New Evidence and Arguments About the Scope of the Impeachment Disqualification Clause: A Response to the House of Representatives' Managers' Trial Memorandum

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[This post was co-authored by Josh Blackman and Seth Barrett Tillman]

On Thursday, February 4, 2021, we discussed the First Amendment arguments in the House of Representatives' Managers' trial memorandum. This post will consider the trial memorandum's arguments concerning the scope of the Impeachment Disqualification Clause. U.S. Const. Article I, Section 7, Clause 3. The clause states: "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."

I. Tillman and Blackman's position on the scope of the Impeachment Disqualification Clause.

For more than a decade, Tillman has written that the phrase "Office . . . under the United States" reaches only appointed federal positions. In 2014, well before President Trump announced that he would run for the presidency, Tillman published a full-length article opining on the scope of the Impeachment Disqualification Clause, which uses the phrase "Office . . . under the United States." And for the past four years, we have filed multiple amicus briefs and published several articles contending that the phrase "Office . . . under the United States" does not apply to the presidency, an elected federal official. In 2017, we addressed a frequently asked question about our taxonomy:

Under the [impeachment] disqualification clause, can Congress prospectively bar an impeached officer from being elected to Congress or to the presidency?

. . . [The Impeachment Disqualification Clause] grants Congress the power to prevent a convicted party from being appointed to a federal position, but does nothing to prevent a convicted party from being elected to the House, Senate or the presidency.

Congress has disqualified only three impeached officers (all federal judges) from holding future office, and none have subsequently run for elected federal positions. As a result, we have no substantial law here and little commentary. . . .

We also think that our position is the one that is normatively sound. The impeachment process is a political process that allows Congress to cleanse the government between elections: when there is no time to wait for an appeal to the people. But the impeachment process is a political process. The people doing the impeaching may not only be wrong, but they also might be the wrongdoers. Our position in regard to the scope of disqualification allows the voters, not Congress, to have the last word. If the voters return a disqualified defendant to elective office it is because where in doubt, it is the voters, not their agents in Congress, who should have the last word.

If the Senate votes to convict President Trump, a subsequent vote will be held on disqualification. If the Senate follows past practice in regard to voting on disqualification, it will vote on whether Donald J. Trump will be disqualified from "hold[ing] and enjoy[ing] any Office of honor, Trust or Profit under the United States." That vote will be an up-or-down vote: yay or nay. Although a Senate conviction requires a 2/3 vote, by tradition, the motion to disqualify carries with a simple majority. In our January 20 post, we explained:

Right now, the Senate is not squarely faced with the question of whether a Section 3 disqualification against President Trump would bar him from running for the presidency in the future. Similarly, even if the Senate convicts President Trump in ongoing impeachment proceedings, and votes to disqualify him under the Impeachment Disqualification Clause, it is not the Senate which will finally resolve the scope of that disqualification. To be sure, members of Congress can state on the record that they are barring Trump from ever serving again as President. But those statements are not dispositive of the constitutional issue. Rather, if Trump decides to seek re-election at some future date, state and territorial boards of election would have to decide if Senate disqualification under the Impeachment Disqualification Clause, or, perhaps, a Senate vote to disqualify him under Section 3 [of the Fourteenth Amendment], would bar Trump from the ballot. Alternatively, boards of election would have to determine the effect (if any) should Congress pass a Section 3 concurrent or joint resolution against President Trump's holding an "office . . . under the United States." In each of these situations, as a general matter, the determinations of boards of election could be appealed to the courts. In all likelihood, it is not Congress, but the courts which would have the final say in regard to resolving the scope of congressional or Senate disqualification. (emphasis added).

The Senate may choose to impose disqualification. But, as a general matter, subsequent boards of election and independent courts will determine the scope of a Senate disqualification. This fact will remain true even if a Senate disqualification should expressly purport to bar the defendant from holding the presidency. Moreover, such a declaration would break with tradition. We are not aware of any prior Senate that specifically disqualified a convicted person from holding a specific position. Given the Senate's few historical precedents with respect to disqualification, we were surprised that the House of Representatives' Managers' trial memorandum even addressed the scope of disqualification. Albeit, the memorandum devoted only a single footnote to this question. 

