The current debate right now is whether or not the US Senate can hold an impeachment trial and potentially convict an ex-president who is now technically considered a private citizen. To be clear, the impeachment occurred during the presidency, but the trial will be held after his presidency. The speculated purpose is to prevent the ex-president from running for office ever again. I'll take it a step beyond: Could the house/senate impeach and convict any private citizen? I wasn't sure if there's specific language in the US constitution that describes that impeachment is reserved specifically for a sitting president, or if it's another case of "this is how it's historically been done but it's debatable."
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2If your question is "Can a person who has never held office be barred from ever holding office?" That might be a different answer. I believe someone with a serious criminal record, for example, could be barred from holding some offices, but the process would not be impeachment. A criminal record can indeed bar you from receiving security clearance, something that would be expected of a person elected to most high offices.– Darrel HoffmanCommented Jan 25, 2021 at 15:45
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4I'm going to challenge your assumption that Trump is technically a private citizen. If he receives a federal pension, he holds an "office of profit", and if the State Department has a protocol for him as a dignitary, an "office of honor". These can be stripped by impeachment: "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..."– user662852Commented Jan 25, 2021 at 15:55
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@DarrelHoffman In the US, elected officials do not have background checks and do not need a security clearance in order to see confidential information. In particular, the President automatically has access to all intelligence information and the ability to declassify it, as well. The President then shares information with Congress. (Technically, the President is the start of the chain for security clearances, so even if the President needed a clearance to see something then all they would have to do is grant themselves clearance to see it.) Staff/non-elected officials do need clearances.– user3067860Commented Jan 25, 2021 at 21:09
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@Sittin Hawk Thanks and that's as clear as mud, wouldn't you say? I for one was hoping you'd outline which parts of the literal text helped or hindered you, which interpretations were too fluid and what historical precedents you found. If it's just a general discussion, don't you think this looks like a Question of Law, not Politics?– Robbie GoodwinCommented Jan 26, 2021 at 0:00
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1@Hobbamok To draw a parallel, a person can be sued by another person and can lose such a civil suit without being criminally guilty of anything - the court is just there to settle the disagreement and to order whatever compensation but nobody leaves with a criminal record. Impeachment is similar in that it's a tool parallel to the criminal justice system for managing disagreements and sanctions for government officials separate from criminal proceedings. The military analogue would be a court martial.– J...Commented Jan 26, 2021 at 19:39
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7 Answers
Can the US House/Congress impeach/convict a private citizen that hasn't held office?
No. Only those individuals identified as shown below. A person who has never held such office cannot be impeached,
Article II, Section 4: Offices Eligible for Impeachment
The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.
answered Jan 23, 2021 at 17:00
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2For the OPs benefit, the link defines "civil Officers" through historical precedent as high level members of the Executive.– origimboCommented Jan 23, 2021 at 17:04
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2@fredsbend Governors are civil officers, but not of the United States. Senators can be expelled by the Senate, no need to impeach.– phoogCommented Jan 23, 2021 at 22:27
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17I would add that the constitution's provision that certain people may be removed from office by impeachment does not include a statement that this is the only permissible use of impeachment. It's not clear that the answer is "no."– phoogCommented Jan 24, 2021 at 0:52
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4@frеdsbend Senator William Blount was impeached in 1797 but the Senate dismissed the charges. Blount was expelled prior to this, so it's unclear whether the Senate meant to say senators could not be subject to impeachment proceedings. Commented Jan 24, 2021 at 1:49
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4@phoog Is the section title not presciptive? "Offices Eligible for Impeachment" implies that these are the only people that can be impeached.– BarmarCommented Jan 24, 2021 at 4:48
Just to add to the answers given by others, any attempt to punish a private citizen by the legislature would almost certainly be an unconstitutional bill of attainder prohibited in federal law under Article I, Section 9, and in state law under Article I, Section 10.
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3Maybe add that blocking a person from holding office in the future isn't considered punishment in this context? Commented Jan 25, 2021 at 2:45
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@PatrickM why isn't it a punishment? Regardless, this answer is incorrect because impeachment and trial are not a bill, much less a bill of attainder.– phoogCommented Jan 29, 2021 at 19:32
On the technical merits, impeachment only applies to "The President, Vice President and all civil Officers of the United States" (article II, section 4 of the US constitution), so private citizens who have never held public office are not subject to impeachment or trial in Congress. The general presumption is that any private citizen who has been accused (much less convicted) of high crimes or misdemeanors in a civilian or military court is unlikely to attain public positions of trust, so no special procedure is needed to handle such cases.
