With the second impeachment trial of former President Donald Trump beginning today, his defenders in right-wing media have argued that a former official cannot be impeached after leaving office — not even for the purpose of applying the Constitution’s power to disqualify them from holding any future office.
Just to be clear on this point: The House of Representatives impeached Trump for the second time while he was still president, on January 13. But it was Sen. Mitch McConnell (R-KY) who refused to bring the Senate back to conduct a trial, during the remaining week that he was still the majority leader, which then resulted in Trump’s trial being pushed into President Joe Biden’s term.
But as it turns out, some of the same people making this argument now had previously argued in favor of such retrospective impeachment proceedings — that is, if they would be pointed against Democrats and other officials the speaker did not like.
The current case of Trump’s incitement of the January 6 insurrection, though, is where they now draw the line to oppose it.
As one example, Fox News legal analyst Gregg Jarrett argued in 2018 that former FBI Director James Comey, who Trump had fired the previous year, could still be subject to impeachment: “What’s the purpose of that? It would prevent him from ever holding any government position.”
But now when it comes to Trump, Jarrett says: “Once he leaves office, there is no removal and therefore no disqualification.”
And there are other such individuals, too, including the leaders of the right-wing group Judicial Watch, who had once argued it would be possible to pursue former President Barack Obama — but it’s beyond the pale to impeach Trump now:
Perhaps the single most blatant perpetrator of such hypocrisy is Fox News legal contributor Jonathan Turley. Back in early 2001, when controversies swirled around the final pardons issued by President Bill Clinton, Turley argued that a former president could be subjected to impeachment — and certainly, that illicit acts a president committed as they were leaving office should not be beyond accountability.
From the February 12, 2001, edition of CBS Evening News:
JIM AXELROD (CBS NEWS CORRESPONDENT): Sen. Arlen Specter backed off that stance late today, but law professor Jonathan Turley says the Constitution does not rule impeachment out.
JONATHAN TURLEY: It is by no means out of the question that an ex-president could be impeached.
AXELROD: Saying that if Clinton traded a pardon for donations from Rich, federal funds for Clinton's office space, library, even his pension could be withheld.
TURLEY: If the president waited till his final two hours to do an act which may not just be impeachable but criminal, then many in Congress are likely to ask for those things to be severed.
By contrast, Turley is now fervently opposed to the idea of a post-presidential impeachment: “On its face, the planned impeachment trial is at odds with the language of the Constitution, which expressly states that removal of a president is the primary purpose of such a trial.”
In answer to his critics, who’ve highlighted his other writings that clearly endorsed retrospective impeachments as a tool of public accountability, he says: “The fact that my views have evolved in three decades is hardly surprising.”
Indeed, it shouldn’t be surprising. After all, Turley has made a career out of advocating for the impeachment of Democrats — while opposing those same efforts, repeatedly now, when it has come to Donald Trump.
Update (2/9/21, 6:00 p.m. EST): Former Sinclair Broadcast Group commentator Boris Epshteyn recently told MSNBC's Ari Melber that former presidents cannot be put on impeachment trial because “the whole structure of impeachment is structured around an official who is currently in office.” However, in a 2018 “Breakfast with Boris” email, Epshteyn suggested that the House should impeach then-former Vice President Joe Biden instead of then-President Donald Trump.