The Managers' trial memorandum, at footnote 275, provides:

President Trump may separately contend that the Constitution does not permit a person to be disqualified from seeking the Presidency. But as the DOJ Office of Legal Counsel concluded under President Obama, "The President surely 'hold[s] an[] Office of Profit or Trust.'" See David J. Barron, Applicability of the Emoluments Clause and the Foreign Gifts and Decorations Act to the President's Receipt of the Nobel Peace Prize, 33 Op. O.L.C. 1, 4 (2009). Indeed, this is the only conclusion consistent with the text of the Constitution, which repeatedly refers to the President as holding an "Office"—including in the Natural Born Citizen Clause, the Presidential Oath Clause, and the Twelfth, Twenty-Second, and Twenty-Fifth Amendments. See Saikrishna Prakash, Why the Incompatibility Clause Applies to the Office of the President, 4 Duke J. Const. L. & Pub. Pol'y Sidebar 143 (2009).

This footnote is perplexing for several reasons. First, the footnote addresses disqualification, which the Senate may choose to impose. However, it is not the Senate that is likely to finally resolve the scope of disqualification. 

Second, this footnote appears in a section of the brief that has nothing to do with disqualification. It is lodged at the end of a paragraph arguing that Chief Justice Roberts need not preside over this trial. 

Third, the footnote states that its conclusion is the "only" conclusion that is "consistent with the text of the Constitution." We disagree. There is substantial historical evidence that is inconsistent with the Managers' conclusion. And the footnote does not address any of this historical evidence. Instead, the memorandum relies on a twenty-first century OLC opinion. It stated that the President was "surely" subject to the Foreign Emolument Clause. This provision applies to those who hold "office . . . under" the United States. The Impeachment Disqualification Clause uses language that is nearly identical. In prior writings, we have explained that this observation in the OLC opinion was conclusory. It cites no judicial precedent or any ratification-era sources, or even any pre-Andrew Jackson sources. Indeed, the Congressional Research Service has distanced itself from OLC's position.

II. Founding Era and Federalist Era Historical evidence supports our reading concerning the scope of the Impeachment Disqualification Clause.

Our position concerning the scope of the Impeachment Disqualification Clause is not novel. We are not the first commentators to argue that this provision and its "Office . . . under the United States"-language does not extend to elected federal officials, including the presidency. 

We have already elsewhere and repeatedly developed substantial evidence involving: [i] Secretary of the Treasury Alexander Hamilton's 1793 financial statement, prepared in response to a Senate order, which was itself issued under statutory authority; [ii] President Washington's accepting and keeping presents from foreign governments, absent congressional consent; [iii] the first Congress' statutory drafting conventions; [iv] as well as early scholarship. For those who are interested in going over that old ground, see this publication. After roughly four years of Emoluments Clauses litigation, none of this evidence has been rebutted. Here we put forward some substantial new evidence. This evidence has not been well-developed in the modern academic literature on the Impeachment Disqualification Clause.

We start with Alexander Hamilton. In Federalist No. 77, Hamilton described the consequences of impeachment and disqualification: "[T]he President [is] at all times liable to impeachment, trial, dismission from office, incapacity to serve in any other . . . ." This sentence refers to two types of positions: the President's "office" and "any other office." We think the better reading of Hamilton's statement is that he was referring to an office "other" than the presidency.

Our position was also expressed during the 1799 Senate impeachment trial proceedings of Senator William Blount. He was the first officeholder impeached under the Constitution. During the Senate trial, both Blount's counsel and a House Manager articulated their views about the scope of the Impeachment Disqualification Clause. The views they articulated are consistent with the view we have advanced. 

Blount was represented by Alexander J. Dallas. Dallas is well known in today's legal community for serving as the first Reporter of Decisions of the United States Supreme Court. He also held cabinet positions and high state office in Pennsylvania. Dallas explained that the Impeachment Disqualification Clause serves as "in effect, [as] a check or limitation to the general power of the Executive." How? The Senate, by voting to disqualify an officeholder, "declar[es] that the delinquent officer, shall be removed, and that he shall never be re-appointed." Dallas's understanding of the Impeachment Disqualification Clause's design was limited: the Senate had the power to restrict the "attributes and exercises of Executive Authority" that includes the power "to appoint, to re-appoint, or to abstain from re-appointing." 