It helps to remember that impeachment and conviction are specifically meant to deal with the case of improper acts committed using public authority. As article I, section 3 says:
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.
Implying that Congress' role is to remove the person from any position of power, and then step back and allow the civil court system to try the offender as a private citizen.
Of course the Constitution is subject to interpretation, so Congress could redefine its role if needed, either through a revision of practice or a legislative expansion of its powers. But a straightforward reading of the Constitution limits Congress' power to stripping individuals of the rank and privileges of office.
answered Jan 23, 2021 at 17:07
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2If impeachment were permitted for non-office holders, it could still be used to proactively prevent them from holding office in the future. E.g. one could imagine wanting to impeach Trump, Jr. to prevent him from following in his father's footsteps.– BarmarCommented Jan 24, 2021 at 4:45
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3@Barmar: Possibly, but I don't think that's a precedent we want to set. Imagine a party trying to impeach likely candidates from the opposing party on whatever pretext, just to take them out of the running. Commented Jan 24, 2021 at 7:03
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"so Congress could redefine its role if needed, either through a revision of practice or a legislative expansion of its powers" I hope you are not implying that congress can unilaterally expand its own powers.– MattCommented Jan 24, 2021 at 16:01
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10@Matt: Ah, me... I keep forgetting that people don't really understand politics. Of course Congress can unilaterally expand its own powers. Congress writes laws, an Congress can write any laws that it likes. Congress is only limited by checks and balances — Presidential veto, Judicial review, voter irritation — and by the consciences of the individual members. That's why conscientious voting is so important; we need to elect people with strong moral character, or the whole system goes to shiz. As we have so recently seen... Commented Jan 24, 2021 at 16:41
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2@JustMe: Presumptions are often wrong, yet are still held. Weird that, yah? Commented Jan 24, 2021 at 20:44
No, they can't do this, as others have stated. However, they are not impeaching a former president in this case, as he was already impeached prior to him leaving office. What will be happening is the trial portion of the impeachment to decide if there are any punishments as a result of it. In this case, the removal from office isn't an issue since he already has left office. There is still the issue of if he can hold office again, and if he is convicted it is possible for the senate to vote to remove that ability.
In summary, a former president is not being impeached but the trial of an impeached president is going to be moving forward.
Article II, Section 4: Offices Eligible for Impeachment
The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.
(Impeachment info borrowed from Rick Smith)
As others have noted, I'm pretty sure that the no "bills of attainder" provisions would prevent Congress from preventing someone from running from office.
However, if there was some way to get a finding that someone was in violation of Section 3 of the 14th amendment, then that person would be prevented from holding office. I don't know who could make that finding.
Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability.
Personally, I'm of the belief that the last president might be in violation of that rule.
Note that this applies only to people wo have taken an oath as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States. So, my oath as a naturalized citizen wouldn't count. And, if you are like most people and have never taken an oath like that, then you don't have to worry.
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Interesting commentary on this (but, it's behind the Washington Post's paywall - I'm not sure if you get a free swig from well): washingtonpost.com/outlook/2021/01/12/…– Flydog57Commented Jan 26, 2021 at 1:22
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You can summarize the content of the Washington Post article for those who don't have access. But there's no reason to think that the prohibition on bills of attainder applies to impeachment proceedings. They are entirely distinct from one another. A bill of attainder requires the president's assent or a veto override, in contrast to impeachment. In fact, the main reason for the revival of impeachment in England and the UK in the 17th and 18th centuries was to avoid having to obtain the assent of the monarch, as was necessary for bills of attainder.– phoogCommented Jan 29, 2021 at 19:44
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My bill of attainder comment had nothing to do with impeachment. It addresses the original question "Can the US House/Congress impeach/convict a private citizen that hasn't held office?". Congress can't "convict" anyone other than an officer of the United States via Impeachment/Conviction.– Flydog57Commented Jan 29, 2021 at 20:23
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What I found interesting was a discussion of the bills of attainder questions, and then a discussion of the Ku Klux Klan Act (1871). From the article: "Be that as it may, a law barring Trump from future officeholding that is passed by a simple majority of the House and Senate would raise serious constitutional questions." But then later: "The new law could authorize federal prosecutors to bring a civil action against anyone who pursues public office in violation of Section 3. Thus if Trump seeks the White House in 2024, the Justice Department could go to court to disqualify him."– Flydog57Commented Jan 29, 2021 at 20:41
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The Constitution does not say that impeachment and conviction may only be used against officers of the United States. Under a literal reading of the constitution, anyone may be barred from office using the procedure, and officers may also be removed from office. That is, in Art. I it first limits the consequences of conviction without discussing who may be impeached. Then in Art. II it says that officers may be removed from office if convicted on impeachment for certain offenses. That doesn't prevent other people from being barred from office by impeachment.– phoogCommented Jan 29, 2021 at 20:43
Courts serve all types of purposes and each type of conflict is resolved by a different system of justice depending on who the parties are and with whom they have grievance. Very roughly you can consider :
- Citizen vs Government → Criminal Justice System
- Violations of Criminal Law
- Government vs Government → Impeachment
- Violations of Constitutional Law
- Military vs Military → Court Martial
- Violations of the Uniform Code of Military Justice
- Citizen vs Citizen → Civil Justice System
- Violations of Common Law
This isn't to say that constitutional law is limited to matters of impeachment, but where constitutional law acts against an individual agent of government the litigation process happens under the umbrella of impeachment.
