Yes, Nancy Pelosi Can Become President

Seth Barrett Tillman and I defend the constitutionality of the Presidential Succession Act in Atlantic

|The Volokh Conspiracy |

Seth Barrett Tillman and I defend the constitutionality of the Presidential Succession Act in the Atlantic. This essay is based on our taxonomy of offices and officers in the Constitution.

Here is the introduction

Assume that President Donald Trump is impeached and removed from office. At that point, Mike Pence would become president. The position of vice president would remain vacant until Congress confirmed a replacement, nominated by the president.

This shift in positions could result in a very unlikely possibility: If, prior to the confirmation of a new vice president, President Pence were to become unable to discharge the office, then Nancy Pelosi, the speaker of the House, would assume the office of the president under the Presidential Succession Act of 1947.

Or would she? Two prominent constitutional-law professors contended in 1995 that the Succession Act now in force is unconstitutional. And a recent New York Times op-ed agreed: Legislators, such as the speaker of the House, cannot be elevated to the presidency, the thinking goes.

This theory, if correct, risks throwing the United States and the entire free world into a state of chaos. The speaker and the secretary of state (the next-in-line, nonlegislative officer) could both claim, with some legitimacy, to be president. Bush v. Gore would be tame by comparison.

A better reading of the Constitution, however, gives Congress the power to place Nancy Pelosi second in line for the presidency. But, as we'll get to below, that same reading has an unexpected implication: Contrary to common belief, after removing the president from office, the Senate cannot disqualify him from being elected back into the White House.

Our analysis starts with the succession clause in Article II of the Constitution. The Constitution specifies that the vice president serves when the presidency goes vacant. But what happens if both positions go vacant, a so-called double vacancy? The Constitution's succession clause states: "Congress may by Law … [declare] what Officer shall then act as President." And Congress has done just that: The Presidential Succession Act places the speaker of the House next in line after the vice president. If the speaker is an officer, then there is no problem, because the Constitution clearly states that Congress may place officers in the line of succession.

Our position also has implications for the Disqualification Clause and the Foreign Emoluments Clause:

This understanding of the Constitution's divergent language relating to office and officer has two important—and surprising—implications. First, if President Trump is removed from office, the disqualification clause allows the Senate to preclude him from "hold[ing] and enjoy[ing] any Office … under the United States." It is generally assumed that this provision means that the Senate can thus bar an ejected first-term president from being elected to a second term. Indeed, many "explainers" published on the impeachment process take this outcome for granted, without any skepticism, even in the absence of any on-point judicial authority. But, the phrase office under the United States (much like officer of the United States in the impeachment clause) prevents Trump only from being appointed to an office in any of the three branches. Senate disqualification would not prevent Trump from being elected to the House, the Senate, or even a second term as president. That outcome makes sense: Let the voters decide.
Second, the Constitution's foreign-emoluments clause applies only to a "person holding any Office … under" the United States. Again, this language prevents only appointed federal officers, not elected officials, from accepting foreign-state gifts and some forms of compensation from foreign states. As a constitutional matter, the president and members of Congress can accept foreign-state gifts. We have previously written that President George Washington received, accepted, and kept valuable gifts from the French government, and he did not seek congressional consent.

Recently, however, a federal court concluded that the president was subject to the foreign-emoluments clause. This ruling, which is on appeal, unintentionally casts doubt on the validity of the Presidential Succession Act. That decision rejected the careful textual distinctions the Framers drew: Much of the "officer" language in the different clauses distinguishes between appointed officers and elected officials in all three branches. Abandoning this textual dichotomy is a reading akin to that put forward by the Amars. The logical consequence of that position is that elected legislative-branch officials, such as the speaker, are not officers. Under this court's approach, the Presidential Succession Act, which places the speaker in the line of succession, would be unconstitutional.

That result is very dangerous. The Supreme Court, should it eventually consider the emoluments-clause cases, would be wise to reverse course, and recognize that the Constitution's text draws a distinction between appointed officers and elected officials in the federal government. Or, at least, the Court should decline to decide the question. Otherwise, the justices may very well usher in political and legal chaos should a double vacancy arise.

The process prescribed by the Constitution and the Presidential Succession Act is much simpler. If Trump and Pence are out of the picture, then Pelosi becomes president. Full stop. But the Senate, even if it removes and disqualifies Trump, could not prevent him from being elected to a second term as president. Moreover, even while he is president, Trump-affiliated commercial properties could continue catering to foreign governments without creating any constitutional problems.

We realize these results are counterintuitive by modern sentiments, and for some undesirable. Still, each of these outcomes is far better than the genuine constitutional calamity that might emerge if the courts abandon the Constitution's vital textual distinction between appointed officers and elected officials. We would much rather have one unpopular, term-limited president than two dueling senior federal officeholders laying claim to the presidency.

To clarify Clarence Thomas can preside at a presidential impeachment trial, Nancy Pelosi can become President, and Donald Trump can serve a second term. Got it?

NEXT: Today in Supreme Court History: November 20, 1910

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  1. “ Indeed, many “explainers” published on the impeachment process take this outcome for granted, without any skepticism, even in the absence of any on-point judicial authority.”

    Why should anyone view WITH skepticism the idea that being removed from office due to being unfit, or incompetence, or criminality, or abuse of authority, etc., means a person can no longer serve in office? Skepticism should be reserved for new readings of the constitution wherein all we’ve known and/or assumed previously is tossed out if said knowledge and assumptions somehow work to the benefit of a democrat.

    1. I’ve always known that the Constitution had an attitude that voters get their choice at elections. Notice the only requirement is age. Courts have consistently thrown out state term limits and other restrictions on federal elected offices. California is the latest effort to ignore this, with their silly requirement that candidates have to release their income tax forms to be on the ballot.