Later in the trial, Dallas reaffirmed his position. He said, "it is manifest, that by the power of [i]mpeachment, the people did not mean to guard against themselves, but against their agents; they did not mean to exclude themselves from the right of re-appointing, or pardoning; but to restrain the Executive Magistrate from doing either, with respect to officers, whose offices were held independent of popular choice." Here too, Dallas's position directly supports the view we have advanced. The Impeachment Disqualification Clause was not designed to serve as a "guard against" the People who use "popular choice" to elect federal officials. Rather, this provision would serve to "guard against" the President's undermining a House impeachment and Senate removal. Consider a situation where a defendant is impeached, tried, convicted, removed, and disqualified. Then, the President re-appoints that person to another appointed position, or even to the same position he previously held. This reappointment would undermine the House's and Senate's power in the impeachment context. In other words, the Impeachment Disqualification Clause prevents the President from re-appointing the disqualified defendant to an office "held independent of popular choice." 

Dallas stated this position yet again. Here, Dallas contrasted the House's power to expel its own members with the Congress' powers to impeach, remove, and disqualify. First, "In the case of expulsion the Member is sent to the people, but if they choose to return him again, he has a perfect title to his seat." Here, the elected official who is subject to expulsion can be re-elected by the People. The voters may decide that the expulsion was in error. Or the voters could decide that the expulsion should not serve as a permanent bar against another term in Congress. Second, "In the case of an Impeachment, the delinquent officer is dismissed; [nevertheless] on the general power of the Executive he might be re-appointed; but to guard against the abuse of that [appointment] power, the Constitution superadds a sentence of perpetual disqualification." That sentence is the Impeachment Disqualification Clause. In the absence of the Impeachment Disqualification Clause, the President could re-appoint an impeached officer. But this provision "guard[s] against the abuse of that power." Again, Dallas's argument supports the view we have advanced:  Senate disqualification does not extend to elected positions.

You may think that Dallas's views should be discounted because he was defending Blount. After all, wouldn't he adopt the most narrow scope of the Impeachment Disqualification Clause? But Dallas was not alone. Rep. Goodloe Harper, a House Manager, also articulated this position. He explained that the "punishment" from the impeachment process "can go no further than removal and disqualification." Harper said the latter "Restriction was, perhaps wisely, introduced in order to prevent those abuses of the power of Impeachment which had taken place in another country." Here, Harper was referring to well known precedents from the history of English impeachments. For example, Thomas Osborne held various English (and Scottish) offices and titles, such as the Earl of Danby and Duke of Leeds. In 1678, Parliament impeached Osborne. The following year, the king pardoned him. Nevertheless, Osborne was subsequently appointed by the monarch to high office: the Lord Presidency. (Coincidentally, in 1695, Osborne was impeached yet again! For trivia buffs, Trump was not the first officeholder to be impeached twice.) If England had an Impeachment Disqualification Clause, then the crown could not have subsequently appointed him to any post. There were other episodes from the history of English impeachments that present similar fact patterns. For example, the 1621 impeachment and conviction of Lord Chancellor Francis Bacon. We think House manager Harper, much like Dallas, understood that the Impeachment Disqualification Clause was designed to ensure that fact patterns like the Thomas Osborne episode could not occur in our country. The Senate could try, convict, remove, and disqualify an officeholder. If a defendant is disqualified, the President could not appoint or re-appoint the defendant to a federal position. 

Harper's concern could be expressed in a different fashion. What would happen if the President was able to immediately re-appoint a disqualified officer to the same position he had previously held? This power would amount to a functional pardon. And the President's formal pardon power does not reach the "Case of Impeachment." Granted, this re-appointment would not be a technical pardon. But we think the general public would perceive re-appointment as something like a pardon. Indeed, the President can appoint "inferior" officers of the United States without Senate confirmation. Much the same could be said about recess appointments. With these positions, the President's Article II power to appoint entirely bypasses the Senate.

Harper's position was based on English impeachment history. And he explained that the Impeachment Disqualification Clause was designed to bar disqualified defendants from subsequently holding appointed federal positions. But this constitutional provision would play no role where the disqualified officeholder stood for election. Let the People decide. 

III. Historical evidence from the Age of Jackson supports our reading concerning the scope of the Impeachment Disqualification Clause.

