It is worth noting that one impeached federal judge, Alcee Lamar Hastings, was removed but not disqualified from office and he was elected to the U.S. House of Representatives in 1992 (he has held office ever since).
While a conviction requires a two-thirds vote to remove from office, a subsequent vote to bar the individual from future federal office for life only needs to be passed by a simple majority. For example, Judge Archbold was only barred from office in 1912 by a slim majority of senators. The U.S. Senate codified their rules regarding removal in Publication R44260, pg. 2:
- “Should a conviction occur, the Senate retains limited authority to determine the appropriate punishment. Under the Constitution, the penalty for conviction on an impeachable offense is limited to either removal from office, or removal and prohibition against holding any future offices of “honor, Trust or Profit under the United States.” Although removal from office would appear to flow automatically from conviction on an article of impeachment, a separate vote is necessary should the Senate deem it appropriate to disqualify the individual convicted from holding future federal offices of public trust. Approval of such a measure requires only the support of a simple majority.”
Despite the Senate rules, some legal scholars believe that the U.S. Constitution is clear and that a two-thirds vote is required to bar the impeached official from future office for life. Is there any recourse in the judiciary for an official aggrieved by the impeachment process? In Hastings v. United States, 802 F.Supp. 490 (D.D.C. 1992), former Judge Alcee Hastings filed suit against the government stating he was impeached and removed in violation of the U.S. Constitution. He claimed that Congress could not impeach him for the substantially same conduct that he was acquitted of by a federal jury in a felony matter. In addition, he claimed that it was improper for a Senate committee to convict him instead of the whole Senate body. The district court agreed and ruled the conviction and impeachment must be overturned. However, the U.S. Supreme Court nullified and vacated that opinion when it ruled in Nixon v. United States, 506 U.S. 225 (1993) that impeachment is a political question and could not be resolved by the judicial branch. In that case, former Judge Walter Nixon challenged the constitutionality of his impeachment and conviction when he was removed by a vote of a Senate committee instead of the full body (like Hastings before). However, the nine justices unanimously ruled that the U.S. Constitution and the separation of powers prevented the judicial branch from reviewing impeachment decisions (after all, this was an express check and balance reserved by the legislative branch on the courts). Besides, the Constitution gave the Senate the “sole power to try all impeachments”, meaning that the judicial branch was not intended to be included. Therefore, Congress reserved the right to determine its own rules regarding impeachment proceedings.
In sum, the results of a conviction after the impeachment trial can also involve disqualification from future federal office for life on a lesser majority vote standard. It should be noted that this ban only applies to federal office and not state office. Should President Trump be removed from office by the Senate and banned from other federal office for life, there is nothing that can stop him from running for office in his home state (or any other state for that matter). Is the world ready for Governor Trump of New York State?
