# How can the constitutionality of impeaching a former president be determined? **URL:** \ **Category:** Politics & Elections\ **Created:** [January 23, 2021, 5:13am UTC](https://boards.straightdope.com/t/how-can-the-constitutionality-of-impeaching-a-former-president-be-determined/931262 "2021-01-23T05:13:34Z")\ **Posts on this page:** 20\ **Page:** 3
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [January 23, 2021, 7:49pm UTC](https://boards.straightdope.com/t/how-can-the-constitutionality-of-impeaching-a-former-president-be-determined/931262/41 "2021-01-23T19:49:52Z")
> [@JRDelirious](#): > > The Presidential pension and expense perks are conditional, per the law that concedes them, on the President _finishing their term without being removed_ , and that’s it. And while disqualification from office may be understood to mean future activities will not qualify as official expense, the personal pension is a benefit of a _ **former** _ office, and the law does not contemplate revocation. I disagree. The law on pensions and Secret Service protection has been changed several times. There have been Presidents who received them and Presidents who did not. So these things are clearly not immutable. Congress could take away Trump’s pension and Secret Service protection tomorrow if they wished, with or without impeaching him. ---
**Author:** ![Nars\_Glinley](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/nars_glinley/32/8177_2.png) [@Nars\_Glinley](https://boards.straightdope.com/u/Nars_Glinley)\ **Post date:** [January 23, 2021, 7:57pm UTC](https://boards.straightdope.com/t/how-can-the-constitutionality-of-impeaching-a-former-president-be-determined/931262/42 "2021-01-23T19:57:57Z")
> [@Exapno\_Mapcase](#): > > The precedent of Belknap seems, well, unimpeachable. Even so, 150 legal scholars, including notable conservative ones, have released a statement affirmed the constitutionality of the process. Actually, I think that the Belknap decision serves as an example of the problem. Since he was acquitted, there was no judicial review of the constitutionality of the proceedings. If he had been convicted, there might have been a definitive ruling on the matter. ---
**Author:** ![D\_Anconia](https://avatars.discourse-cdn.com/v4/letter/d/67e7ee/32.png) [@D\_Anconia](https://boards.straightdope.com/u/D_Anconia)\ **Post date:** [January 23, 2021, 8:07pm UTC](https://boards.straightdope.com/t/how-can-the-constitutionality-of-impeaching-a-former-president-be-determined/931262/43 "2021-01-23T20:07:31Z")
> [@Nars\_Glinley](#): > > Is there any way that we can get to the Supreme Court making a similar ruling concerning impeachment of a former government official? The Supreme Court does not issue advisory opinions. There would have to be an actual case, where someone suffered actual damages, that sued, lost in the lower court, lost in the appeals court, and applied for cert, which the Supreme Court is extremely unlikely to grant, and get a majority to agree. ---
**Author:** ![k9bfriender](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/k9bfriender/32/3283_2.png) [@k9bfriender](https://boards.straightdope.com/u/k9bfriender)\ **Post date:** [January 23, 2021, 8:14pm UTC](https://boards.straightdope.com/t/how-can-the-constitutionality-of-impeaching-a-former-president-be-determined/931262/44 "2021-01-23T20:14:25Z")
I could see that coming up, actually. If Trump is successfully impeached (which probably won’t happen, but is a possibility), then it would be Trump himself who would be suing to have that verdict overturned. IANAL, but I would think that the courts would tend to let the Senate conviction stand, and I would also think that Trump would then appeal it, then take it to SCOTUS assuming that it was upheld. If SCOTUS refuses to hear it, then that can pretty much be taken as them saying that the actions of the Senate were constitutional. If they did hear it, then I would think that they would still come to that same decision. ---
**Author:** ![Bijou\_Drains](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bijou_drains/32/2814_2.png) [@Bijou\_Drains](https://boards.straightdope.com/u/Bijou_Drains)\ **Post date:** [January 23, 2021, 8:18pm UTC](https://boards.straightdope.com/t/how-can-the-constitutionality-of-impeaching-a-former-president-be-determined/931262/45 "2021-01-23T20:18:00Z")
If he’s convicted he’s sure to launch all kinds of legal cases to get it overturned. ---