The views articulated by Dallas and Harper were repeated in antebellum scholarly commentary. First, consider the views of William Alexander Duer, who wrote about the Impeachment Disqualification Clause in his Outlines of the Constitutional Jurisprudence of the United States (1833). Upon conviction, Judge Duer explained, "an appointment made by the Executive authority is superseded." In other words, the officeholder is automatically removed. And, upon disqualification, "the party is rendered incapable of re-appointment to any office; the President is disabled from granting a pardon, and thus restoring the competency of the offender." Here, Duer echoes Dallas's and Harper's pardon-focused reading of the Impeachment Disqualification Clause. That provision bars the President from re-appointing disqualified officers. Such a power, Duer thought, would amount to a functional pardon.

Second, Nathaniel Chipman expressed a similar view in his Principles of Government: a treatise on free institutions, including the Constitution of the United States (1833). He characterized "disqualification" as a limitation on "future appointments." 

Both Duer and Chipman had highly distinguished careers. Duer, for example, was a New York state judge and, later, the President of Columbia University. Chipman served as Chief Justice of Vermont, Vermont's federal district court judge, a state legislator, and a U.S. Senator. These commentators and their treatises are not obscure. Justice Scalia cited Duer's Outlines in District of Columbia v. Heller (2008) alongside a citation to Blackstone's Commentaries. Chipman's Principles was cited in Yale Law Journal as recently as 2017. 

IV. Post Civil War Historical evidence supports our reading concerning the scope of the Impeachment Disqualification Clause.

The position we support did not disappear after the Civil War. It continued to be advocated in post-bellum materials. For example, in his Commentaries on the Constitution of the United States (1895), Roger Foster, a lecturer at Yale Law School, quoted Alexander Dallas's discussion from Blount's 1799 Senate Trial. 

In 1876, the Senate held the impeachment trial of Secretary of War William W. Belknap. His defense counsel was Matthew H. Carpenter, a former U.S. Senator and former Senate president pro tempore. Carpenter argued that the Impeachment Disqualification Clause was designed to prevent the President from re-instating disqualified officers.

"The [impeachment] disqualification clause of punishment was evidently put in for the purpose of making the power of removal by impeachment effectual. After providing that the officers of the United States might be removed on impeachment, although the President could not pardon the offender convicted and removed, yet if he could re-instate him the next morning he would have substantially the power of pardon. To prevent this was the object of the disqualifying clause, which Story says is not a necessary part of the judgment. You might impose it where you had removed an officer appointed by the President whom the President could re-instate. You could stop that by fixing disability upon the officer, and that I take to have been the sole purpose of this clause. (emphasis added).

Here, Carpenter stated the same view that Dallas and Harper had expressed seven decades earlier. Moreover, Dallas's, Harper's, and Carpenter's views were quoted in authoritative sources on congressional precedent, including Asher C. Hinds, Hinds' Precedents of the House of Representatives (1907). 

In 1871, Nebraska held an impeachment trial for Governor Butler. Experience Estabrook, counsel for the managers, quoted Harper's position on the Impeachment Disqualification Clause. Estabrook's quoting Harper indicates that the Blount trial transcript was freely available in a frontier state that had only joined the Union four years prior. Estabrook had a long and varied, legal and political career, in both federal and state positions, elected and appointed. For example, prior to the Butler trial, Estabrook had already served as Attorney General for Wisconsin and as Attorney General for the territory of Nebraska. 

Finally, Dallas's, Harper's, and Carpenter's statements on these issues have been repeatedly cited in the records of House Impeachment proceedings, including those involving President Nixon and President Trumpthat is, Trump's first impeachment. The fact that the House cited these records suggests that they are representative and trustworthy sources regarding the Constitution's meaning. 

Again, these sources suggest that the purpose of disqualification, in connection with impeachment proceedings, was about barring a disqualified defendant from holding appointed, not elected, positions. 

V. Modern scholarship supports the view that a disqualified defendant can hold a House or Senate seat.

Many scholars have argued that members of Congress, who hold elected positions, do not hold an "office . . . under the United States." Thus, in their view, if President Trump is tried, convicted, and disqualified, he could still run for and hold a seat in Congress.

