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It’s too late to impeach Cuomo

Let’s take a stroll down Memory Lane.

Three times in February 2021, this column explained why the U.S. Constitution doesn’t permit impeaching, or having an impeachment trial of, a federal official who has left office.

This isn’t complicated.

In the United States, when government seeks to put someone on trial, government must prove it has the power to do so. It’s not up to anyone else to prove the negative.

To understand why the U.S. Constitution doesn’t permit impeaching, or having an impeachment trial of, a federal official who has left office, one need read only two sentences in the U.S. Constitution:

¯ Under Article II, Section 4, “The President, Vice President, and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”

¯ Under Article I, Section 3, Clause 7, “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: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment according to Law.”

So upon conviction, the person being tried “shall be removed from Office.”

May the U.S. Senate, which conducts federal-impeachment trials, do more? Yes. It may also disqualify a person convicted from “hold(ing) and enjoy(ing) any Office of honor, Trust, or Profit under the United States.” However, such disqualification need not, and doesn’t automatically, follow an impeachment conviction.

Regardless of whether such disqualification occurs, the U.S. Constitution requires that a person convicted “be removed from Office.”

Because an official who has left office can’t be removed from office, the U.S. Constitution doesn’t contemplate impeaching, or having an impeachment trial of, a federal official who has left office, regardless of who the person is, which office the person held, or what the person is accused of doing.

Now these questions are arising in New York and under the New York Constitution.

To see whether the New York Constitution permits impeaching, or having an impeachment trial of, a state official who has left office, let’s see what the New York Constitution says:

¯ Under Article VI, Section 24, “Judgment in cases of impeachment shall not extend further than to removal from office, or removal from office and disqualification to hold and enjoy any public office of honor, trust, or profit under this state; but the party impeached shall be liable to indictment and punishment according to law.”

Unlike the U.S. Constitution, the New York Constitution doesn’t say that upon conviction, the person being tried “shall be removed from Office.”

Nevertheless, the New York Constitution says “(j)udgment in cases of impeachment shall not extend further than to removal from office, or removal from office and” particular disqualification.

Either way, the judgment includes removal from office.

Because an official who has left office can’t be removed from office, the New York Constitution doesn’t contemplate impeaching, or having an impeachment trial of, a state official who has left office, regardless of who the person is, which office the person held, or what the person is accused of doing.

In February 2021, the former federal official who was the target of accusations was former President Donald Trump.

Now in New York, the former state official who is the target of accusations is former Governor Andrew Cuomo.

Just as it was unconstitutional to have an impeachment trial of Trump after he had left federal office, it’s unconstitutional to impeach, or have an impeachment trial of, Cuomo after he has left office. It’s just too late.

Sauce for the goose is sauce for the gander.

Or to put it more precisely, no sauce for the goose means no sauce for the gander.

Like many New York residents, Dr. Randy Elf will be curious to see whether anyone – and if so, who – takes different positions on the law as it affects Republican Trump and Democrat Cuomo.

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