Proposed expungements of the impeachments of Donald Trump

A proposal has been floated by some Republican members of the United States House of Representatives of having the Republican-led House vote to "expunge" the two impeachments of former U.S. president Donald Trump, a Republican.

Legal, political experts, and historians have expressed skepticism as to the impact and significance that such a vote would have. Many have argued that such a vote could only be symbolic and would have little or no legal effect, while some differing opinions have argued that there is nothing to preclude the Congress from revoking a previous impeachment action. Many commentators have characterized the proposal as an attempt by Republicans to delegitimize Trump's impeachments in the public's recollection.

In June 2023, the effort received support from then-Speaker Kevin McCarthy.

Background
While serving as president of the United States, Donald Trump (a Republican) was twice impeached by the United States House of Representatives while it had Democratic Party majorities. His first impeachment was in 2019 for the Trump–Ukraine scandal. His second impeachment charged him with inciting the January 6 United States Capitol attack. Trump was acquitted in both of his impeachment trials before the United States Senate, with neither trial receiving the two-thirds margin required to convict.



There is no direct precedent for an expungement of an impeachment, and scarce analogues in American government. One partial-analogue was the 1837 vote by a Democratic-controlled Senate voted to "expunge" an 1834 censure of Democratic president Andrew Jackson. This censure had been adopted by a previous Whig-controlled Senate. In November 2010, Democratic Congressman Chaka Fattah introduced a House resolution which would have "disavowed" the 1998 impeachment of President Bill Clinton. This resolution was referred to a congressional subcommittee and no further action was ever taken on it.

History
On February 1, 2020, days before the conclusion of Trump's first impeachment trial, Republican Congressman Lee Zeldin opined that Republicans should expunge the impeachment if they won a House majority in the upcoming 2020 House elections, tweeting, "The House of Representatives should EXPUNGE this sham impeachment in January 2021!" On February 5, the day that the impeachment trial ended in acquittal, House Minority Leader Kevin McCarthy (a Republican) was quoted by the New York Post as remarking, "This is the fastest, weakest, most political impeachment in history. I don’t think it should stay on the books." Two days after the impeachment trial ended, after being asked by a reporter about the prospect of having his impeachment expunged by the House, Trump remarked, ""They should, because it was a hoax. That’s a very good question. Should they expunge the impeachment in the House? They should because it was a hoax. It was a total political hoax.""

In 2022, Republican Congressman Markwayne Mullin introduced resolutions to remove Trump's impeachments from the Congressional Record. This received support from House Republican Conference Chair Elise Stefanik. At the time, the House had a Democratic Party majority and the resolution was not passed.

On January 12, 2023, Kevin McCarthy, by then recently elected to serve as speaker of the House, voiced openness to the concept, remarking, "I would understand why members would want to bring that forward. I understand why individuals want to do it, and we'd look at it."

On June 22, 2023, Republican Congresswomen Elise Stefanik (chair of the Republican House Conference) and Marjorie Taylor Greene introduced a pair of resolutions to expunge Trump's impeachments which were then sent to the House Judiciary Committee. The next day, Speaker McCarthy lent his support to the resolutions.

In July 2023, Democratic House Minority Leader Hakeem Jeffries, condemned the effort, remarking, "The extreme MAGA Republicans are more concerned with settling scores on behalf of the former twice impeached, President of the United States of America, the insurrectionist in chief, Donald Trump, instead of solving problems for the American people." House Speaker Emerita Nancy Pelosi, also a Democrat, characterized the effort as "pathetic".

In late July 2023, Politico published a report that unnamed sources had claimed that McCarthy had promised Trump that the House would vote to expunge Trump's impeachments prior to the House's August 2023 recess. The report said that this promise had been made by McCarthy as an effort to make peace with Trump, coming after McCarthy upset Trump with public comments in July 2023 on Trump's general election prospects as a 2024 presidential nominee. McCarthy publicly denied that such a promise had been made. , no votes had been called to expunge the impeachments.

Multiple weeks after the removal of Kevin McCarthy as Speaker of the House, McCarthy called Trump to ask why he didn't support him when he was facing removal. Trump responded by asking why he didn't expunge his impeachments and endorse his 2024 presidential campaign.

