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Can A President Be Retroactively Impeached? There Isn't Much Precedent

On Feb. 5, the Senate acquitted President Donald Trump of the impeachment charges against him, officially bringing Trump's impeachment trial to a close. Although the trial's outcome was unsurprising, it nonetheless dealt a blow to Democrats who were eager to remove the president from office. But can a president be retroactively impeached after he or she leaves office? There isn't much legal precedent for it.

This question arose even before Trump was officially impeached by the House of Representatives on Dec. 18, though not in the context you might expect. During a Dec. 4 House Judiciary Committee impeachment hearing, Florida Rep. Matt Gaetz — a Republican and staunch Trump ally — suggested former President Barack Obama should be impeached. According to Business Insider, Gaetz appeared to be referring to a 2013 report that revealed the National Security Agency had been monitoring the calls of 35 world leaders. Though the White House denied at the time that Obama had been aware of this, Gaetz suggested during the Dec. 4 hearing that Obama should be impeached if "wiretapping political opponents is a political offense."

Gaetz's remarks, coupled with Democrats' eagerness to get Trump out of the White House, raised the question of whether or not retroactive impeachment is actually possible, and whether an attempt would have any real consequences.

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According to The Washington Post, there isn't a total consensus on this issue from academics or constitutional scholars. That's because there simply isn't much of a precedent for even trying to impeach a former president. Keith E. Wittington, a professor of politics at Princeton University, told the Post a retroactive impeachment could be a "constitutional possibility," though not a popular one. "It would be very hard to persuade the Senate to convict on the basis of such an impeachment, and the House would be very open to criticism that it was abusing the impeachment power if it were to pursue such an impeachment," he told the Post.

The Constitution doesn't say a great deal about impeachment, which is also why it's difficult to say for certain whether retroactive impeachment is possible. Back in 2001, after former President Bill Clinton had left office, Slate consulted legal experts to determine whether or not Congress could theoretically impeach him again following his departure. According to Slate, a retroactive impeachment could be possible because the Constitution offers two consequences if a president is convicted by the Senate. The first is removal from office, which was primarily what Democrats were aiming for in Trump's case. But the second, per Article I, Section 3 of the Constitution, is barring a president from holding elected office in the future.

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Per The Washington Post and Slate, the Constitution doesn't strictly prevent the House from impeaching a president once they've left office. However, the Senate would obviously not be able to remove them from office, so the only real possible consequence would be disqualifying the former president in question from holding elected office again. But many experts told the Post that even if it were possible, a court battle would be necessary in order to rule more definitively on this issue, and no court has previously addressed this possibility. This uncertainty, along with the fact that impeachment is a costly and time-consuming process, makes it unlikely Democrats will pursue Trump's retroactive impeachment. But with the state of politics being what they are, Americans can't rule out the possibility.