The Constitution does not limit impeachment to incumbent officials. Article I endows the House of Representatives with the “sole Power of Impeachment” — i.e., the power to file articles of impeachment. It further empowers the Senate with “the sole Power to try all Impeachments.” Significantly, in prescribing the standard for conviction in the Senate, Article I, Section 3 states that “no Person shall be convicted without the Concurrence of two-thirds of the Members present” (emphasis added).
Note carefully: The Constitution does not say the impeached person must be a current officeholder. As we shall see, that makes perfect sense: The point of impeachment is to deny power to any person — not necessarily an incumbent official — whose high crimes and misdemeanors have demonstrated unfitness for a high public trust.
The constitutional standard for impeachment also elucidates that incumbency is not necessary. The standard, prescribed by Article II, Section 4, is the commission of “Treason, Bribery, or other high crimes and misdemeanors.” Obviously, one need not be in office to commit treason or bribery; but if one has at any time committed these heinous offenses, one is unsuitable for public office. The same is true, by definition, of “high crimes and misdemeanors,” a term of art the Framers borrowed from the law of England.
High crimes and misdemeanors proceed from “the abuse or violation of some public trust,” as Alexander Hamilton explained in Federalist No. 65. “They are of a nature which may with peculiar propriety be denominated political, as they relate chiefly to injuries done immediately to the society itself.”
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