**Author:** ![k9bfriender](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/k9bfriender/32/3283_2.png) [@k9bfriender](https://boards.straightdope.com/u/k9bfriender)\ **Post date:** [January 23, 2021, 8:20pm UTC](https://boards.straightdope.com/t/how-can-the-constitutionality-of-impeaching-a-former-president-be-determined/931262/46 "2021-01-23T20:20:32Z")
Of course, he may be involved in some other legal cases against him as well. Be fun it it was timed that SCOTUS told him to go to hell on the same day that he is sentenced for his crimes. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [January 23, 2021, 8:21pm UTC](https://boards.straightdope.com/t/how-can-the-constitutionality-of-impeaching-a-former-president-be-determined/931262/47 "2021-01-23T20:21:49Z")
> [@Bijou\_Drains](#): > > If he’s convicted he’s sure to launch all kinds of legal cases to get it overturned. There is no appeal process for an impeachment and then conviction in the senate. I would be shocked if the Supreme Court touched that. They often invoke the “political question” for cases they think are not in their purview and this is as political a question as it gets. Remember, impeachment/senate trial is not a court process despite looking like it. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [January 23, 2021, 8:31pm UTC](https://boards.straightdope.com/t/how-can-the-constitutionality-of-impeaching-a-former-president-be-determined/931262/48 "2021-01-23T20:31:49Z")
I agree with Whack-a-Mole. If Trump is impeached by the senate, he can’t appeal it to the Supreme Court. The Senate is the last step in the impeachment process. Once they make their decision, it’s final. ---
**Author:** ![JRDelirious](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jrdelirious/32/9531_2.png) [@JRDelirious](https://boards.straightdope.com/u/JRDelirious)\ **Post date:** [January 23, 2021, 8:32pm UTC](https://boards.straightdope.com/t/how-can-the-constitutionality-of-impeaching-a-former-president-be-determined/931262/49 "2021-01-23T20:32:09Z")
> [@Whack-a-Mole](#): > > So Trump was impeached (a second time) while he was still president Being impeached by itself imposes no penalty. > [@k9bfriender](#): > > OTOH, I don’t see any reason why this evidence and testimony cannot also be used against him when criminal charges are filed. As part of those criminal charges, things like his continuing benefits _may_ be able to be removed, along with any other penalties that may be assessed against him. Right. The impeachment clauses explicitly indicate that impeachment does not trigger double jeopardy and the person can be subjected to any penal or civil consequences for their deeds. There’s law that provides that Civil Servants, Members of Congress, and military retirees ARE subject to [losing their federal pensions upon conviction _ **in court** _ of a specified set of crimes](https://www.law.cornell.edu/uscode/text/5/8312). I don’t see why that could not be understood to also apply to a presidential pension. However, again, it is not self-evident that an impeachment conviction must automatically trigger the same effect. > [@Little\_Nemo](#): > > The law on pensions and Secret Service protection has been changed several times. There have been Presidents who received them and Presidents who did not. So these things are clearly not immutable. Oh but you are right. However the questioned issue AIUI was if his getting convicted of impeachment after completing his term were to somehow make it be that he loses his pension and protection, _by the fact of the impeachment conviction_. As the law stands _today_ it does not contemplate that. As you state, it would have to be dealt with as a separate issue. Though it’s not a slam dunk that you could then rewrite those laws with retroactive effect to specifically take benefits away from the one man Donald J. Trump. **That** would result in the likelier case to go before SCOTUS to test if it indeed works that way. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [January 23, 2021, 8:34pm UTC](https://boards.straightdope.com/t/how-can-the-constitutionality-of-impeaching-a-former-president-be-determined/931262/50 "2021-01-23T20:34:23Z")
Although that raises a separate issue. Is an impeachment irreversible? If an official is impeached by the Senate, can a future Senate overturn that impeachment? Has there ever been an impeachment that was overturned? If not in the Senate, have there ever been impeachments overturned in any of the states? ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [January 23, 2021, 8:45pm UTC](https://boards.straightdope.com/t/how-can-the-constitutionality-of-impeaching-a-former-president-be-determined/931262/51 "2021-01-23T20:45:16Z")