Analysis
Such an expungement of an impeachment is unprecedented, as the United States Congress has never expunged an impeachment. Legal and political experts have been skeptical as to the impact and significance that such a vote would actually have. In June 2023, Sara Dorn of Forbes wrote that, "politicos have widely mocked", the idea, "while experts have expressed uncertainty about its impact." At the same time, Claire Hansen of the U.S. News & World Report wrote of the possibility of removing the impeachments from the congressional record that, "it’s far from clear that the House would have the legal or political authority to erase such a record." In January 2023, Samaa Khullar of Salon described experts as largely having "mock [ed] " the concept of expunging Trump's impeachments.

In 2022, Steve Benen of MSNBC wrote of the idea, "The [Republican] effort to rewrite history is ridiculous." Comparing it to the 1837 expungement of Jackson's censure he wrote, "The point at the time [of Jackson's expungement] was for partisans to say that the congressional action happened, but for the sake of the historical record, it didn’t really count. Trump’s acolytes appear to have similar intentions now."

In June 2023, Ed Kilgore of The Intelligencer argued that the legal parallels to the 1837 expungement of Andrew Jackson's censure are limited, since impeachments are an action outlined in the United States Constitution, while censure is not. Georgetown Law Professor Josh Chafetz noted that another distinction is that a censure is the act of only one chamber of the United States Congress, whereas Trump's impeachments each involved both an impeachment vote in the House of Representatives and an impeachment trial in the Senate, remarking, "Impeachment is different because when the House impeaches a president, then it then causes something outside of the House to happen. 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."

Chafetz further opined that a vote by the House to "expunge" Trump's impeachment,

"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."

In July 2023, characterizing the effort as "political theater", fellow Georgetown Law professor David Super remarked, "There's nothing to expunge from and there's no legal authority for an expungement. There's no provision in the Constitution for undoing an impeachment. There's also no legal effect of an impeachment that doesn't result in a conviction, so there's nothing for the House to cancel. It's a fact of history that Andrew Johnson was impeached once, Bill Clinton was impeached once and Donald Trump was impeached twice, and annuling that is like saying you're going to annul Paul Revere's ride. It happened whether you like it or not... . There's nothing in the Constitution that authorizes just the House to take an action of this kind, and since the framers certainly knew how to write that, as to those who wrote some of the amendments, we have to assume that there's no such power exists... . The Constitution does not provide any legal effect for an impeachment except that it authorizes a trial of conviction in the Senate. There were two impeachments, neither resulted in a conviction in the Senate and it has no legal effect. You can't undo something that has no effect in the first place and it would be very strange if the framers saw any reason to do that. This is pure theater."

Super also remarked that the effort would be ineffective at removing memory of the impeachments from Americans' minds, remarking, "We all know what happened. We saw it on TV. It's memorialized on the internet."

In 2020, Brookings Institution senior fellow in governance studies and George Washington University political science professor Sarah Binder opined that any motion to expunge would be "cosmetic". She noted that despite the vote to "expunge" his censure, "we still count Andrew Jackson as the only censured president." Binder further remarked, "This current House agreed to [the impeachment resolution] . And while a future House could adopt a resolution that says it is striking the adoption from the Record, that doesn't undo the fact that the current House agreed to those two articles of impeachment."

In July 2023, historian Joshua Zeitz wrote an article that was published by Politico that opined that Jackson censure expungement vote provides historical evidence that such a vote does not remove a previous congressional action from historical legitimacy, concluding, "Once impeached – or, in this case, twice – a president cannot be unimpeached. The original act lives on in public memory – through news articles, history books."

In June 2023, Eugene Robinson of The Washington Post wrote that the effort to expunge Trump's impeachments, "would be laughable if not so dangerous": "The aim appears to be to allow Trump, the likely GOP presidential nominee in next year’s election, to claim that despite the events we all witnessed, he was never impeached at all. That lie can then become part of the fake historical record he sells to his supporters." Robinson further wrote,

"For the record, expunging a presidential impeachment is not a thing. It has never been attempted because it makes no sense. Both of Trump’s House impeachments led to trials in the Senate, as the Constitution instructs. Is the Senate supposed to pretend that those trials, which ended in acquittals, never happened? What about the pages in the Congressional Record that chronicle the impeachment proceedings? Would they be ripped out and destroyed?"