      Every time someone has said impeachment conviction prevents re-election, I’ve asked why; like this post says, everyone just assumes that without questioning it. But it doesn’t jibe with their attitude towards voters having the final say.

      1. On what basis do these courts strike down state term limits?

        1. The constitution sets the requirements for eligibility for Senators, Representatives, and the President.

          Those eligibility requirements can not be added to or subtracted from short of a constitutional amendment.

          1. Ah I get what you are saying, the state term limits apply to the US Senators/Reps from their own state not the state legislatures

            1. Yes, the state imposed term limits that were struck down by the federal courts applied to the state’s US Senators/Reps not to state elected officials.

      2. But you could ask the same question with respect to the age an other requirements for elective office.

        If Kansas voters want to elect someone from Nebraska to the Senate, why stop them?

        If the voters want a 30-year-old President, why should the Constitution prohibit that?

        I suppose the answer is that it is reasonable to define characteristics that render an individual unsuited to hold office despite the voters’ wishes. It’s not as if the Constitution demonstrates a great deal of trust in popular elections.

        1. I suppose the answer is that it is reasonable to define characteristics that render an individual unsuited to hold office despite the voters’ wishes.

          Where does the Constitution define “having been removed from office based on votes taken by Congress” as a characteristic that renders an individual unsuited to hold office?

      3. I just received a news update that the California Supreme Court unanimously struck down the tax return requirement.

  2. Wouldn’t that reading of the disqualification clause make it redundant, given that the Senate can prevent someone from assuming an appointed office even without impeachment, simply by not confirming them?

    Also, for the record, I think the rest of the “free world” will be just fine if there are two claimants for the American throne. Let’s not exaggerate America’s importance in the world.

    1. “Wouldn’t that reading of the disqualification clause make it redundant, given that the Senate can prevent someone from assuming an appointed office even without impeachment, simply by not confirming them?”

      No.

      1. See recess appointments.
      2. Some lesser officers can be appointed without requiring Senate Confirmation. Impeachment applies to them too.

      1. Recess appointments are no longer a way to prevent the government from functioning. The Senate can eliminate any recesses by manipulating its adjournment rules. NLRB v. Canning, 2014.

    2. Wouldn’t that reading of the disqualification clause make it redundant, given that the Senate can prevent someone from assuming an appointed office even without impeachment, simply by not confirming them?

      No. The Senate of 2019 cannot prevent the Senate of 2025 confirming someone. Whereas if the Senate of 2019 disqualifies someone, the Senate of 2025 cannot confirm them.

      It would be an interesting question as to whether legislative action by the House of 2025 plus the Senate of 2025 plus the President of 2025 could remove a 2019 Senate disqualification by legislation. Such a law might be unconstitutional (trumping a direct constitutional power with a mere statute.)

  3. In general, if you come up with a surprising new analysis, and it shows, that Al Kaline, not Bab Ruth, was the best player, then you are doing it wrong.

    1. Kaline was a MUCH better fielder than the Babe, a better base runner, and didn’t strike out anywhere near as often. I’d say you could make a better argument there than the argument that the foreign emoluments clause doesn’t apply to the president.

    2. Do you see the problems inherent in this position though?

      “I don’t like the outcome so by definition that can’t be right” is what led millions to die in China. After all, Mao was clearly trying to benefit his people, so if that’s not the result that obtained it couldn’t have been because his plan didn’t work, but is instead evidence of an external bad actor.

      Originalists, at least in theory, will conclude things they oppose are the law. You seem to be arguing that the fact that you don’t like the result is evidence that it’s wrong…… so you can only reach the results you like.

      Somehow I doubt you’d be so sanguine should enough theocrats be seated on the courts and they followed that same method.

    3. As someone born and raised in Detroit, if you had wanted to make a sharp contrast you could have instead compared one of those steroid-abusers to Ruth. They would have better proved your point.

      (Though off-topic, among many other sterling exploits, I can still remember being in Tiger Stadium for the 5th game of the 1968 World Series to cheer No. 6’s hit that won the game and turned the series around.)

  4. “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…” If I read Prof. Blackman’s argument correctly, the Senate is not obligated to remove the President if found guilty.

    This opens up a whole can of worms. What other punishments could be on the table that are not specifically barred? Would the Senate have to approve the punishment separately, or prior to the trial? If the former, would it be necessary for two-thirds to concur in the punishment, or simply a majority? Could there be such a thing as a “hung jury” in terms of punishments? One supposes the Senate would have to rule on these matters internally. I’m particularly intrigued now by the comma in that clause; one might argue that the Senate could convict the President and simply bar him from running again without removing him from office. That would greatly reduce the incumbency advantage that a President Pence would enjoy (assuming that Trump did not simply resign at that point).

    1. “What other punishments could be on the table that are not specifically barred?”

      None. “Shall not extend further than” explicitly bars ALL punishments beyond removal from office and disqualification to hold office in the future.

      1. Well, not really. It bars punishments of greater severity than removal from office and a lifetime ban on officeholding. It’s also worth noting that the language used (shall not extend further) is trying to convey that the penalties are to be civil not criminal, in contrast to how often members of the English ruling class got imprisoned when they fell out of favor. It also means they couldn’t be stripped of citizenship and banished from the realm, that sort of thing.

        But to return to the original point, if the Senate wanted to levy a penalty it consider lesser than removal, it’s within its constitutional limits to do so. If there were a disagreement over whether the punishment was lesser, the arguments would go to SCOTUS (as a “controversy” in the Constitutional sense, much like Bush v. Gore).

        1. Yes, I can see that it could be rationalized that way, but the key point here is that removal from office, and barring somebody from future offices, aren’t penalties as such. That’s why they don’t engage the double jeopardy clause.

