The Impeachment Reform Amendment: A Proposed 28th Amendment to the Constitution

Text of Proposed Amendment

Section 1. The President, Vice President, federal judges, and all other civil officers of the United States (hereafter, “Civil Officers”) may be impeached for the following offenses: abuse of power; behavior incompatible with the function and purpose of the office, including but not limited to dereliction of duty and violations of the Oath of Office; and misusing the office for an improper purpose or personal gain. Impeachment for Civil Officers, both current and former, and criminal indictment of private citizens are specifically understood to be independent of one another: behavior may be impeachable and indictable, impeachable but not indictable, indictable but not impeachable, or neither impeachable nor indictable.

Section 2. The Senate shall have the sole Power to try all Impeachments, including impeachments of both current and former Civil Officers.

Section 3. When a current or former President of the United States is tried, the Chief Justice shall preside.

Section 4. Because impeachment by the House of Representatives and conviction by the U.S. Senate does not risk forfeiture of life, liberty, or property, the standard of proof required for conviction by the Senate shall be the “preponderance of the evidence” standard, not the “beyond a reasonable doubt” standard required in criminal trials.

Section 5. No Civil Officer, current or former, shall be convicted without the concurrence of two-thirds of Members present.

Section 6. For current Civil Officers, 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.

Section 7. For former Civil Officers, judgment in Cases of Impeachment shall not extend further than disqualification to hold and enjoy any Office of honor.

Section 8. The President does not have the power to grant self-reprieves or self-pardons.

Section 9. The Congress shall have the power to enforce this article by appropriate legislation.

Rationale for Proposed Amendment

Section 1: In the last three Presidential impeachments (Clinton, Trump 1, Trump 2), various members of the Congress, from both political parties, have raised various questions about what is and is not an “impeachable offense.” There has also been some confusion about the relationship between impeachable offenses and criminal offenses. Section 1 of this proposed Amendment add much needed clarity by defining an “impeachable offense” in present day English, not the 17th and 18th century term of legal art found in the Constitution.

Section 2: The storming of the U.S. Capitol on January 6, 2021 was a dark day in U.S. history. In the aftermath of that event, an alarming number of sitting U.S. Senators stated that they believed the U.S. Senate lacks the jurisdiction to convene as a Court of Impeachment for former Officers of the United States, including former President Trump. While the overwhelming majority of constitutional lawyers reject that argument, as the saying goes, “perception is reality.”

If the overwhelming majority of U.S. Senators in one political party believe that the U.S. Senate lacks the jurisdiction to conduct an impeachment trial for a former President, that means the U.S. Constitution contains a major loophole. In practice, it means that lame duck Presidents can “run out the clock” and get away with impeachable offenses during their lame duck period. That would truly be a regrettable state of affairs. It would mean that the President is effectively above the law during the lame duck period. This cannot be allowed.

The perception of so many U.S. Senators means that the U.S. Constitution contains a major loophole: lame duck Presidents can “run out the clock” and get away with impeachable offenses during their lame duck period.

Section 2 of this proposed Amendment would close this perceived loophole.

Section 3: Along similar lines, some sitting U.S. Senators pointed to the fact that the Chief Justice of the U.S. Supreme Court opted not to preside over the Trump’s second Court of Impeachment. According to these Senators, that fact shows that the Chief Justice agreed with the argument that the U.S. Senate lacks the jurisdiction to try a former President. Because the Chief Justice never directly commented on the constitutionality of the second impeachment trial, that argument is, at best, an argument from silence. I believe that argument is weak, but it really doesn’t matter. To avoid this question from ever becoming a question again and to depoliticize Impeachment trials, Section 3 of this proposed Amendment requires the Chief Justice to preside over Impeachment trials of former Presidents.

Section 4: Some sitting U.S. Senators have suggested that the standard of proof required in Impeachment Trials is the same as that required in criminal trails: “beyond a reasonable doubt.” Section 4 of this proposed Amendment clarifies the intent of the Congress and three-fourths of the States that the standard of proof is preponderance of the evidence.

Section 5: In order to reinforce that both current and former Officers can be impeached by the House and tried by the Senate, this section explicitly states that the number of votes required for conviction is the same in both types of impeachments.

Sections 6 and 7: In order to reinforce that both current and former Officers can be impeached by the House and tried by the Senate, these sections list out the potential punishments for current and former officers separately. If ratified, this proposed Amendment would explicitly state that the purpose of Impeachment of former Officers is to disqualify them from future office.

Section 8: During former President Trump’s lame duck period, there was much speculation in the media about whether Trump would attempt to pardon himself and, if so, whether such a self-pardon is allowed by the Constitution itself. Section 8 of this proposed Amendment would ensure that never again would there any question about whether the Constitution permitted a President to issue a self-pardon.

Section 9: This section grants the Congress the power to enforce this Amendment through appropriate legislation if and as needed.

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