Former President Donald Trump has had a lot of firsts in his short political career. He was the first president to be voted in without any prior elected experience. He was the first president to be indicted after leaving office, both on the state and the federal level. And he was the first president to be impeached by the House of Representatives on two separate occasions.
Both of those impeachments ended in Senate acquittals. From the perspective of Trump and his allies, that should have been a good thing. But apparently it was not enough. Some leading House Republicans have sought to erase Trump’s twin impeachments by introducing resolutions that would purportedly “expunge” them from the record.
Politico reported on Thursday that House Speaker Kevin McCarthy has even promised Trump that he would hold the vote to erase the impeachments before the House’s August recess begins. McCarthy made that pledge, according to the news outlet, to ameliorate Trump’s reported fury that the House speaker had suggested the former president may not be the GOP’s best standard-bearer in 2024. It is unclear when exactly a vote will take place (Politico reported that McCarthy’s camp has dragged that particular goalpost back to September), whether it would pass, or, more importantly, if it would even matter.
The resolutions come from two of the most hard-right members of the House GOP caucus. Georgia Representative Marjorie Taylor Greene introduced a resolution last month targeting Trump’s first impeachment in 2019 for coercing the Ukrainian government to falsely smear then-candidate Joe Biden with corruption allegations, while New York Representative Elise Stefanik introduced a parallel resolution that targeted Trump’s second impeachment in 2021 for incitement of insurrection to prevent then-President-elect Biden from assuming office.
Greene’s resolution is fairly bare-bones: It would declare the first impeachment expunged “as if such Articles had never passed the full House of Representatives” and that the articles themselves didn’t meet the burden of proof for conviction. Stefanik’s resolution does the same thing while rehashing multiple conspiracy theories related to the 2020 presidential election. It also declares that Trump did not actually commit insurrection or rebellion that would preclude him from holding future office under the Fourteenth Amendment.
This all raises an obvious question: Can Congress actually “expunge” an impeachment? The Constitution does not describe such a process, and Congress has, to my knowledge, never tried to do something like it before. But Congress also does a lot of procedural things that the Constitution doesn’t describe. The filibuster isn’t in the Constitution, after all, but it is in the rules of the U.S. Senate. And by the same token, there isn’t anything in the Constitution that says Congress can’t expunge an impeachment.
At the same time, I’m not sure what such an “expungement” would actually mean. We usually think about expungements in the context of criminal records. People can get specific offenses expunged by the courts under certain circumstances in many states. Legally speaking, an expungement in that context would make it as if that person’s arrest, indictment, and/or conviction had never happened.
That doesn’t really make sense when applied to the impeachment process. Jonathan Turley, a George Washington University law professor who frequently sides with Trump on constitutional questions, dismissed the idea in an interview with Reuters last month. “It is not like a constitutional DUI,” he told the news organization. “Once you are impeached, you are impeached.” And while the current Congress could express its disagreement with a previous Congress’s decision to impeach Trump, it can’t substantively change what happened.
If Trump had actually been convicted by the Senate in 2021, this could be a slightly more interesting question. Impeachments aren’t criminal proceedings; the Senate can’t actually imprison or fine someone even after convicting them of what the Constitution describes as a “high crime or misdemeanor.” The only two penalties that senators can apply are removal from office and disqualification from holding future office. When a president is impeached, the Constitution says that removal from office is automatic upon his conviction. But holding future office is a discretionary punishment: The Senate could theoretically convict a president (and thereby remove him from power) but decline to disqualify him, enabling him to run again.
All of that is purely hypothetical, of course, because the Senate didn’t convict Trump after either of his trials. Senators came far closer with the second one, for incitement to insurrection, with 57 of them voting that Trump was guilty and 40 senators voting that he was not guilty. Seven of the “guilty” votes came from Republican senators in what amounted to a historic bipartisan rebuke. But since a two-thirds vote is necessary to convict, Trump was ultimately acquitted. (This did not affect a future criminal trial because the Constitution explicitly excludes impeachments for double-jeopardy purposes.)
If Trump had actually been convicted, removed from office, and permanently disqualified from future office, could a future Congress expunge that conviction and allow him to run for president again? I would like to think not. It would not make much sense for Congress to be able to craft an extra-constitutional mechanism to overcome a constitutional one. The Framers also explicitly excluded impeachments from the pardon power, which could be taken to mean that the Senate’s judgments are final. In this hypothetical scenario, such an expungement would likely lead to a legal battle that would reach the Supreme Court. From there it would be anyone’s guess.
But, again, Trump wasn’t actually convicted of anything, so there’s nothing for the House to actually remedy here. The House of Representatives can’t unimpeach someone in a practical sense. There is no “criminal record” or “impeachment record” of sorts for anything to be expunged from. And even if Greene, Stefanik, and McCarthy burn every copy of the Congressional Record that includes Trump’s impeachment proceedings, they can’t make everyone pretend that it didn’t happen. Wikipedia’s list of presidential impeachments will still include both of Trump’s escapades. C-SPAN’s footage of the proceedings will still be freely available. All of the articles I wrote about them will still be online.
The other complicating factor here is that Trump was already found not guilty by the Senate after both trials. It makes no sense for the two resolutions to declare that the evidence was insufficient to convict Trump; the Senate’s decision not to convict Trump means exactly that. It would be one thing if control of the House had somehow changed hands before the Senate trial and the new majority wanted to reverse their predecessor’s decision. But the Senate has already granted Trump all the relief that the resolutions could hope to provide.
All of this makes far more sense not as an act of Congress but as yet another loyalty test for Trump and his closest allies to impose upon the rest of the Republican Party. It’s not enough for them to quietly look the other way after he corruptly abused his power in the Ukraine scandal or staged a coup attempt on January 6. A more exacting toll must be levied as Trump fends off multiple primary challengers and multiple criminal prosecutions. In Trumpworld’s eyes, GOP lawmakers must affirmatively vote in favor of a resolution that declares the former president did nothing wrong and that the people who tried to hold him accountable for imperiling American democracy are the real villains.
That may ultimately backfire. After Politico’s reporting on Thursday morning, a small group of centrist House Republicans ruled out the possibility that they would vote for the expungement resolutions, which they alternatively described as procedurally pointless and political suicide. The Republicans’ razor-thin majority in the House makes it impossible for such a motion to succeed without their support. McCarthy and his closest allies, for what it’s worth, also disputed the outlet’s reporting of some kind of deal between the speaker and the former president. That is unlikely to satisfy Trumpworld’s desire for empty vindication—or Trump’s own self-interested desire to shore up control of the party.
