The Constitution does not directly address whether Congress may impeach and try a former President for actions taken while in office. Though the text is open to debate, it appears that most scholars who have closely examined the question have concluded that Congress has authority to extend the impeachment process to officials who are no longer in office. As an initial matter, a number of scholars have argued that the delegates at the Constitutional Convention appeared to accept that former officials may be impeached for conduct that occurred while in office. This understanding also tracks with certain state constitutions predating the Constitution, which allowed for impeachments of officials after they left office. It also accords with the British impeachment of Warren Hastings two years after his resignation as the governorgeneral of Bengal. The impeachment occurred during the Convention debates and was noted expressly by the delegates without expressing disapproval of the timing. While the Framers were aware of the British and state practices of impeaching former officials, scholars have noted that they chose not to explicitly rule out impeachment after an official leaves office. But the Framers nonetheless made other highly specific decisions about the impeachment process that departed from the British practice, such as requiring a two-thirds majority in the Senate for a conviction when the British system allowed conviction on a majority vote.
That said, there are textual arguments against Congress’s authority to apply impeachment proceedings to former officials. The plain text of the Constitution, which states that “[t]he President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment ... and Conviction,” could be read to support the requirement that the process only applies to officials who are holding office during impeachment proceedings. Some have argued that the Constitution links the impeachment remedy of disqualification from future office with the remedy of removal from the office that person currently occupies; the former remedy does not apply in situations where the latter is unavailable. In his influential Commentaries on the Constitution of the United States, Justice Joseph Story claimed that impeachment is inapplicable to officials who have left their position because removal—a primary remedy that the impeachment process authorizes—is no longer necessary.
But various scholars have taken issue with Justice Story’s reasoning, and others have argued that Justice Story’s argument was primarily concerned with simply distinguishing the American practice from the British, which allowed for impeachment of private citizens who had not been part of the government, and who could potentially face severe punishments, including in some cases life imprisonment, as a result of impeachment. Some have emphasized that the impeachment provisions of the Constitution provide that the remedies of removal from office and disqualification are distinct components of the remedy for impeachable misconduct. One scholar asserts that the two clauses of removal and disqualification can be thought of as “fixing a minimum and maximum penalty” in cases of conviction in an impeachment trial; consequently, an official’s resignation following an initial impeachment by the House but before conviction in the Senate may not “deprive the people of the full measure of the protection afforded them” through the additional remedy of disqualification. Scholars have noted that if impeachment does not extend to officials who are no longer in office, then an important aspect of the impeachment punishment is lost. If impeachment does not apply to former officials, then Congress could never bar an official from holding office in the future as long as that individual resigns first. According to one scholar, it is “essential” for Congress to have authority to impeach and convict former officials in order to apply the punishment of disqualification; otherwise Congress’s jurisdiction would depend on the whims of the individual who engaged in misconduct. Another scholar notes that the grave nature of the disqualification punishment indicates that it should apply independently of the need for removal.