Republicans unhappy with the impeachments of former President Donald Trump have for years been vocal about their outrage. But during the last Congress, a group of more than two dozen lawmakers in the House went even further, introducing resolutions to “expunge” the impeachments.
And now that Republicans have wrested back the majority in the chamber, House Speaker Kevin McCarthy says he’s willing to consider such an effort.
“I understand why individuals want to do it, and we’d look at it,” McCarthy, California Republican, said in response to a question earlier this month during his first weekly news conference.
But his comments raised questions of their own. Namely: Is expunging Trump’s impeachments even possible?
The answer, constitutional experts say, is complicated.
For one thing, it would be unprecedented in this context.
According to the House historian, impeachment proceedings have been initiated more than 60 times in U.S. history against office holders across the federal government, and less than a third of the proceedings have led to full impeachments. That figure includes 15 federal judges, an 18th century senator and a 19th century Cabinet official along with, most notably, President Andrew Johnson in 1868, President Bill Clinton in 1998 and Trump. Eight impeachments – all of them of federal judges – have led to convictions and removals from office by the Senate.
None has ever been expunged.
Expungements are far more closely associated with the legal process than the political process. They are often sought in state and local courts to erase the record of a prior conviction for certain predetermined offenses. People who have been acquitted or have had charges against them dropped also seek expungements to remove the association from their records, and some states even automatically purge those references after a given amount of time.
It’s far from clear that the House would have the legal or political authority to erase such a record.
But that didn’t stop more than 30 Republicans during the last Congress from sponsoring a resolution laying out objections to Trump’s impeachment for his role in the Jan. 6, 2021, insurrection and seeking to expunge it. A similar resolution was also put forth for Trump’s 2019 impeachment for wrongdoing and obstruction of Congress.
Democrats controlled the House at the time, and the resolutions never made it to a vote. But now that Republicans are back in power and would likely have the votes to adopt similar resolutions, nothing is likely stopping them from doing it, experts say.
Even there, uncertainties abound. Resolutions are not like bills in that they are extremely limited in scope, will not involve another chamber and are just a reflection of lawmakers’ feelings on a certain subject at a certain time.
“Generally speaking, a majority can pass a resolution that expresses their sentiment. And so in that sense, there’s probably a good case to be made that they would have the power to do that,” says Michael Gerhardt, a law professor at the University of North Carolina School of Law whose research focuses on constitutional conflict.
But expressing sentiment is really all an expungement resolution could do.
“In order for any kind of resolution regarding Trump’s first impeachment to be undone, you’d have to concede at the outset, this action that we’re doing has no legal effect,” Gerhardt says.
Further, impeachment is a process that involves both chambers of Congress, with a vote for impeachment in the House triggering a trial in the Senate. In Trump’s case, he was impeached in 2019 and 2021 by the House – the equivalent of a criminal indictment – but was acquitted in both cases by the Senate, which is charged with conducting a trial.
The importance of that fact is underscored by a similar – but crucially different – historical event.
In 1834, the Senate took the then-unprecedented step of formally censuring President Andrew Jackson. But three years later, the same chamber voted to expunge that censure, in this case by physically marking out the censure in the congressional record books.
The difference between that event and a possible expungement of Trump’s impeachment is that a censure involves a one-step action by a single chamber.
“Impeachment is different because when the House impeaches a president, then it then causes something outside of the House to happen,” says Josh Chafetz, law professor at Georgetown Law who specializes in structural constitutional law. “So my view is that the House can’t sort of expunge an impeachment. Once it has impeached, the matter is sort of out of the House’s hands at that point, which I think makes it importantly different than a censure.”
In that way, an expungement resolution “wouldn’t actually change anything, except it would constitute a sort of statement in relatively strong language by the House that it doesn’t think that they should have impeached Trump in the first place,” Chafetz says.
On a practical level, too, Gerhardt notes there is no way to cross out an impeachment in our modern times, especially considering the vast quantity of information revealed by the impeachment and the heavy, long-lasting coverage and dissemination of that information.
“It’s kind of a stunt that’s designed to make certain constituents happy, but I think it’s going to have zero constitutional impact,” Gerhardt says.
Still, should Republicans adopt a resolution declaring the impeachment expunged, Democrats would have few ways to arbitrate that claim short of themselves or a future Congress adopting a resolution of their own. It is likely not an issue that could be played out in court, for example, scholars say. And in a similar vein, there would be nothing stopping Trump and his allies from simply claiming that the impeachments were expunged in the legal sense, even if constitutional experts heartily disagree – creating a mess of confusion and differing histories.
What’s more, an expungement resolution would create a new and startling precedent, one that would open the door to similar attempts from any majority group for any impeached president, be it Andrew Johnson or Bill Clinton or any future president to be impeached.
That, Gerhardt says, “would just be constitutional chaos.”