PRESIDENTIAL PARDONS

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Commentary

"...AND STAY OUT!":
THE CONSTITUTIONAL CASE FOR POST-PRESIDENTIAL IMPEACHMENT

Professor Brian Kalt
Detroit College of Law, Michigan State University

Appearances can be deceiving, and so it will require further investigation to determine whether Bill Clinton improperly traded pardons for bribes. U.S. Attorney Mary Jo White has initiated a criminal investigation of the Rich and other pardons, but the stakes may become even higher. As Senator Arlen Specter said on Fox News Sunday some weeks ago, impeachment of the former president may be an option as well.

I wrote a little-noticed op-ed on the potential for post-term impeachments back in June 1999. At the time, the only outlet I could find to publish it was in another country. But constitutional law is best conceptualized in the abstract; people's strong opinions about Bill Clinton no doubt will influence their interpretation of Congress's impeachment power, just as they did in 1998. It is not good for the interpretive process to have constitutional law shaped by political passions. So I'll repeat what I said then, and what I have believed since long before President Clinton's actions were the source of the question: presidents can indeed be impeached after leaving office and disqualified from holding further federal office.

While the ability to hold a "late impeachment" seems fairly clear to me, it is not undisputed. To be sure, the Constitution does not address the issue directly one way or the other. Nevertheless, there is, as professor Michael Gerhardt has put it, a "surprising consensus" among scholars on this issue.

English practice allowed post-term impeachment. Other perceived excesses of the English impeachment system were limited explicitly by the Constitution. Impeachment can only be for high crimes and misdemeanors; punishment cannot include death, as it did in England; a supermajority is required for conviction. The English practice of post-term impeachment, however, was not similarly limited in the Constitution.

Article II specifies that sitting civil officers are to be removed upon conviction. It does not say, however, that the ability to impeach ends with an official's service. Given that executive officials have limited terms, there was debate at the Constitutional Convention over allowing an already-powerful Congress this weighty check on the executive. The Framers decided that Congress should have this power, and so specified the ability to remove sitting officials. Ex-officials? That went without saying, and nothing in Article II eliminates the possibility.

The punishment described in the Constitution for impeachment includes not just removal from office, but also "disqualification to hold and enjoy any office of honor, trust or profit under the United States." That is, a successful impeachment does not say merely "Get out!" to a sitting President; it adds an emphatic "And stay out!" While removal becomes moot after a President leaves office, disqualification does not.

Disqualification is a significant punishment, not just an afterthought added to removal. Even though only one ex-president (William H. Taft) has ever actually served in a federal "office of honor, trust or profit," it would be a substantial public disgrace for Bill Clinton to be stripped of the option of federal employment for the entirety of his post-presidential life. Put another way, it wuld be no small blot for Clinton to carry an indelible declaration that he is, de jure, unworthy of honor, trust, or profit. (For the record, this exclusion would not prevent him from being elected to Congress, which is not considered a position of "honor, trust or profit" for these purposes. Read whatever you like into that.)

Finally, on a historical note, Secretary of War William Belknap was unanimously impeached by the House in 1876 shortly after he had resigned. The Senate took up the trial, voted on whether they had jurisdiction over an ex-official, and decided by a majority vote that they did. Belknap was nevertheless acquitted, largely because he had already left. This was a determination that Belknap should not have been convicted, not that he could not have been. The Senate voted definitively on the latter point, and provided the only precedent one way or the other on this question.

Richard Nixon did not suffer a late impeachment, though scholars at the time concluded that he could have. In part, this was because once he resigned, most felt that he had suffered enough. By contrast, only time impelled Bill Clinton's exit, and he waited literally almost until the last minute to pardon Marc Rich.

The truth may vindicate Clinton completely. Then again, sadly, it is easy to believe the worst about Bill Clinton, and truth has a way of catching up with him, if slowly. In 1846, Congressman and ex-President John Quincy Adams argued to the House of Representatives that he was "amenable to impeachment" for his actions as Secretary of State and President a generation earlier. The principled words of President Adams should remind Americans of their options in dealing with his somewhat less scrupulous successor.

March 1, 2001


Brian Kalt teaches at the Detroit College of Law, Michigan State University. His is the author of "Pardon Me?: The Constitutional Case Against Presidential Self-Pardons," 106 Yale Law Journal 779 (1996).

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