The political atmosphere in Watergate was somewhat charged: a President unpopular among lawprofessors, whose conduct seemed clearly to be impeachable, who resigned rather than face impeachment,
and who was pardoned by his successor. Other than the dim possibility of state criminal proceedings, the
only possibility of punishing Nixon under the law was to impeach him even though he had left office.
One article in the Duke Law Journal argued that Nixon could still be impeached,507 even as it conceded
that Congress appeared unlikely to do so.508 Another article reached the same conclusion in quite strong
terms,509 and chided Raoul Berger for leaving the late impeachment issue completely out of his book
Impeachment: The Constitutional Problems.
510
It was assumed by some of these same commentators that an impeachment conviction would allow
Congress to strip Nixon of his pension,511 but it now seems that this would have violated the
constitutional limitation on judgments to removal and disqualification. In retrospect, Congress could have
taken steps to allow late impeachment to strip an ex-officer of his pension, but it was probably too late to
apply such law to Nixon.512
Most recently, Michael Gerhardt, perhaps the leading scholar of impeachment working today, has
written that there is a “surprising consensus among commentators” that late impeachment is acceptable.513
(In fact the consensus, while surprising, is not unanimous.514) Gerhardt agrees that the precedents of
failure to use late impeachment reflect practical considerations rather than constitutional limits.515
Gerhardt cites the Warren Hastings precedent and pre-1787 state constitutional language addressing late
impeachment.516 He continues with a structural argument about disqualification, evidence of original
understanding, citation to John Quincy Adams, and a dismissal of Justice Story’s concerns.517
