Florida Representative Matt Gaetz: “You actually can impeach a former President, FWIW”

Matt Gaetz is a Republican representing the 1 District of Florida to the US House of Representatives.

A few days ago, Representative Gaetz tweeted this:

If you are like us, your reaction is “how is that possible?”

Keith Wittington over at the Volkh Conspiracy talks about it:

This is not an easy case, and there is not a scholarly consensus on this point, but it is plausible that it is within the authority of the House to impeach former federal officers.

Rather awkwardly, the framers separated the impeachment power into several different clauses sprinkled across the Constitution. Notably, the Constitution grants to the House of Representatives the “sole power of impeachment.” It separately specifies that the president, vice president and other civil officers shall be removed if convicted upon an impeachment, and limits the Senate to doing no more than removing from office and disqualifying from future office when rendering a judgment in an impeachment trial.

In practice, disqualification from future office has rarely been an issue in federal impeachments. The House has rarely requested it. Only three officers, all judges, have been disqualified from future office by the Senate. Removing a problematic officer has often been treated as the sole purpose of the impeachment power, but I think that is a mistake. The impeachment power can and has served other purposes than just removing a sitting officer. If removal is the only purpose an impeachment can serve, then there would never be any point in the House voting to impeach when it knew the Senate would not convict. But sometimes it makes sense to impeach even when removal is not an available option.

When the framers entrusted the House with the power of impeachment, what did they think that power encompassed? They did not say very much about that. But the English parliamentary practice from which they were borrowing did not restrict impeachments to current officeholders. When the impeachment power was transplanted to American shores, it was explicitly shorn of some British features. Americans did not impeach private citizens. American legislatures were prohibited from imposing punishments other than removal and disqualification on those who had been convicted in impeachment trials. American legislatures were restricted to impeaching only for a limited type of offense.

But some state constitutions explicitly authorized their legislatures to impeach former officers, sometimes while imposing a time limit on how long the former officer was at risk of impeachment, and none prohibited it. The federal constitutional framers did not clearly rule it out, though they were aware that such applications were understood to be within the scope of a legislative power of impeachment.

If impeachments are a “grand inquest” into the conduct of public officials, then there is no necessary reason why that inquest should be cut off by an officer’s departure from office. If impeachments are to deter public officers from gross misconduct, then leaving the door open to a legislature scrutinizing the conduct of former officers is potentially useful. If impeachments are to protect the republic from dangerous officeholders, then the ability to disqualify a former officer who has been demonstrated to have committed grave abuses of office in the past might be valuable.

Wittington goes onto note:

The House practice manual accepts that the impeachment power extends to former officers, though it admits that since removal is generally the “primary objective” of an impeachment the proceedings have usually been brought to an end if the officer resigns. Brian Kalt has provided the most comprehensive analysis of “late impeachments,” and I find him persuasive.

Because this is obviously a “crazy claim,” the Washington Post “Fact Checker” asked legal scholars who for the most part, said impeaching a former office holder (which includes more than the President) is possible, but not likely even though it has happened in the past.

Wittington makes this very salient point:

But this is also a good opportunity to reemphasize the importance of distinguishing what a government official or institution can do from what it should do. It is possible to abuse your discretionary authority. An act can be wrong and contrary to the health of the constitutional regime even if it is within a government official’s lawful authority. An officer can be impeached for such an act. Members of Congress cannot be impeached, but they can certainly be condemned for such actions.

The House may have the constitutional authority to impeach a former president, but such acts are highly disfavored within our constitutional practice and the House would have an extraordinary argumentative burden to bear to justify such an action. It might be the case that the House should impeach a former officer so as to fortify constitutional norms and send a clear message to other officers that the behavior in question is unacceptable. But we should not want to go down the road of simply using the impeachment power to settle scores with the leaders of the other political party. It would quickly squander the solemnity and weight of the impeachment power while heightening partisan tensions and fostering greater animosity and distrust.

Gaetz was wildly mocked and criticized for his tweet. He was accused of being delusional, a drunk, and a host of other things.

Frankly, we never considered the idea, but as there is precedence, and the authority exists within the House rules and more importantly within the Constitution, it appears that Gaetz was right.

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