A private citizen is only subject to criminal and common law. Just like a private citizen cannot be brought before a military court martial, so neither can they be impeached, for both of those are violations of a set of rules that private citizens have not elected to subject themselves to. Those rules only apply when an individual takes up formal service to the bodies where those rules apply.
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There are plenty of civil cases where one side is a government and the other is a citizen. Even both sides may be governments. Common law has little to do with it in the US, especially in federal law. And the UCMJ is about the government punishing people for criminal behavior. This categorization is tidy, but it doesn't reflect reality.– phoogCommented Jan 29, 2021 at 19:46
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@phoog In those cases the government in question is not acting as itself, but as a "person", I believe. A government in civil court is just another plaintiff or defendant - they are not exercising their special function as a government during the proceeding, they're simply taking part in a process just like anyone else would. I'm not sure what your point is about the UCMJ. Soldiers don't go to civilian court. Civilians don't go to military court. What's your point?– J...Commented Jan 30, 2021 at 12:57
In fact, the constitution does not explicitly prevent an impeachment of someone who has never held office for the purpose of preventing that person from holding office. The constitution says two things. First, that certain officers may be removed from office through impeachment, and second, that impeachment can only serve to remove someone from office and/or disqualify that person from holding office. This leaves open the possibility of impeaching someone who has never held office.
Congress might reasonably pursue this if someone was thought to have violated a law that would disqualify the person from office, but for some reason the judicial trial resulted in acquittal, perhaps because of a poorly managed prosecution or some legal technicality.
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1I have to question the use of reasonably. Civil officers, as the term is understood, require confirmation by the Senate. The Senate can prevent an individual from holding an office by rejecting their confirmation. An impeachment and trial is not required. Extending the acquittal argument from the answer suggests that Representatives and Senators, whether expelled or not, or any other individual, could be impeached and tried for the sole purpose of preventing them from running for president or vice president. (For the last, consider Democrats v. Cruz and Hawley.) Commented Jan 24, 2021 at 4:34
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1@Stilez the house and senate, through impeachment and conviction, can disqualify someone from holding "any Office of honor, Trust or Profit under the United States." That includes all directly elected and appointed offices in all three branches of government. Once again, that removal on impeachment and conviction only applies to certain officers does not imply that the disqualification only applies to those offices.– phoogCommented Jan 24, 2021 at 23:31
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1@phoog - When Congress uses Article II impeachment, it is exercising its legislative oversight authority of the executive and judicial departments. Hypothetically, should Congress resort to its Article I authorities, only, to impeachment a non-government person or civil service employee; it could be seen as exercising judicial authority in violation of Article III. In the case of an acquitted civil service employee, the loss of employment would amount to punishment for being found "not guilty." I don't see how it could work, as described in the answer. Commented Jan 25, 2021 at 2:00
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1@RickSmith of course it's punishment. Impeachment is about punishing people. There are only two punishments allowed. But congress's exercise of its authority to impeach anyone does not constitute an exercise of judicial authority because impeachment and conviction of impeachment are explicitly reserved to the house and senate respectively.– phoogCommented Jan 25, 2021 at 3:40
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1I believe this answer is probably the most strictly correct one.– ouflakCommented Jan 25, 2021 at 12:07