> [@JRDelirious](#): > > Being impeached by itself imposes no penalty. I never suggested it did. What I am suggesting is the process was afoot while he was still president which means a slow senate waiting till he is out of office doesn’t mean he is immune to the process because he is no longer president. ---
**Author:** ![k9bfriender](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/k9bfriender/32/3283_2.png) [@k9bfriender](https://boards.straightdope.com/u/k9bfriender)\ **Post date:** [January 23, 2021, 8:56pm UTC](https://boards.straightdope.com/t/how-can-the-constitutionality-of-impeaching-a-former-president-be-determined/931262/52 "2021-01-23T20:56:53Z")
> [@Whack-a-Mole](#): > > There is no appeal process for an impeachment and then conviction in the senate. I think that he would try. I have no idea what avenues would be available, if any. His failure, for whatever reason would answer the question as to whether or not it was constitutional. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [January 23, 2021, 8:58pm UTC](https://boards.straightdope.com/t/how-can-the-constitutionality-of-impeaching-a-former-president-be-determined/931262/53 "2021-01-23T20:58:47Z")
> [@JRDelirious](#): > > However the questioned issue AIUI was if his getting convicted of impeachment after completing his term were to somehow make it be that he loses his pension and protection, _by the fact of the impeachment conviction_ . As the law stands _today_ it does not contemplate that. As you state, it would have to be dealt with as a separate issue. Okay, now I understand what you’re saying. And I agree. > [@JRDelirious](#): > > Though it’s not a slam dunk that you could then rewrite those laws with retroactive effect to specifically take benefits away from the one man Donald J. Trump. **That** would result in the likelier case to go before SCOTUS to test if it indeed works that way. I’m not sure about that. I read the Former Presidents Act. It doesn’t describe the money former presidents receive as a pension and they don’t contribute into a pension fund while they are in office. So I think from a legal standpoint, a former president is treated as holding an ongoing position and the money they receive is treated as if it’s a salary (it’s taxable, it’s set at the level of what a cabinet official’s salary would be, and the former president doesn’t receive it if he’s holding another federal job). I would speculate that therefore Congress could treat a former president as an at will employee and eliminate his position if they wished to do so. I agree it wouldn’t be a slam dunk but I think it would be possible. ---
**Author:** ![JRDelirious](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jrdelirious/32/9531_2.png) [@JRDelirious](https://boards.straightdope.com/u/JRDelirious)\ **Post date:** [January 23, 2021, 9:00pm UTC](https://boards.straightdope.com/t/how-can-the-constitutionality-of-impeaching-a-former-president-be-determined/931262/54 "2021-01-23T21:00:33Z")
Not as far as I can tell in the federal sphere. As with so many other things the Constitution simply says jack squat on this matter, except for the provision of the two separate penalty decisions on removal and disqualification. So a Senate can leave it to the people to “rehabilitate” the impeached official with their votes. It _ **would** _ be an interesting question to explore, if it being an exclusive power of the Congress, it could be also in their purview to legislate at a future time to lift the disqualification or even void the conviction, and exactly how, but aparently it is a pure hypothetical as of now. > [@k9bfriender](#): > > I think that he would try. I have no idea what avenues would be available, if any. It would be a tough argument, (Walter) Nixon v. US established that procedures for trying an impeached individual cannot be subject to review by the judiciary. > [@Little\_Nemo](#): > > I would speculate that therefore Congress could treat a former president as an at will employee and eliminate his position if they wished to do so. I agree it wouldn’t be a slam dunk but I think it would be possible. And entirely undesirable. So, by mere majority enactment, ANY past president can be deprived of pension and protection, just because the current Congress wants it. I’d surely hope SCOTUS would smash that one flat. ---