In June 2023, conservative legal scholar Jonathan Turley of George Washington University Law School expressed the belief that the idea of expunging an impeachment is nonsensical, since impeachments do not involve criminal charges. Turley had been a witness during the 2019 impeachment inquiry against Donald Trump, having been called to provide expert testimony on behalf of Trump's defense. In June 2023, Turley remarked, " [Impeachment] is not like a constitutional DUI. Once you are impeached, you are impeached," adding that the United States Constitution lacks any provision for expunging impeachments. Turley, however noted that an expungement resolution could still be historically significant in expressing a congress' belief that an earlier congress' impeachment had been an error. Turley had, in 2020, earlier commented on the concept of expunging Trump's first impeachment by remarking,

"Expungement is more cathartic than constitutional. The President was impeached the minute a majority voted on [ the first article of impeachment ] . ... The House can express the view of that House as to the basis for impeachment, nothing more. It will create a record of its own but not alter the record of the prior Congress."

Indiana Law School professor Gerard Magliocca wrote in 2019 of the idea of expunging Trump's first impeachment,

"It's never been done before, but I am hard-pressed to see why the House is bound by an impeachment passed by a prior one. This is different from an impeachment and a conviction. The Senate's judgment in impeachment trials is final. The impeachment itself, though, is not different from any other House resolution ... I doubt, though, that a repeal of an impeachment will mean that people will say that President Trump was not impeached."

In June 2023, Hayes Brown of MSNBC noted that there is no rule explicitly forbidding such an action and that the judiciary has generally taken a "hands-off approach" to questions related to impeachment. Brown further wrote,

"Impeachment is a political matter, not a legal one. The common comparison is that articles of impeachment are akin to criminal charges being filed, which are then tried in an impeachment court. Carrying that metaphor through, it tracks that much as arrests and charges can be expunged from civilians’ records, the House could expunge articles of impeachment from Trump’s. As for the practical effect the resolutions from Greene and Stefanik would have, that’s less clear. When a court orders an expungement, the records in question are typically sealed or destroyed. What would that mean in the case of a set of resolutions the House has passed? The idea that the text of the resolutions would be stricken from future copies of the Congressional Record, say, or pulled down from public-facing websites seems unlikely."

In 2022, Jesse Rifkin of GovTrack Insider observed that, "nothing in the Constitution explicitly precludes Congress from taking an impeachment back."

In June 2023, Benedict Cosgrove of The Independent wrote, "Impeachment ... has the trappings of a judicial proceeding. And if criminal charges can be expunged from civilian records, one can see why Republicans embrace a kind of legal magical thinking in their efforts to legitimize what is, ultimately, a political charade."

In 2020, Rutgers American politics professor Ross Baker commented on the idea of expunging Trump's first impeachment, "There is no way I know of to expunge an impeachment... . The impeachment is indelible; the high court of history has already ruled it in." At the same time, University at Buffalo Law School professor James Gardner similarly commented "There’s nothing in the Constitution that provides for a procedure of expungement," opining that an expungement vote, "would be of no significance. Certainly of no legal significance... . It might be of political significance." Democrat Nancy Pelosi, at the time the speaker of the House, expressed her belief that expungement of an impeachment is not something that can actually be done. Pelosi expressed her belief that impeachment is "forever". In July 2023, Pelosi remarked, "it is not even clear if [the House] constitutionally can expunge those things."

In June 2023, writers for Fox News, Axios, and The Independent each characterized the impact of a resolution to expunge as being "largely symbolic". Sahil Kapur of NBC News wrote that an expungement vote would, "amount to a symbolic pro-Trump vote without legal or practical impact."

In June 2023, writing that "it is not at all clear that [expungement] can actually be done," the editorial board of The Fresno Bee characterized the effort as an, "attempted whitewashing of Trump’s soiled record as the only chief executive to ever be impeached twice," and criticized Kevin McCarthy (whose district represented part of Fresno) for supporting the effort.

In June 2023, Amanda Marcotte of Salon opined that an expungement vote would be part of a Republican Party "war on history". Charlie Sykes of The Bulwark characterized such a resolution as being an effort at "gaslighting" the public into believing that the impeachments never happened. Lisa Mascaro of the Associated Press characterized the proposal to expunge Trump's impeachments as the "latest [effort] by Trump’s allies to rewrite the narrative of the defeated president’s tenure in office as he seeks another term in the White House," and characterized McCarthy's support of it as highlighting the political pressure that McCarthy is receiving from right-wing Republicans.