Read: Impeachment is the song of the summer
Here’s the most relevant part for our time. Clymer’s impeachment hearings launched on March 1, 1876. The next morning, Grant asked for and got Belknap’s resignation. That very afternoon—after learning of the resignation—the committee impeached him anyway and referred the matter for a Senate trial.
This made perfect sense, partly because of history and partly through the interplay of two constitutional provisions. As Bowman documents, the English Parliament created impeachment in the 13th century. “It was invented as a means of asserting parliamentary power against the Crown,” Bowman told me in an interview. Verbal criticism of the king himself involved some risk of disembowelment or similar unpleasantness, and was probably useless anyway. Impeachment of a minister “struck back at what Parliament perceived as executive tyranny or the invasion of Parliament’s privilege,” he said.
The Framers knew this history—and they knew that English parliamentary tradition allowed impeachment of officials after they left office. (In the most famous case, Warren Hastings, the governor-general of India, was impeached in 1785 and acquitted nine years after he left office.)
Now for the constitutional provisions. Article II, Section 4, states that the president, vice president, and “all civil officers of the United States” can be impeached for “high crimes and misdemeanors.” English impeachment could lead to penalties up to and including beheading; the Framers thought that was a bit much. Thus, Article I, Section 3, limits the punishment for impeachment and conviction to “removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States.” Belknap was no longer secretary of war, but congressional Democrats argued that he remained at least theoretically eligible to serve in elected or appointed office—unless he was impeached by the House and removed by the Senate.
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At his Senate trial, Belknap didn’t even deny his crime; instead, he argued that his resignation barred a trial. The senators voted to proceed, and then voted 35–25 to convict him—a majority, but less than the required two-thirds. Belknap was then indicted by the Department of Justice, but Grant intervened to halt the prosecution. Belknap went back to Keokuk, Iowa, and died in 1890.
Why would Congress have bothered with this mummery? Grant’s foes were not terribly worried about a Belknap comeback—but, Bowman told me, the Democrats would take any chance “to move against Grant’s corruption.” The proceedings amassed a 1,200-page record, distributed at government expense, laying out the corrupt payments in detail.
Now back to Acosta. I asked Michael Gerhardt, a University of North Carolina law professor and the author of The Federal Impeachment Process: A Constitutional and Historical Analysis and this year’s Impeachment: What Everyone Needs to Know, whether Acosta’s conduct in the Epstein case might constitute an impeachable offense. Gerhardt replied that conduct before one takes office has, in the past, served as grounds for impeachment. He cited the 2010 case of Thomas Porteous, a federal district judge who was charged with—among other offenses—taking kickbacks as a state-court judge before his federal appointment. Not only was Porteous convicted and removed—he was also disqualified from future office (making him one of only three people ever given that additional penalty). Bowman agreed; since the Porteous case, he said, “the precedent is now clear” that conduct before taking office can be grounds for impeachment.