  • Josh Chafetz, Impeachment and Assassination, 95 Minn. L. Rev. 347, 351 n.23 (2010) ("An impeached, convicted, and disqualified officeholder can still hold state office. . . . Indeed, an impeached, convicted, and disqualified officeholder can be elected to Congress.").
  • Akhil Reed Amar & Vikram David Amar, Is the Presidential Succession Law Constitutional?, 48 Stan. L. Rev. 113, 115 n.14 (1995) ("By parity of logic with the Impeachment Clause as expounded in the Blount affair, a convicted executive or judicial 'Officer' could be barred from executive or judicial 'Office,' but remain eligible for a congressional seat since, by definition, it is a nonOfficer position.")/.
  • Benjamin Cassady, "You've Got Your Crook, I've Got Mine": Why the Disqualification Clause Doesn't (Always) Disqualify, 32 Quinnipiac L. Rev. 209, 278 (2014) ("History, too, supports the conclusion that legislators do not hold offices of honor, trust, or profit. Instead, an 'Office of honor, Trust or Profit' likely refers only to a position of employment in the executive and judicial branches." (emphasis added)).

Our view, which would allow disqualified defendants to hold congressional positions, is supported by the materials described above. Moreover, just as a disqualified defendant is not barred from holding a seat in Congress, our view is that a disqualified defendant is also not barred from holding the presidency or vice presidency—that is, elected federal positions. 

Here and elsewhere, we have put substantial evidence forward in support of our view. We do not doubt that some counter-authority may exist—out there, somewhere. If there is good counter-authority, from the Philadelphia Convention, from the ratification period, from the antebellum era, or from the post-Civil War era, then, we warmly encourage the proponents of that view to put that evidence forward in a timely transparent manner. And that evidence should be put forward now, before Senators have to take a vote on whether to convict, and potentially disqualify. 

***

Assuming the legality of late impeachment in the current circumstances, House managers may be able to seek a conviction for its expressive function, and they can seek disqualification as a bar against Trump's holding appointed federal positions in the future. The scope of Senate disqualification is a different issue. We have put forward our position over the course of more than a decade: the better view is that the Senate cannot bar Trump from running for and holding elected federal positions. Let the People decide. 

[Seth Barrett Tillman is a Lecturer at Maynooth University Department of Law, Ireland (Roinn Dlí Ollscoil Mhá Nuad).]

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  1. It’s never going to end, is it?

    1. Until Blackman gets the judicial appointment he so desperately desires, no.

      1. Is Blackman one of the authors at this blog who does magic mushrooms, or was that another writer here? Those who use legal marijuana are not to pass Federal background check. What about those using mushrooms? Just asking for a friend.

    2. A telethon should be held for logorrhea, a heartbreaking condition with no cure so far.

      Maybe CRISPR holds promise. The Chinese Communist Party should put it on its genetic modification agenda.

    3. Fascinating that constitutional law scholar Josh Blackman has sold his soul to Donald Trump, a man who knows no law other than that of his own appetite.

    4. It’s amusing to me the amount of whinging about their position that comes forth here.

      Without having a single even remotely valid counter argument to offer.

      Pathetic

  2. Many words are written here to argue that the plain textual reading of the Constitution is wrong.

    “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.”

    Alternative reading based on what the text says: It says “all”, and thus must be read to mean “all”.

    1. It doesn’t say “elected.”

      And do not forget that Congressman Alcee Hastings is a Federal Judge who was impeached and convicted.

      1. Hastings was not disqualified by the Senate after conviction. And yes, it does not say “elected”, nor does it say “appointed”, it just says “all”, which would cover both.

      2. The Senate did not vote to disqualify Hastings so his case provides no evidence in either direction.

        1. I’m aware of that. I find it interesting that they didn’t — and in a body where precedent and tradition matters, it is relevant.

          1. When discussing the consequences of being disqualified as a punishment:

            No, it is not.

      3. Ed, you’ve gotten corrected for this the last half dozen times you posted it.

        What’s wrong with you?

        1. The modern conservative guiding principle of any line of argument put forward seems to be ‘don’t retreat, reload!’ Add ‘don’t re-think, repeat’ from the Trump years.

        2. I wasn’t wrong.

    2. No the plain meaning is that the person must still be in office.

      AND means AND.

      1. Remedial education in English is something you should look into.

        1. I’ve taught remedial English.
          “And” is a conjunction linking the dependent clause that follows.

          1. “Shall not extend further than” sets a limit, not a requirement.

            “Punishment shall not extend further than a six-month suspension of the defendant’s driver’s license and $1000 fine,” doesn’t mean you have to do both.

            And it certainly doesn’t mean that you can’t still fine a defendant who doesn’t have a license, just because there is no license to suspend.

