Some legal analysts argue that the impeachment of a president cannot constitutionally continue after the president’s term has expired. (Former federal appellate judge J. Michael Luttig argues here, law professors Bruce Ackerman and Gerard Magliocca are advancing the claim here.) The main reason the lawsuit is founded is simple: impeachment is a means of removing a president before the next election . After the President’s term of office has expired, the right to exist for the impeachment procedure ends. However, by confusing this understanding of impeachment, two early constitutions actually limited impeachment to after the director general’s term of office ended. These states did not allow the impeachment of a seated governor. Additionally, a Texas Supreme Court ruling in an impeachment case provides a practical reason why impeachments cannot be limited to sedentary executives.
First, consider the impeachment of Texas Governor James E. Ferguson in 1917. Ferguson resigned from his position as governor before his Senate conviction, so he was not a seated governor when the Texas Senate made him impeachable condemned. He then tried again in 1924 to run for governor. The Texas Supreme Court ruled that Ferguson’s impeachment actually took place, even though Ferguson resigned from office prior to his Senate conviction.
The Texas Constitution, like the US Constitution, does not limit the sentence from impeachment to impeachment. Article XV, Section IV of the Texas Constitutions provides that “the sentence in impeachment cases includes only impeachment and disqualification from serving an honorary, trust, or profit position in that state.” This language is almost identical to the language of Article 1, Section 3 of the US Constitution. Both constitutions allow for future disability and disqualification as part of the outcome of an impeachment.
Despite the Senate conviction, Ferguson tried again in 1924 to run for governor. Against a lawsuit filed to prevent the Texas Democratic Party from including him in the main election, Ferguson argued that his impeachment trial ended without conviction or judgment because he resigned before the Senate ruled the case.
In its ruling in Ferguson v Maddox, the Texas Supreme Court briefly summarized Ferguson’s reasoning:
If the Senate were only empowered to step down, there was some reason to say that it should not have proceeded if the governor had anticipated, so to speak, his impending judgment. However, under the Constitution, the Senate can not only remove the offending official, but also exclude him from any further office, and in relation to this latter matter his resignation is completely irrelevant. For their protection, the people should have the right to remove an unfaithful official from public office. To protect them, it is also necessary that the perpetrator is denied the opportunity to sin against him a second time. The purpose of the constitutional provision must not be thwarted by resigning in the eleventh hour.
The rationale applies to impeachments under the US Constitution. If a president believes he is sentenced by the Senate and perhaps hopes to run again for president or other national office, the president could avoid disqualification from future offices by simply stepping down before the Senate is sentenced.
Aside from the possibility of manipulation when impeachment is limited to the term of office of an official, at least two early state constitutions did not even allow the impeachment of a seated state executive. Impeachments could only take place after the chairman of the board had left the company.
The Ferguson case also shows that the possibility that a charged official might successfully run for office again is not too far-fetched. James Ferguson proved so popular that his wife – “Ma Ferguson” – took his place and was elected when he could no longer run for governor in 1924. Ma Ferguson did not have a political identity of its own. She ran as a replacement for “Pa” Ferguson. Popular support for “Pa” was apparently enough that he could be re-elected despite his earlier impeachment.
Aside from the possibility of strategic manipulation when impeachment is limited to the term of office of an official, at least two early state constitutions did not even allow the impeachment of a seated state executive. Impeachments could only take place after the chairman of the board had left the company.
The Virginia Constitution of 1776 – a particularly important and well-known example of the national founders – provides:
The governor, when in office, and others who violate the state, either through maladministration, corruption or any other way that may jeopardize the security of the state, are punishable by the House of Representatives. . . . If found guilty, he or she must either be permanently disabled to hold any office under government, or be temporarily removed from office or subject to such pain or punishment as the law requires (Emphasis added).
The fact that a former governor is removed from a “pro tempo office” in the last sentence refers to a later state office that the former governor held at the time of his impeachment after the end of his term as governor.
Article 23 of the Delaware Constitution of 1776 also provided: [state] President if not in office and within eighteen months thereafter. . . is indicted by the Assembly House before the Legislative Council. . . “Possible verdicts were that the defendant would be” forever disabled from holding office under government, or temporarily removed from office, or subjected to such pain and punishment as the law requires. “
Interestingly, the understanding that a director general might be indicted at a later date after leaving office was apparently so well received that the Delaware constitutionalists limited the time limit for impeachment to eighteen months after an official departure from office.
The modern understanding of impeachment identifies the practice with impeachment so much that we can only wonder what the purpose would be of restricting impeachments to officials who have already resigned.
The answer comes from a simple justification of the separation of powers. Constitutionalists in these states feared that allowing their lawmakers to remove senior executives while the executives were still in office would give lawmakers too much power over those executives. Legislators could then use the fear of impeachment to induce executives to bid, undermining the purpose of separating the executive from the legislative power.
While the U.S. Constitution drew a different line, allowing presidents to be impeached during their tenure, the fear that led Virginia and Delaware to restrict impeachment to after an executive left office becomes in Hamilton’s discussion of impeachment in Federalist 65 implied Hamilton writes that creating a “well-constituted court for impeachment proceedings” is “difficult. . . in a government that was fully elected. “The problem is the political fear that impeachment decisions are” governed more by the comparative strength of the parties than by actual demonstrations of innocence or guilt “.
The possibility of political abuse of impeachment authority apparently affected the state constitutionalists in Virginia and Delaware so much that, in order to preserve the separation of powers between the branches, they immunized state executives from impeachment during their tenure.
Provisions in the constitutions of the state of Virginia and Delaware – especially under the influence of politicians and experiences in Virginia – would have been known at the time the US constitution was drafted. This experience suggests that without an explicit limitation of impeachment to current incumbents, the text of the US Constitution would not have been read to limit impeachment to a presidential term. In addition, ex-Governor Ferguson’s experience in Texas offers an additional reduction to the absurdity of the idea that impeachment should only be restricted to sedentary executives.