          Hypothetically, the Senate could decide to remove Trump, and only bar him from SOME offices, and that could be a lesser penalty of the same sort. But I’d be hard pressed to see this language as authorizing the Senate to impose something of a different nature than disqualification from office, just on the basis that it was a lesser penalty.

          What did you have in mind?

          1. A formal censure might fit the rule. Clearly lesser than but not the same sort as removal from office. And, at least in prior times, censure was considered a punishment even if today it would hardly be noticed among the social media flamewars.

            1. Heck, they don’t need to impeach him to formally censure him. Nor do they need the cooperation of the Senate.

              The reason for that is that formal censure is legally meaningless. It’s not like it could be unconstitutional for the House to vote that they don’t like you.

              1. I think this analysis is correct. It’s weird to look back and think of times when being censured was a big deal. Now, it just isn’t. And I could totally see Trump or some future extreme candidate (on the left or the right) wearing censure as a badge of honor . . . sort of bizarro-world pro-censure-ship [heh] platform.

                1. Well played.

                  Channeling Justice Scalia, maybe the House could even set of a Board of Censure-ship, so that Presidents could know what they’re being censured for.

                2. You’re already in a bizzaro world once you’ve got diplomats complaining that the elected President is usurping control of foreign policy from them.

  5. The Succession Act, as written, doesn’t make a lot of sense. Why are you moving people from the Legislative branch to the Executive branch?

    Military succession doesn’t work like this. It would make more sense to keep it in the Executive and have one of the State’s governors to take over as President. You could either start with which state has the largest population, or it could be chosen randomly.

    1. I would assume due to them being elected. Other members of the executive aren’t elected. That and good luck choosing ANY one governor to take over- no one would ever agree on how that selection would take place. We can’t even come to the conclusion that maybe, just maybe, Wyoming shouldn’t have more voting power per capita than someone in California or Texas.

    2. Having a state governor take over is not keeping it in the Executive. State governors are neither federally elected nor administered.

      1. Nancy Pelosi was elected by the people of her state, not federally.

        1. But, being a federal position, her state’s election was held under federally-constrained rules. A state governor’s election can be held under pretty much whatever rules the state wants to follow.

          It’s not much of a distinction but that’s the one that I think defenders of the succession act would have to rely on.

    3. I don’t think it’s a good idea to let a President who, possibly along with the VP, is in danger of being removed from office, influence who is to succeed him by, for example, firing the Secretary of State.

    4. The Succession Act, as written, doesn’t make a lot of sense. Why are you moving people from the Legislative branch to the Executive branch?

      It’s worse than not making sense; it’s downright dangerous. It allows impeachment to be used to switch party control over the government. A Republican senate could remove the Democratic administration and replace it with a Republican Speaker of the House (or vice versa, of course). Whereas if you leave the two legislators out of the line of succession, then removing the president and veep hands the job to the presidentially appointed cabinet members.

      I suppose Prof. Blackman could argue that the framers didn’t consider that possibility since they didn’t anticipate parties, and therefore the constitution doesn’t forbid this arrangement — but even if he’s right, and I don’t concede that, it’s certainly a prudential reason for amending the Succession Act.

      1. It’s also really problematic because it’s unclear what would happen if the House were to elect a new Speaker while the now-former Speaker was Acting President. It’s less of a problem if the Treasury Secretary is the Acting President, since s/he can refrain from nominating a new Secretary of State.

      2. Historically have not cabinet appointments been used to render harmless to the president or political party persons out of favor with the prez or party?

        1. That’s more ambassadorships. You expect to actually get some work out of your cabinet.

    5. Considering it in the light of impeachment and crimes that appear to involve the VP as well, I get that it looks odd. But considered in the sense of war or disaster, where it is possible for both the president and vice-president to die or be captured at the same time, then there is at least a very real need to ensure the government continues to function. The next most senior elected official is the logical choice and the House is a more representative body than the Senate which gives us the Speaker as the logical next choice.

  6. “person holding any Office … under”

    Using “…” here is pretty misleading.

    Its only offices of “honor, Trust or Profit ” Those are terms of art with specific meanings inherited from English usage. There have been serious arguments made that the President is not an office of “honor, Trust or Profit”.

    And why is the Speaker an “Officer of the United States”? She can’t act for the Executive.

  7. >> The speaker and the secretary of state (the next-in-line, nonlegislative officer) could both claim

    Could this be what Alexander Haig had in mind when he claimed to be “in charge”?

    1. To be fairer to Alexander Haig than he deserves, he probably went on memory, and when he was younger the Secretary of State was the next in line.

    2. My guess is Mr. Haig was trying to reassure people and state that the government was still intact even though the President had been shot. He said it the wrong way and had political opponents who were able to spin it negatively.

      1. {Jack Nicholson}
        I want the people to know that they still have 2 out of 3 branches of the government working for them, and that ain’t bad.
        {/Jack Nicholson}

  8. The president is not an officer. Now raise your hand and take your Oath of Office!

  9. It’s pretty bold to assume that the Supreme Court would use consistent reasoning in Case B as was used to decide Case A if it creates a result contrary to the Court’s purposes.

    If that were correct, many laws would be unconstitutional under Lemon or Lawrence, all marriage restrictions would be unconstitutional under Obergefell, and the FDA would be unconstitutional under Row and Casey.

    Fortunately (?) for lawyers, this is not the case. The Supreme Court’s arguments – particularly when they are broad policy grounds – are only relevant for the issue that the Court intends to rule on. Once the new law is in place, the Court works to restrict such broad policy pronouncements.

  10. No officer, not even the President, is above the United States, just as no officer, not even the Chief Justice, is above the law. All officers serve under the United States.