          2. JFC. When Patrick Henry means “AND means AND” he is saying that “and” is acting as a coordinating conjunction that means both A and B but not A or B. (He is still wrong, but whatever.) He is not talking about a subordinating conjunction separating independent and dependent clauses. “And” is not a subordinating conjunction.

    3. Unfortunately, the question is “What exactly is an office of honor, Trust or Profit under the United States”.

      The phrase is used a few times in the US Constitution.

      1. “no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office”

      2. 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

      3. Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

      So, if you read it, it’s pretty clear that a Senator or Representative is NOT a Office of honor, Trust or Profit under the United States. The categories are separate, and more importantly, it says such an office holder cannot be a Senator or Representative.

      The Presidency is a different question. But, as it is an elected official, like Congresspeople….

    4. Where are you seeing the word “all”?

      It says “any Office of honor, Trust or Profit under the United States”.

      The Presidency, nor other elected offices, aren’t one of those three (honor, trust, profit), they had specific meanings at the time the constitution was written, they aren’t just superfluous text.

      In 230 years, no one has ever been stopped by impeachment from running for elected office. That’s because the Senate doesn’t have the power to prevent the people from electing who they want to elect.

    5. Amendment 14, Section 3:
      “No Person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, …”

      If elected positions were part of “any office, civil or military, under the United States”, then they wouldn’t have had to mention they couldn’t run for Congress

      They did

      Because elected positions are not “offices under the US”.

      Your “argument” makes as much sense as someone demanding it get the “all vegetables” sale discount on an orange, and whinging “but you said all!”

  3. If Trump is impeached, Democrats should put their sneakers on.

    1. Trump HAS been impeached. Twice, in fact. Is it possible that you mean ‘convicted?’ (ie, in the Senate)

      1. Trump HAS been impeached. Twice, in fact. Is it possible that you mean ‘convicted?’ (ie, in the Senate)

        Yeah, I admit it’s confusing for people who actually expect a grave-sounding word like “impeached” to mean something other than “was on the wrong end of a thin-majority Congressional temper tantrum.”

        1. You must have missed the part where 10 Republicans also voted to impeach him.

          It must be confusing for people like you who can’t look at anything without a partisan viewpoint. Sucks to be you.

          1. It must be confusing for people like you who can’t look at anything without a partisan viewpoint.

            This, from the person who apparently was determined to read something partisan into the words “thin majority.”

            Feel free someday to start thinking before you post.

            1. Your posting history has made it abundantly clear that you are nothing but partisan in your viewpoints and half-baked arguments.

              By all means though, pretend that you weren’t referencing the slim majority position the Democrats hold in the current House. Let’s all see how flexible and clever you think you are.

              1. Hee hee — “I’m not looking at life through a partisan lens — I’m just looking past the non-partisan words you actually used because I know you must have meant something partisan, because salamanders or something!” First rule of holes, bro.

                Let’s all see how flexible and clever you think you are.

                Indeed. Without projection you’d have not much to say.

    2. “If you say my friend can’t come over because they took a shit on the living room floor then I’m going to say your friend can’t come over the next time they don’t use a coaster!”

  4. The Constitution specifies the qualifications for President in Article II, section 1: No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty five years, and been fourteen Years a resident within the United States.

    Doesn’t say anything about Congress deciding…

    1. The Constitution also has the impeachment and disqualification clause.

      1. But clearly didn’t apply to the President or Vice President, since the qualifications for those positions are specified.

        1. You expected them to include the words “and not disqualified from impeachment”?

          No. All of these arguments are the same thing: Trying to infer an immunity from trial for former presidents after a valid impeachment and and making the quantification clause meaningless by reading between the lines. Taking the plain reading of the constitution leads to neither.

          1. Plain meaning?
            Like “a well-regulated militia”?
            Like “shall make no law respecting”?
            Like “interstate commerce”?
            That sort of obvious and uncontroversial language?

  5. “removal and disqualification” [emphasis added.

    I would argue that the “disqualification…” is a dependent clause and hence can only apply if the person is first removed from office.

    If the person can’t be removed from office, then the “and” doesn’t apply…

    1. Bingo.

      Why would the disqualify from office but not remove? Makes no sense.

      1. Well you can’t remove someone from office who is no longer in office.

    2. It’s interesting you don’t put forward evidence for what you base that on, because ‘and’ doesn’t obviously and necessarily = that the second part of a ‘X and Y’ is a ‘dependent clause’ does it?

