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.

While the Constitution authorizes the Senate,1 following an individual’s conviction in an impeachment trial, to bar an individual from holding office in the future, the text of the Constitution does not clearly indicate that a vote for disqualification from future office must be taken separately from the initial vote for conviction.2 Instead, the potential for a separate vote for disqualification has arisen through the historical practice of the Senate.3 The Senate did not choose to disqualify an impeached individual from holding future office until the Civil War era. Federal district judge West H. Humphreys took a position as a judge in the Confederate government but did not resign his seat in the United States government.4 The House impeached Humphreys in 1862. The Senate then voted unanimously to convict Judge Humphreys; and, voted separately to disqualify the Humphreys from holding office in the future.5 Senate practice since the Humphreys case has been to require a simple majority vote to disqualify an individual from holding future office, rather than the supermajority required by the Constitution’s text for removal, but it is unclear what justifies this result beyond historical practice.6

The second impeachment trial of Donald Trump saw the President’s attorneys argue that the dual punishments of removal and disqualification are linked. They asserted that removal and disqualification are not “separate or alternative punishment[s]” but instead that removal was a “condition precedent” to the “further penalty” of disqualification.7 As such, the President’s attorneys argued that as a textual matter, there can be no impeachment of former officials because the necessary punishment of removal is not available when the official has already left office. The House managers rejected this interpretation during the impeachment trial, arguing that the punishments are indeed separate, and have been historically treated as such. Linking the two punishments “defies logic” the managers argued, for “[i]f a law sets out two possible penalties and one of them becomes unavailable, that does not mean that the offender is exempt from the penalty that remains.” 8 Ultimately, the Senate’s decision to exercise jurisdiction over the second Trump impeachment appears to be an implicit rejection of the President’s position.9

The Senate’s power to convict and remove individuals from office, as well as to bar them from holding office in the future, does not overlap with criminal remedies for misconduct. Indeed, the unique nature of impeachment as a political remedy distinct from criminal proceedings ensures that “the most powerful magistrates should be amenable to the law.” 10 Rather than serving to police violations of strictly criminal activity, impeachment is a “method of national inquest into the conduct of public men” for “the abuse or violation of some public trust.” 11 Impeachable offenses are those that “relate chiefly to injuries done immediately to the society itself.” 12 Put another way, the purpose of impeachment is to protect the public interest, rather than impose a punitive measure on an individual.13 This distinction was highlighted in the impeachment trial of federal district judge Alcee Hastings. Judge Hastings had been indicted for a criminal offense, but was acquitted.14 In 1988, the House impeached Hastings for much of the same conduct for which he had been indicted. Judge Hastings argued that the impeachment proceedings constituted “double jeopardy” because of his previous acquittal in a criminal proceeding.15 The Senate rejected his motion to dismiss the articles against him.16

, U.S. Senate, https://www.senate.gov/artandhistory/history/common/briefing/Impeachment_Hastings.htm (last visited Jan. 24, 2018). The Senate voted to convict and remove Judge Hastings on eight articles, but it did not disqualify him from holding office in the future.17 Judge Hastings was subsequently elected to the House of Representatives.18

Footnotes

1

For more on the background of the Constitution’s impeachment provisions, see ArtIII.S1.10.2.2 Historical Background; ArtI.S3.C6.2 Historical Background of Impeachment Trials; ArtII.S4.4.2 Historical Background.

2

U.S. Const. art. I, § 3, cl. 7.

3

See 6 Clarence Cannon, Cannon’s Precedents of the House of Representatives of the United States § 512 (1936), https://www.govinfo.gov/content/pkg/GPO-HPREC-CANNONS-V6/pdf/GPO-HPREC-CANNONS-V6.pdf. See, e.g., 49 Cong. Rec. 1447–48 (1913) (vote to disqualify Judge Robert W. Archbald, thirty-nine yeas, thirty-five nays).

4

Emily F.V. Tassel & Paul Finkelman, Impeachable Offenses: A Documentary History from 1787 to the Present 87–88, 114–16 (1999).

5

Eleanore Bushnell, Crimes, Follies, and Misfortunes: The Federal Impeachment Trials 123 (1992); see U.S. Const. art. I, § 3, cl. 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.” ).

6

U.S. Const. art. I, § 3, cl. 7.

7

Proceedings of the United States Senate in the Impeachment Trial of Donald John Trump, Part II, 117th Cong., S. Doc. No. 117-2, at 141 (2021).

8

Proceedings of the United States Senate in the Impeachment Trial of Donald John Trump, Part III, 117th Cong., S. Doc. No. 117-2, at 200–01 (2021).

9

167 Cong. Rec. S609 (daily ed. Feb. 9, 2021).

10

James Wilson, Lectures on Law, reprinted in, 1 The Works of James Wilson 425–26 (1791).

11

See The Federalist No. 65 (Alexander Hamilton).

12

See Id.

13

8 Annals of Cong. 2251 (1798).

14

H. Res. 499 (Aug. 9, 1988); H. Comm. on the Judiciary, Impeachment of Judge Alcee L. Hastings, Report of the Comm. on the Judiciary to Accompany H. Res. 499, 100th Cong., 2d Sess., H.R. Rep. No. 100–810, at 1–5 (1988).

15

Impeachment of Judge Alcee L. Hastings, Motions of Judge Alcee L. Hastings to Dismiss Articles I–XV and XVII of the Articles of Impeachment Against Him and Supporting and Opposing Memoranda, 101st Cong., 1st Sess., S. Doc. No. 101–4, at 48–65 (1989).

16

The Impeachment Trial of Alcee L. Hastings (1989) U.S. District Judge, Florida

, U.S. Senate, https://www.senate.gov/artandhistory/history/common/briefing/Impeachment_Hastings.htm (last visited Jan. 24, 2018).

17

135 Cong. Rec. S13,783–87 (daily ed. Oct. 20, 1989).

18

See Waggoner v. Hastings, 816 F. Supp. 716 (S.D. Fla. 1993).