    I think interpreting otherwise twists far beyond where plain meaning can lead it. I think omnisignificance has been extended too far when when making a distinction between “of” and “under” requires an interpretation radically contrary to what the Federalist Papers etc. were saying.

  11. Because, if the House puts forward articles of impeachment, the Senate will, of course, take them up, find the President guilty, and remove him from office, right?

  12. That is, a perfectly reasonable interpretative explanation for using “under” instead of “of”when referring to convicted individuals and misconduct is a reminder that officers serve under the United States and are not above it.

    In any event we don’t, for example, interpret the phrases “equal justice under law” and “equal protection of the laws” to apply to different people, or twist ourselves into interpretive knots because the adjectives are different.

    I would suggest that here too, the reason for switching to “under” when referring specifically to judicial proceedings is a rhetorical emphasis that justice and just punishment involve subordination to something recognized as higher.

    1. Sorry, the prepositions are different.

  13. We’re discussing a hypothetical, right?

    Just as we can discuss the possibility that Trump leaves office, Pence and Congress approve Heidi Fleiss as the new VP, then Pence resigns and we get President Fleiss. Fully constitutional. Though (as far as I know) fully hypothetical.

    1. I think it’s more likely that Fleiss would become President than it is that the Senate finds Trump guilty no matter the charges or evidence.

  14. So she has a lot to gain by these hearings, she must be doing them for political benefit.

    This is clearly bribery and quid pro quo.

    1. Speaking of corruption:

      Ukrainian Indictment Claims $7.4 Billion Obama-Linked Laundering, Puts Biden Group Take At $16.5 Million | Zero Hedge

      Quote:
      An indictment drawn up by Ukraine’s Office of the Prosecutor General against Burisma owner Nikolai Zlochevsky claims that Hunter Biden and his partners received $16.5 million for their ‘services’.

      “The son of Vice-President Joe Biden was receiving payment for his services, with money raised through criminal means and money laundering,” he then said, adding “Biden received money that did not come from the company’s successful operation but rather from money stolen from citizens.”

      According to Interfax-Ukraine, MP Andriy Derkach announced at the same press conference that deputies have received new materials from investigative journalists alleging that the ‘family’ of ex-President Yanukovych funneled $7.4 billion through American investment firm Franklin Templeton Investments, which they claim have connections to the US Democratic party.”

      “Last week, November 14, the Prosecutor General’s Office (PGO), unnoticed by the media, announced a new suspicion to the notorious owner of Burisma, ex-Ecology Minister Zlochevsky. According to the suspicion, the Yanukovych family is suspected, in particular, with legalizing (laundering) of criminally obtained income through Franklin Templeton Investments, an investment fund carrying out purchases of external government loan bonds totaling $7.4 billion,” said Derkach, adding that the money was criminally obtained and invested in the purchase of Ukrainian debt in 2013 – 2014.

      “The son of Templeton’s founder, John Templeton Jr., was one of President Obama’s major campaign donors. Another fund-related character is Thomas Donilon. Managing Director of BlackRock Investment Institute, shareholder Franklin Templeton Investments, which has the largest share in the fund. It is noteworthy that he previously was Obama’s national security advisor,” Derkach added.

      1. The source of the story that you’re block quoting is a Russian news agency. Also Ukraine’s criminal procedure doesn’t include indictments.

        1. Reuters has now picked up the story, at least in part, so I’m tentatively placing a little reliance on it.

      2. ZeroHedge is ranked pretty darned low among political news sites. It is listed by various fact check organizations as an “alt-right conspiracy” site located in Bulgaria. It’s known for pro-Russia/Putin and pro-Bashar al Assad positions. Until somewhat recently, the owners of the site were anonymous (“Tyler Durden”) and were outed without their consent.

  15. And who do we have to blame for looking like a Banana Republic now? The Demonrats of course.

    It wouldn’t surprise me if a few blocs of states start saying “that’s enough…we are done!” and talk about some form of peaceful succession. The public is fed up with the constant ham handed “resistance” that is nothing but a bunch of sore losers. And it is impossible for the federal government to function if liberals won’t deal with the fact that they don’t run the show when they don’t win elections. That will leave many asking what is the point to it all. And really there isn’t much of one if the left thinks it has some absolute, inherent right to run the government.

    1. Well done . . . a silly ‘one of these days’ clinger rant that stopped short of expressly mentioning the Second Amendment.

  16. Part of the problem here is that the argument presumes that the Framers set riddles in the Constitution.

    If you want a distinction between appointed officials and elected ones in some context, why not use those terms, rather than burying the distinction, like a coded message, in the text’s usage of “of” or “under,” etc.

  17. I’m having trouble following the logic here. You are saying that if SCOTUS decides that the Presidency is an “Office of Profit or Trust under [the United States]” for purposes of the emoluments clause, then, necessarily, the speaker of the house is not an Officer? How does that work?

    I think a more straightforward reading is that the Presidency and SCOTUS are “offices”, and that those who hold it are “officers” (but not eg “inferior officers”, and the President and VP might not be “civil officers”). Congress isn’t an “office”, and its members aren’t automatically “officers”, but they might be if they’re appointed to a specific position (the House shall “chuse their Speaker and other Officers”: the word “other” implies that the Speaker is an officer). Furthermore, people cannot simultaneously hold “any Office under the United States” and be a Senator or Representative. But Congress is a “public trust”, which matters for Article VI’s prohibition on religious tests.

    By that reading, the Emoluments Clause would apply to the President but not Congress. This seems suboptimal, but Congress is allowed to waive the Emoluments Clause anyway, and maybe they can also pass rules and/or regular laws forbidding foreign emoluments for their members. Also, Congress can’t remove its own members by impeachment. On conviction after impeachment, the Senate can bar someone from being President but not from being a Congressperson. Also the Speaker of the House is an “officer” for purposes of succession.

