Can President Trump Be Subjected To Impeachment Trial After Leaving Office?

By Prince Azubuike Esq.

It is a certainty that come January 20, 2021, Donald Trump will add a title prefix “former” to him name. The impeachment proceedings against Donald Trump will surface one of the constitution’s most arcane question, to wit: can a President be removed from office if he is no longer occupying the office?

In order to appreciate the legal issues in this situation, it is important to examine the relevant provisions of the Constitution of the United States that addresses the impeachment question.

Article II, Section 4 of the Constitution of the United States provides as follows:

The President, Vice President and all Civil Officers of the United States, shall be removed from office on impeachment for, and conviction for Treason, Bribery, or other high Crimes and Misdemeanours.

Similarly, Article 1, section 3, Clause 7 of the United States constitution, in stating the punishment for impeachment provides that:

Judgment in cases of impeachment shall not extend further than removal from office, and disqualification to hold and enjoy any office of honour, trust or profit under the United States.

It is imperative to note that it is a cardinal principle of interpretation of statutes that where in their ordinary meaning the provisions are clear and unambiguous, effect must be given to them without resorting to any aid, internal or external. It is the duty of the court to interpret the words of the law makers as used. See A.G Abia State v. A.G Federation (2005) All FWLR (Pt. 275) 414 at 450.

With specific reference to constitutional provisions, it is the law that the courts must adopt a liberal approach to the interpretation of a constitutional provision such as not to defeat the obvious ends which the constitution was designed to serve. This is so even where another interpretation which will defeat the obvious ends of the constitution is equally in accord with the words and the sense of the provisions. Accordingly, the court will opt for that interpretation which will make for the smooth working of the system which the constitution has put in place. See also the cases Tukur v. Gov’t of Gongola State (1989) 4 NWLR (Pt. 117) 517 at 579; A.G Ondo State v. A.G Ekiti State (2001) 17 NWLR (Pt. 743) 706 at 767 – 768.

A cursory look at Article II, Section 4 of the Constitution of the United States reveals that the objective of impeaching an officer is to remove him from office.

The principal argument against post-presidential impeachment is that the constitution does not make private citizens subject to impeachment. That is to say, on January 20^th, 2021, Donald Trump would have become a private citizen after leaving office and the constitution, with respect to impeachment only applies to civil officers.

The drafters of the United States constitution did not follow the British model that allowed Parliament to impeach anyone, except for the King, and so impeachment was limited to certain public officials, including Presidents. Thus, subjecting a President to impeachment after he had returned to his private life would violate this basic constitutional principle, as the constitution itself applies only to governmental and not private actions.

This is so because, impeachment is typically seen as the indictment of a sitting office holder and removal from office is seen as the sentence. Put differently, the very concept of constitutional impeachment presupposes the impeachment, conviction and removal of a President who is, at the time of his impeachment, an incumbent in the office from which he is removed. This is even clear from the wordings of Article II, Section 4 and Article I, Section 3 of the US Constitution.

Flowing from the above, after January 20^th, Donald J. Trump will cease to be the President of the United States, any impeachment trial against him will at best be an academic exercise as the Senate cannot exercise jurisdiction over him being a private citizen.

Prince Azubuike Esq.