09 February 2021

IN RE | Impeachment Subsequent

Can a former United States President be convicted for high crimes and misdemeanors, in an impeachment trial, after the presidential term has naturally expired and the president has left office?

Are there assertions of actions that arise to a claim of high crimes and misdemeanors?

Whether or not a person will be successful is not the same as whether or not a person has a claim. ‘I was hit’ is an assertion of actions that lead to the claim of battery. This is enough for a claim. Whether or not a battery happened is to be determined by the finder of fact; the Jury or the Judge and in the situation at bar, the Senate. 

The former president's actions taken on January 6th, 2021 that preceded the event against the capital are enough to assert a claim of incitement of insurrection. Whether or not the finder of will make the determination is an issue for trial. 

Did the actions in question happen while the president was in office?

If one commits employment related crime, such as embezzlement, and the person quits. When the embezzlement is discovered, that person may still be held liable for the tortious actions taken during the time the person was employed. Barring any codified statute of limitations or applicable theory of latches. 

In the case of the former president, the same principle can be asserted. The former president is not being tried for his actions as a private citizen. The former president is being tried for actions taken wholly during his time as president. 

Is there a remedy available?

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.” U.S. Const. art. I, § 3, cl. 7.

Impeachment has two remedies codified in the constitution. One remedy is removal from office. Here, that remedy has already been satisfied because during the psuedu-judicial process the president's time in office naturally expired. The second remedy is a bar from holding future office, this remedy is still available. 

Situations in which impeachment would not be proper.

  • Actions taken 12:01pm on January 20th, 2021

  • If the only remedy was removal, and the time in office has naturally expired.

  • Actions taken prior to presidency, unrelated to the office of presidency.


Justice is not served if a future president can embark on actions consistent with high crimes and misdemeanors, and evade all accountability by simply resigning or waiting until their last day in office. In a nation that many believe to have separate and unequal systems of justice, it should be optically fair that the former president should be subject, at least, to a trial for his potential actions. 

In purely opinion, if the framers meant for the exit of office to be a method of evasion from consequences, they would not have added a bar from holding future public office as a remedy.