    Simple reading, more-or-less sane results, no Constitutional crisis… what am I missing?

    1. “By that reading, the Emoluments Clause would apply to the President but not Congress. This seems suboptimal, but Congress is allowed to waive the Emoluments Clause anyway”

      Only congress acting as a whole can waive the Emoluments Clause.

      On the other hand if the clause does not apply to members of Congress, individual members could accept gifts/emoluments from foreign governments without the approval of Congress as a whole.

      1. Right, that’s why it would be suboptimal.

        I have little confidence that the “congress isn’t an office” reading is correct. I was just trying to follow the implication of Prof Blackman’s logic that the Constitution makes a distinction between “elected position” vs “office” and “someone who holds office” vs “officer”. In that case, I think you’d conclude that the presidency is an “office” and Congress isn’t, but that specific members of Congress (eg President Pro Tempore of the Senate and Speaker of the House) are “officers”.

  18. The claim that the President is not an officer of the United States is extremely weak. First of all, consider the emolument clause. Blackman’s theory is that this clause does not apply to the President, but only the President’s inferiors. But all executive power is vested in the President, not his inferiors. A President who can be trusted to take emoluments can also be trusted to allow or disallow his inferiors to take emoluments. An interpretation that vested trust in a President to not be corrupted by emoluments but forbid his inferiors to take emoluments would only make sense if the President did not have the power to remove his inferiors.

    Furthermore, we ought to recall the general context of the Constitution. While it did increase the power of the federal government, the very same Constitution expresses skepticism of federal power, including the power exercised by the President. The Framers did not believe in an incorruptible President. For example, to avoid the possibility of foreign allegiance, a President must be a natural born citizen. And because a President is fallible and vulnerable to the temptation to abuse power, the power to declare war is vested in Congress, not the President. Likewise, there would be no need for concern about standing armies if the President, as Commander-in-Chief, was incorruptible.

    Blackman has cited the actions of George Washington to argue that the emoluments clause does not apply to Presidents. But George Washington was never personally enriched by any gifts that the government (not George Washington) received. The portrait that Blackman points out was publicly displayed, not appropriated as Washington’s personal property. The key that Blackman mentions was never auctioned off and used to enhance the value of Washington’s estate upon his death. Washington’s will does not purport to devise either the portrait or the key.

    Blackman claims that winning a public auction of land amounts to an emolument. But that is just not an emolument, since it is an exchange for equal consideration, not a gift.

    Blackman also advances a strange argument that Washington should be considered constitutionally infallible. But that wasn’t Washington’s own view. Washington was very humble on the topic of constitutional interpretation, and for this reason listened to and deferred to Hamilton, Jefferson, and Madison on constitutional issues. (And later, especially Hamilton, at the expense of Jefferson and Madison. By arguing that we should defer to Washington, Blackman is really arguing we should defer to Hamilton.)

    The belief in Washington’s constitutional infallibility was not believed by any of the Framers, including Washington himself. James Madison argued against the constitutionality of the first bank of the United States, but Washington signed the bill establishing it into law. Furthermore, Madison also argued that Washington’s neutrality proclamation and adoption of the Jay Treaty without approval of the House was unconstitutional. So, James Madison, at least, thought and publicly argued that Washington could err on constitutional issues.

    So, are we to believe that George Washington is infallible on constitutional issues, but James Madison, often referred to as the “Father of the Constitution” and who advanced much more sophisticated constitutional arguments than Washington was not???

    And what of the Alien and Sedition Acts, signed into law by John Adams? Must we accept its extreme restrictions on free speech and even imprisonment of journalists who criticized the government as constitutional? Or does this doctrine of infallibility only apply to George Washington, but not John Adams?

    In fact, the doctrine of “infallibility,” while it may be applicable to Popes under Catholic teaching, has no proper application to constitutional argument. It is not conceivable that all of the Framers were infallible on the meaning of the constitution when they disagreed with each other on its meaning. Even the two primary authors of the Federalist Papers, Madison and Hamilton, disagreed with each other.

    1st. George Washington did not accept any emoluments. 2nd. Even if he had done so, that would not establish the constitutional correctness of the behavior. Or even a presumption of constitutionality. The only time such a presumption would be appropriate is if there was unanimous agreement in society on that point. We ought to recall that it wasn’t George Washington who ratified the Constitution, but We the People.

    1. Yes.

      I’m tired of hearing, “George Washington did it, so it must be OK.”

      Says who?

      I can imagine a lot of reasons nobody made an issue of it, including that if it was brought up Congress probably would have approved it easily, so no one bothered.

      And of course the business about buying land at public auction is absurd.

      If these guys had normal jobs their bosses would be telling them to drop this BS and get back to work.

      1. Yeah, but “George Washington, Jefferson, Adams…” starts to get persuasive as the list of Presidents mounts up.

        I don’t buy the idea that the emoluments clause doesn’t apply to Presidents. It’s just that ordinary commercial transactions aren’t “emoluments”.

        They could be laundered bribes, though, if done at substantially non-market rates. But you’d have to prove that, the mere fact of the transaction wouldn’t get you anywhere.

        1. There have been reports that foreign countries have bought and paid for blocks of rooms at Trump’s hotel that they never used.

          And then there are some other interesting things going on.

          1. Having experience with large organization travel, having a company buy up a large number of rooms, many of which don’t get used, is pretty common.

            It’s most often done when you regularly have a significant but variable number of travelers in a city, so you contract with a hotel (often, multiple hotels) to hold rooms at a specific rate. This ensures two things; first, that your people have rooms available when they arrive, and second, that you don’t get raked over the coals with prices, making budgeting much easier. Instead if sometimes paying $1000 a night (or more!), you always pay $200 a night, even if the going rate for that particular night was only $100. I’d assume that foreign diplomatic missions operate similarly.

