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Can You Actually Impeach a Former President? Maybe!

DETROIT, MI - OCTOBER 26: Former President Barack Obama speaks at a rally to support Michigan democratic candidates at Detroit Cass Tech High School on October 26, 2018 in Detroit, Michigan. Obama, and former Attorney General Eric Holder, who was also at the rally, are among approximately a dozen democrats who were targeted by mail bombs over the past several  days. (Photo by Bill Pugliano/Getty Images)
By Andrew Leonatti on December 12, 2019 10:42 AM

Last week, the House Judiciary Committee was holding its hearings examining whether President Trump committed impeachable offenses. It's fair to say that members of the committee were fairly divided.

During the Dec. 4 hearing, Republican Rep. Matt Gaetz of Florida, a stalwart ally of the president, said something that led to widespread mockery among scholars, the press, and Gaetz's political opponents:

"And you know what? If wiretapping a political opponent is an impeachable offense, I look forward to reading that inspector general's report, because maybe it's a different president we should be impeaching."

Gaetz was, of course, referring to former President Barack Obama. Many just shook their heads at a lawmaker they see as a bombastic, highly partisan attack dog. But, in their rush to lampoon, was he actually right?

The Constitution Is Intentionally Unclear

Let's (pretty please?) leave Gaetz's argument that President Obama is the real lawbreaker in all of this aside. Could the House still impeach Obama?

This is actually a topic of debate among lawyers, political scientists, and other nerds, and much like anything else remotely political, a consensus does not exist.

As we're finding out, the framers of the Constitution left some aspects of the impeachment vague and limited lawmakers' powers in others. For instance, a conviction by the Senate can only kick a federal officeholder out of their post and potentially prohibit that person from ever holding elected office again.

And that's where Gaetz's argument comes into play. Say that Obama did commit impeachable offenses. While term limits prevent him from running for president again, what if he were to run for a Senate seat or be nominated to the Supreme Court?

Princeton University professor Keith Whittington argues that Gaetz is "likely right," because the Constitution does not specifically limit impeachment powers to current office holders.

"If impeachments are to protect the republic from dangerous officeholders, then the ability to disqualify a former officer who has been demonstrated to have committed grave abuses of office in the past might be valuable," Whittington writes.

Tulane Law School professor Ross Garber, who has represented governors in state-level impeachment proceedings, argues that the Constitution, "by its terms," limits impeachment and removal to current office holders.

"This interpretation would also honor the primary purpose of the impeachment provision, which is to protect the country from extraordinary abuses by executive branch officials in between elections and by judges who have lifetime tenure," Garber says.

Courts Would Need to Be Involved

Pro-impeachment scholars argue that it should be possible to impeach a former president because this would prevent politicians from resigning their offices before a trial and conviction could occur.

Whittington argues that lawmakers could have impeached, convicted, and disqualified Richard Nixon from holding other office if they were worried about him rehabbing his image.

In any event, if a former officer holder were to face the music, it's a near certainty that person would take their case to the courts. It's also likely that case would make its way to the Supreme Court, where justices would probably all be thinking about calling in sick for the next six months.

Oh great! Something else to argue about!

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