The Constitution says nothing specific about whether Congress can impeach an official after his or her term. That didn’t stop the House of Representatives from impeaching the Secretary of War in 1876, after he left office — or the Senate from trying him. And history tells us Congress got it right that year, just as they apparently will again in 2021. The Framers based the impeachment process on the English Parliament’s power to impeach. And English impeachments could start after the official left office. In fact, Parliament impeached an official named Warren Hastings in 1787 and tried him between 1788 and 1795 — though he left office in 1784. The Hastings impeachment battle raged while the Framers wrote the Constitution, and it played a central role in their thinking.
The Impeachment of Warren Hastings
Warren Hastings served as Britain’s first Governor General in India, from 1773 to 1784. Opinions vary on the quality of his administration, but he certainly made enemies. He left office in December of 1784 and soon returned to England. There, Hastings’ opponents in the House of Commons impeached him for “high crimes and misdemeanors” — in 1787, more than two years after he left office. (The specific accusations included bribery, robbery, and “fraudulently alienat[ing] the fortunes of widows.”)
Hastings’ trial in the House of Lords began in 1788, almost four years after he left office. Edmund Burke — known today as the father of Conservatism — led the prosecution. The House of Lords finally reached a verdict in 1795 — eleven years after Hastings left office. They acquitted him on all charges.
The Framers’ Shorthand for Impeachable Conduct: “Hastings”
The Hastings impeachment dragged on during the Constitutional Convention across the Atlantic, in Philadelphia. And the Framers payed close attention. As political theorist Rob Goodman puts it: “When the Constitution’s Framers needed to set the scope for unacceptable misconduct in office, they relied on a one-word shorthand: Hastings.”* For instance, in discussing the standard for impeachable conduct, the Framers considered “treason and bribery” — but George Mason argued that the Constitution needed something broader. His reason: “Hastings is not guilty of treason.” Ultimately, the Framers settled on “high crimes and misdemeanors”: the language used to impeach Hastings.
The Framers’ model impeachment, then, began after the impeached official left office. If the Framers had wanted impeachment only during an official’s term, they would have said so, in the Constitution.
A couple afterthoughts:
- Today on Fox News, Professor Alan Dershowitz claimed Congress can’t impeach a former President.** Dershowitz, you may recall, defended Trump’s first impeachment trial. His comment sounds like a job application from a man desperate for attention (always), as the President’s defender.
- Hastings’ successor creates another connection to America’s Framers. The second Governor General in India was none other than Lord Cornwallis: the general George Washington defeated at Yorktown in 1781, ending the War for Independence.
- History Tells Us the President Cannot “Self-Pardon.”
- Opinion: The Senate can constitutionally hold an impeachment trial after Trump leaves office, Laurence Tribe, Washington Post, Jan. 13, 2021
* Goodman, “Why the Founders Added ‘High Crimes and Misdemeanors’ – In defining the scope of impeachment, they had in mind the alleged crimes of Warren Hastings,” The Atlantic, Sept. 9 2019
** “Dershowitz calls Trump impeachment a ‘loaded weapon’ that would be ‘so dangerous to the Constitution’,” Fox News, Jan. 10, 2021
- Warren Hastings, c. 1767, Joshua Reynolds
- The House of Commons 1793-1794, 1793-5, Karl Anton Hickel
© 2021 by David W. Tollen
In the paragraph above entitled, “The Impeachment of Warren Hastings,” the second sentence I believe contains an error: “He left office in December of 1774.” I think it should be 1784, based on the prior sentence.
Thanks, Lou! Fixed.
Interesting case. Thank you for sharing it.
This is super interesting, but if there is a battle with Mr. Dershowitz will the Dems cite “what was really on the mind of the framers”?
John, yes, the Dems absolutely will cite was was really on the Framers minds. They do that all the time in cases about the original Constitution — the part the Framers wrote (including the Bill of Rights). The courts regularly look at the Federalist papers and the Framers’ speeches and letters about the Constitution — as well as the prior English legal history. In each case, they’re looking for guidance on what the Constitution means.
However, the Dems don’t actually have to cite anything. Who’s to stop them? The only way a case comes up is if the Senate convicts Trump after his term and sues for his presidential pension or other rights as a retired president. Then the courts would judge whether the impeachment is valid. Or they might not! The courts could easily consider this a “political question,” where courts defer to the judgment of the other branches: Congress, in this case. Such a Trump suit might be summarily dismissed on the grounds that it raises a political question, and Congress is in charge.
Looks like my old law professor agrees with me:
Washington Post op-ed: “The Senate can constitutionally hold an impeachment trial after Trump leaves office“