            As for the Trump hotel raising its prices when the demand increased due to a political convention….. that’s just supply and demand, and exactly why you contract for fixed prices, so you don’t get screwed when it happens. That article just sounds like the authors weren’t familiar with the idea that as demand increases without an increase in supply, prices rise.

            1. I think it’s some combination of economic ignorance, and just interpreting every last thing that happens through the filter of Trump having to be guilty of something.

              1. Whereas for you Trump is never guilty of anything.

            2. As for the Trump hotel raising its prices when the demand increased due to a political convention

              It wasn’t a convention. There wasn’t a giant crowd of people in town. It was a two-day meeting of the NRSC.

    2. Mr. Welker, very well said, I agree with you wholeheartedly. One small thing. My understanding of the debate about the Jay treaty is that Madison and Gallatin disagreed with the federalist position that since only the Senate could ratify treaties, therefore the necessary appropriations and enacting legislation must be passed by the House of Reps without discussion or disagreement. As Gallatin pointed out, that would mean the President and the Senate could couch needed appropriations as a treaty, and thus circumvent the origination clause.

    3. The claim that the President is not an officer of the United States is extremely weak. First of all, consider the emolument clause. Blackman’s theory is that this clause does not apply to the President, but only the President’s inferiors. But all executive power is vested in the President, not his inferiors. A President who can be trusted to take emoluments can also be trusted to allow or disallow his inferiors to take emoluments. An interpretation that vested trust in a President to not be corrupted by emoluments but forbid his inferiors to take emoluments would only make sense if the President did not have the power to remove his inferiors.

      I very rarely say this, but Welker is correct.

      All the clever wordplay by Prof. Blackman (most with little textual or historical support) serves to obscure the fact that most of his arguments on these topics don’t make sense. Why would the framers have wanted to prohibit the postmaster general of the U.S. (or whatever) from accepting money from a foreign government, but have been perfectly okay with the president doing so? (Purposivism cannot overcome unambiguous text, but this text is anything but.)

      Why would the framers have said that the house and senate can prevent a president that they deem corrupt from ever holding any position in the government… except that of president?

      And why would the framers have said that every single member of the legislative branch is ineligible to be in the line of succession except the two people that those people chose to temporarily lead the houses of the legislative branch?

  19. I was under the impression that the reason Pelosi held back so long on impeachment was the scenario where Trump was impeached, possibly removed, but that so enraged Trumps supporters that Democrats lose the next election and even that Trump gets elected after removal.

    IANAL but I’m pretty proud of that run on sentence. It is at least half as long as most lawyers can manage. 🙂

    1. Pretty much. I believe she was concerned about the very scenario we’re looking at now: Charges that persuade nobody who didn’t already hate Trump, meaning that voting for them could be political suicide for Democratic House members elected from districts where Trump is popular.

      And if the charges go to the Senate and are rejected on a substantially party line vote, a lot of independents take that acquittal as clearing him, and all the effort they’ve put into tearing down his reputation becomes wasted.

      1. Charges that persuade nobody who didn’t already hate Trump

        How is it possible not to hate Trump? I’m serious.

        I can understand preferring him to Clinton in 2016. I can understand hating Clinton more.

        I can’t understand how you can not hate Trump, a hopelessly dishonest, morally and ethically disgusting, individual.

    2. Pelosi held back so long on impeachment because it was politically dangerous among center and center-left voters.

      Pelosi permitted impeachment to go forward because she needs to divert attention from the DNC primary clown fiesta. Once Biden gets nominated he will be able to pretend to be a centrist to prepare for the general election.

      I’d say it’s about 50/50 whether the Democrats actually propose articles of impeachment.

      1. I’d say it’s about 50/50 whether the Democrats actually propose articles of impeachment.

        How much?

      2. “Pelosi permitted impeachment to go forward because she needs to divert attention from the DNC primary clown fiesta. Once Biden gets nominated he will be able to pretend to be a centrist to prepare for the general election.”

        I don’t think this looks to be working out very well for Biden, though, given the way it’s drawing attention to his son’s rather shady finances, and possibly implicating him more directly than that.

      3. I’d say it’s about 50/50 whether the Democrats actually propose articles of impeachment.

        You’re wrong. Assuming no new developments that radically change the picture in Trump’s favor — and it’s impossible to conceive of anything that could exculpate him at this point¹ — it’s 150/0 that the Democrats propose articles of impeachment, and 100/0 that those articles pass. (Removal is still a long shot; there are almost no Republicans with integrity.²)

        ¹As always, the exception is that Trump uses the Nixon approach to avoid impeachment.
        ²This statement should not be read as an assertion that Democrats suffer from a surfeit of integrity.

        1. “and it’s impossible to conceive of anything that could exculpate him at this point¹”

          You say that as though it were a statement about the objective situation, rather than your own personal mental problems.

          1. You say that as though it were a statement about the objective situation, rather than your own personal mental problems.

            Exactly right.

            Every single potential defense floated by Republicans has been eviscerated by the evidence; the only thing that’s left in his defense is FYTW.

            1. Every defense floated by Republicans has inevitably run into the fact that Democrats are starting from the premise that Trump is guilty, and reasoning from there. Which is why you can’t even imagine a scenario where he clears himself.

              Not being able to even imagine yourself being wrong about a contingent fact (As opposed to a logical proposition.) is not a good place to be. It means you’re so devoted to a conclusion that you’re incapable of objectively reasoning about it.