**Author:** ![cochrane](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/cochrane/32/10441_2.png) [@cochrane](https://boards.straightdope.com/u/cochrane)\ **Post date:** [January 23, 2021, 9:07pm UTC](https://boards.straightdope.com/t/how-can-the-constitutionality-of-impeaching-a-former-president-be-determined/931262/55 "2021-01-23T21:07:40Z")
> [@Little\_Nemo](#): > > If Trump is impeached by the senate, he can’t appeal it to the Supreme Court. I hate to nitpick, but the Senate does not impeach. Trump was impeached by the House of Representatives. They will be sending the article of impeachment to the Senate on Monday for trial. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [January 23, 2021, 9:10pm UTC](https://boards.straightdope.com/t/how-can-the-constitutionality-of-impeaching-a-former-president-be-determined/931262/56 "2021-01-23T21:10:23Z")
> [@cochrane](#): > > I hate to nitpick, but the Senate does not impeach. Trump was impeached by the House of Representatives. They will be sending the article of impeachment to the Senate on Monday for trial. I know. But it gets even more confusing if we talk about the Senate convicting Trump, which is the correct term. ---
**Author:** ![DMC](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/dmc/32/18049_2.png) [@DMC](https://boards.straightdope.com/u/DMC)\ **Post date:** [January 23, 2021, 9:40pm UTC](https://boards.straightdope.com/t/how-can-the-constitutionality-of-impeaching-a-former-president-be-determined/931262/57 "2021-01-23T21:40:04Z")
> [@Exapno\_Mapcase](#): > > Even so, 150 legal scholars, including notable conservative ones, have released a statement affirmed the constitutionality of the process. I think this would be key if someone stated that they won’t impeach because they think it’s unconstitutional. I can imagine the conversation: Sen. Hawley: I would normally impeach the man for these heinous crimes (some that I helped incite), but it’s unconstitutional to do so! Sen. Bennet: While we’re aware of your strangely limited understanding of the constitution and its amendments thanks to your recent book fiasco (there’s always Regnery), are you wanting to go on record and claim that the Federalist Society doesn’t understand the constitution? If so, is your limited understanding of the document due to the fact that you were president of the Harvard chapter of the group? Sen. Hawley: Illegal votes were cast in Arizona! Sen. Bennet: Sure, sure, Mr. Ed. So, you don’t understand the constitution. The Federalist Society, of which you were a member, doesn’t understand the constitution. Now you want to use constitutionality as your crutch for being a chicken-shit that even your own mentor wants to abort? Sen. Hawley: I have a bro-crush on Jayson Boebert! Sen. Bennet: You’re definitely not his type. You haven’t been 16 for the past 25 years. ---
**Author:** ![Monty](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/monty/32/47_2.png) [@Monty](https://boards.straightdope.com/u/Monty)\ **Post date:** [January 24, 2021, 2:34am UTC](https://boards.straightdope.com/t/how-can-the-constitutionality-of-impeaching-a-former-president-be-determined/931262/58 "2021-01-24T02:34:19Z")
I think “all kinds” is a bit of an overgenerous assessment. The only court that would have jurisdiction–and I think they’d probably tell him to pack sand–would be the Supreme Court, wouldn’t it? ---
**Author:** ![E-DUB](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/e-dub/32/403_2.png) [@E-DUB](https://boards.straightdope.com/u/E-DUB)\ **Post date:** [January 24, 2021, 2:38am UTC](https://boards.straightdope.com/t/how-can-the-constitutionality-of-impeaching-a-former-president-be-determined/931262/59 "2021-01-24T02:38:16Z")
Would a bar to holding future office only apply to Federal offices or would state, and even local, offices be included? ---
**Author:** ![gdave](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/gdave/32/3683_2.png) [@gdave](https://boards.straightdope.com/u/gdave)\ **Post date:** [January 24, 2021, 2:43am UTC](https://boards.straightdope.com/t/how-can-the-constitutionality-of-impeaching-a-former-president-be-determined/931262/60 "2021-01-24T02:43:29Z")
Federal only. > [@U.S Constitution Article I Section 3 Clause 7](#): > > Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law. “The United States” in this case is specifically the federal government. [Previous page](https://boards.straightdope.com/t/how-can-the-constitutionality-of-impeaching-a-former-president-be-determined/931262.md?page=2) [Next page](https://boards.straightdope.com/t/how-can-the-constitutionality-of-impeaching-a-former-president-be-determined/931262.md?page=4)