              Imagine, hypothetically, that several prominent Democrats involved in the Obama administration were corrupt to the core, and were laundering large sums out of Ukraine through their relatives. And that the administration had applied pressure to get a prosecutor trying to expose that fired.

              Would working with a new reform Ukraine government to expose this really be the stuff of impeachment?

              You don’t have to think this is true, mind. But you ought to be at least able to imagine it.

              1. The testimony is evidence – they are speaking about their past experiences. Your attempt to imply otherwise is just smoke. The GOP positions I’m seeing are going one of 2 directions.

                1: Another great win for Trump! It’s like the GOP is running this show for the express purpose of humiliating the Dems (A real thing I heard on talk radio this morning)
                2: The President has the power to use his foreign policy powers to do anything without fear of review, and this was not only a proper but a good use of his power because Biden is corrupt.

                Brett, in your hypothetical ‘working with’ is eliding a lot of issues.
                The President directly using foreign aid to pressure the Ukraine government to investigate who he wants is hinky as hell.
                Add in the real-world fact you cut out that it’s trying to get some external help in his own election and it’s even worse.

                1. “The testimony is evidence – they are speaking about their past experiences.”

                  Yes, technically when somebody gives hearsay testimony, they’re testifying about their past experience of hearing somebody say something. When somebody testifies as to how something made them feel, and their opinions about something, that’s speaking about their past experiences, too, if only internal ones.

                  But ordinarily we’re looking for evidence of relevant events, not office rumors and hurt feelings.

              2. You don’t have to think this is true, mind. But you ought to be at least able to imagine it.

                Yes, I agree that if the facts were entirely different, then the situation would be entirely different. But I didn’t say that it was impossible to imagine any hypothetical scenario in which Trump was on firm ground. I said that at this point, it’s impossible to conceive of any way to exculpate him.

                “At this point” means, “given what we actually know about what was done.”

                The only way he didn’t commit an impeachable offense is if all these witnesses are engaged in a massive conspiracy to lie him into trouble and he didn’t really do any of the things they all agree he did. (But even that doesn’t work, because Trump has already admitted the pseudo-transcript!)

                1. By, “what we actually know”, you mean, by “what the witnesses have testified about their feelings and hearsay they’ve heard”?

                  1. Some of those witnesses were first party to these conversations–actually on the phone or in the room or speaking to the President directly. The hearsay testimony aligns with the first-hand accounts. And the “feelings” they’re having are expressions of their contemporaneous concern that the President was doing something either illegal or unethical.

                  2. Brett,

                    Trump has a really simple way to exculpate himself. Really simple. Just let Giuliani, Bolton, Mulvaney, Pompeo, and maybe some others testify as the purity of his motives.

                    Let them bring emails and texts and phone records and whatnot, which will surely demonstrate that Trump had nothing but good intentions, and acted with perfect integrity in l’affaire Ukraine. Surely that would clear his name and deliver a resounding and humiliating defeat to the Democrats.

                    So easy, but he won’t do it. What possible reason could there be, other than that, far from exculpating him, all that testimony, all those documents – first-hand stuff – would only make his situation worse?

                    Suspect: “No matter what anyone says, I didn’t rob the bank, because I was in Chicago when it happened.”

                    Detective: “Do you have airline or hotel bills to prove that?”

                    Suspect: “Yes, but I’m not going to produce them.”

                    Detective: “Did you meet with anyone there who could testify that they saw you?”

                    Suspect: “Yes, but I’m not going to identify them, because I don’t want them to testify.”

  20. I cringe when I hear arguments based on statements like “careful textual distinctions the Framers drew”. The Constitution was written and ratified by a group of people with a lot of arguments and compromises. While more precisely written than a lot of legislation trying to do things like distinguish when the President is an “officer” and when he is not is really straining.

  21. If I read your taxonomy correctly the Constitution would not prevent the President from serving concurrently in the House or Senate (I’m also not sure what would prevent a person from serving in both but let’s put that aside).

    I think the issue is analogizing “under the United States” with “under the Crown” and treating the President and Vice President as merely elected officials. To the extent the Crown refers to the monarch, or Head of State, that is not synonymous with the country. And I think that is how it needs to be read unless you think the Queen is considered not the Crown and indeed under the Crown. The issue is you fail to consider the very different structure of their government/parliament to our own. They don’t really have executive and legislative branches per se. So we can’t just say elected officials, who are all legislators there though may also have executive duties if given by the party they represent, applies across the board. An elected Head of State was a foreign concept so it doesn’t stand there is a clear analog.

    Further maybe I’m missing the step where you show where “Officer” standing alone includes the Speaker and President Pro Temp. By your interpretation elected people are only covered under the “Office or public Trust under the United States”. But you also so they don’t hold an “office under the United States” meaning they must hold a “public trust under the United States.” Where do you get the jump that holding a Public Trust under the United States makes one an “officer”?

  22. As a practical matter, Pelosi wouldn’t become President, in the unlikely event that Pence and Trump were impeached. Here’s why.

    1) The Senate impeaches Trump.
    2) Pence is now VP.
    3) Pence now appoints a new VP. That passes in the GOP controlled Senate.
    4) Pence impeached.
    5) New VP now president.

    In order for Pelosi to become president, you would need a simultaneous impeachment of Pence and Trump, or a Senate who was unwilling to appoint a VP…any VP.

    1. Or impeaching Trump and a conveniently timed assassination, of course.

      1. Second Amendment solutions tend to be advocated by the right.

        1. And carried out by the left.

          What’s your point?

          1. My point is that Brett is a paranoid conspiracy theorist.

            1. No, I’m just a conspiracy theorist, not paranoid. Conspiracies really do happen, you know. They’re practically the elementary particle of political science.

              Look, of 44 Presidents, 17 have suffered assassination attempts, (Including basically every modern President; The exceptions were a long time ago.) and four were successfully killed.

              Contrast that with only 3 attempted impeachments, and none resulting in convictions.

              So, you’re proposing that both the President and VP being impeached and removed in quick succession is plausible, but one of them being assassinated instead is madness, and you’re questioning MY relation to reality?

              1. Conspiracies really do happen,

                Yeah, but not everything you dislike is the result of some deep conspiracy against all that is good and true.

                The trouble with your defense is that you speak of a “well-timed” assassination.

                That, to me, suggests you think that the Democrats, or some other liberal group, might conspire to assassinate Pence in precisely the right window, so as to elevate Pelosi.

                That’s what’s paranoid. That assassination attempts occur with some frequency does not mean that they are the result of careful conspiracies by the President’s political opponents. In fact, they have generally been lunatic, poorly planned, acts by not totally sane individuals.

                So your claim is bogus, and your suggestion of a “well-timed assassination” is paranoid BS.

                1. “That, to me, suggests you think that the Democrats, or some other liberal group, might conspire to assassinate Pence in precisely the right window, so as to elevate Pelosi.”

                  Yes, in much the way a Bernie bro attempted to give the Democrats a majority in the House by opening fire on the Republican caucus while they were practicing for a baseball game. Was he assigned the job by some shadowy group in the DNC? No, he just saw an opportunity to, he thought, advance his party’s interests, and acted on it.

                  What I’m suggesting is that one or two Democrats might look at offing Pence immediately after Trump being removed as a perfect opportunity to put Pelosi in the White House, without it requiring any involvement from a larger group of people.

                  1. Anybody might do anything, Brett. We’ve had comments here hoping for Ginsburg to die soon. I suppose I could say there might be a “well-timed assassination” of her, or a different liberal Justice, before the next election, which is about as likely as one of Pence, which is to say – wildly unlikely.

                    Hodgkinson was clearly an irrational individual. Sure, he had volunteered for the Sanders campaign. That hardly makes him a Democratic operative.

                    Finally, for all your comments about the Scalise shooting, you never seem very concerned, or concerned at all, about violence – actually fatal violence – perpetrated by right-wingers. You defended James Alex Fields on the ridiculous grounds that he was just trying to get out of the crowd, to take just one example. So spare me your outrage about violence.

    2. Double check the process for appointing a new VP. (Hint: The House has a role.)

  23. I just looked at the article, and I find: “the Senate, even if it removes and disqualifies Trump, could not prevent him from being elected to a second term as president.”

    Yes, you could call that counterintuitive. Assume a President is impeached and convicted for some truly awful offense. Wouldn’t the Senate have the remedy available in the case of federal judges and cabinet officials – keeping them from taking federal office in the future?

    I can think of at least three cases where the Senate, after convicting a federal judge, prevented him from holding federal office in the future. One case involved actual treason (as adhering to the Confederacy was considered at the time), one involved fairly blatant bribery, and a recent one involved a fairly long and sordid history of corruption.

    Are we to say that these corrupt judges could have been elected to the Presidency?

    1. That is the theory. If we step back from the ultrafine parsing that engenders it, the effect is that the voters have the final say in who they want to elect, and that isn’t an absurd result by any means. If, knowing the situation, the voters choose an expelled federal judge to hold elected office, who is the Senate to deny them?

      1. The relevant language says

        “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” etc.

        On the naive and literal level, it seems to say that the Senate can remove a President from Office and bar him from holding federal Office in the future.

        If such naive literalism doesn’t do it, then consider the practical ramifications – the lessons of our sister Latin republics. A crooked demagogue could be kicked out office by a 2/3 vote, and shouldn’t be able to get back into office no matter how much the misguided people may want it. Like passing unconstitutional laws, there should be some things beyond the power of mere majorities to do.

        1. “Like passing unconstitutional laws, there should be some things beyond the power of mere majorities to do.”
          The Constitution defends individual rights against the depredations of the majority, so everyone has their guaranteed freedoms and privileges no matter how popular it may be to target whatever group they belong to. But you aren’t talking about protecting a minority from the majority, you are suggesting creating an oligarchy to control the majority with the ostensible excuse of protecting them from themselves. As Churchill said (famously but perhaps not originally) democracy is the worst form of government, except for all the others.

        2. I have to say that I read that as 2 separate punishments.
          One greater and one lessor.
          He could be removed from office.
          He could be removed from office AND be barred from future office.

  24. As to the eligibility of the Speaker – in 1792, Congress put the president pro tempore of the Senate next in line after the VP. After the pres pro tempore was the Speaker of the House.

    https://en.wikisource.org/wiki/United_States_Statutes_at_Large/Volume_1/2nd_Congress/1st_Session/Chapter_8

    (see Section 9)

    Just because Congress did something in 1792 doesn’t make it constitutional, but it does establish at least some presumption of constitutionality back when the Constitution was fresh and the legislators were self-consciously setting precedents and discussing the issues – rather than making stuff up and letting the courts sort it out as became the fashion later.

  25. The President of the United States and Speaker are both Offices mentioned in the Constitution, so she can succeed to the Presidency (same goes for the President Pro Tempore–and possibly the Chief Justice.) It would probably be unconstitutional to put any other legislators or justices in the line of succession, but you might be able to put people like the Solicitor General in the line of succession.

  26. Let’s have a civil war. It would be so much fun. All laws could be ignored and we could go and kill everyone who disagrees with us. The laws mean only what we say they mean. The constitution is a living document and its terms must be reinterpreted at every microsecond. So if the House impeaches Trump and the Dems have a 50+1 to 50 majority in the Senate, they only need over 50% to remove a president because 2/3rds majority, using new math, equals 50+1 votes.

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