    3. I would argue

      That’s Dr. Ed’s second tell. (His first is “Remember that…”) Any time he says, “I would argue,” it means “I don’t know what I’m talking about.”

      In this case, grammar.

      1. I have a valid license, I doubt you do.

        1. A license to… ill?

          I mean, I criticize Dr. Ed’s grammar, and he tries to rebut this by bragging about a license? Do they have grammar licenses?

          1. I believe that they were issued with the checks signed personally by GWB Ed claims to have received.

    4. You’re wrong and in a way that suggests you don’t know what a dependent clause is. But set that aside, we know “disqualification…” is not a dependent clause because:

      1. There is a comma before “and”. When the dependent clause follows the independent clause, there’s no comma.

      2. “and” is not a subordinating conjunction.

  6. But, as a general matter, subsequent boards of election and independent courts will determine the scope of a Senate disqualification.

    Nope. House and Senate have sole powers. That means no one else gets to review. A board of election somewhere can’t say to the Senate, “When you said Trump was disqualified from the presidency, you had to run that by us first.” Same with the courts.

    Impeachments are sovereign powers, as much the decrees of the People as elections are. Both are exercises of the Sovereign’s constitutive power. That is why impeachments are classed as political, instead of judicial.

    1. See my post below. Peeps don’t vote for the prez, they vote for guys who get on the EC and the EC elects the prez.

      Point is congress says which EC guys get to vote for the prez.

    2. I don’t know, but I’d think the courts would have say as to whether or not Congress applied the constitution correctly. I mean, this situation is extremely unique.

      Once congress has punished, assuming the process was consistent with the constitution, then yeah I don’t know how the courts could change it.

    3. Nope. House and senate have sole powers that the constitution gives them and no more. In City of Boerne the Supreme Court said that Congress doesn’t get an opinion on what the constitution means. Just so here. Upon impeachment and conviction the senate has the sole, unreviewable power to disqualify the person from “any office of profit, honor, or trust under the united states”. It does not have the power to decide what those offices are. Any statement by the senate that the person is disqualified from the presidency is ultra vires and a nullity. The various boards of election will decide that in the first instance, and after them the courts.

      1. Millhouse, was City of Boerne about a “sole power,” explicitly delegated in the constitution? No? What makes you think that decision about ordinary legislation is relevant to a constitutionally delegated sole power, with a super-majority requirement?

        More generally, do you think the courts get to constrain the sovereign People? Impeachments are not powers of government. Like elections, impeachments are sovereign exercises of the constitutive power. That power belongs only to the sovereign, unless specifically delegated by the sovereign, as it has been to the House and Senate. No such delegation has been made to the courts or to the administration.

        If an impeachment could properly be appealed to a court, it would be a judicial process. It is not that, it is political, because it belongs only to the political branches to which it was delegated.

    4. Regardless, Trump can still run — by write-in if necessary, and you will have a true Constitutional crisis should he win.

    5. Sole power means nobody else can do it, not that you can do anything you want.

      Don’t confuse “sole” and “plenary”. If the House impeaches somebody, and the Senate tries and convicts them, the judiciary are still allowed to notice that there was some deficiency in how they went about it. Failure to achieve a 2/3 vote to convict, say, or the person being impeached not holding any office subject to impeachment.

  7. First off congress gets to say if the guys in the EC are legit or not. Trump wanted some guys who liked him seated instead of the guys in the EC that favored Biden and congress got to say which ones it paid attention to. So it really does not matter what courts or local boards say congress says who the EC guys are.

    I am still concerned about CJ Roberts not presiding and a dem who has a dog in the hunt presiding. The clear wording of the Constitution is that the CJ presides over a trial in the Senate. It is still not clear to me why Roberts is not presiding. Did he decline (and is he even allowed to decline) or did the Senate simply not invite him? What happens if a CJ declines to preside? Can the Senate create a rule saying the CJ can eat dirt and the president pro tempore of the Senate is presiding? Not sure if there is any law against anyone being judge and jury but there certainly seems to be a common law bias against it.

    While I agree impeachment is more a political than legal exercise at some point the legal niceties do come into play.

    1. I also was incredibly disappointed by the decision of Roberts to not preside. (My understanding is that Roberts announced this early on, and so the Senate–having heard Roberts clearly state that he had no intention of participating–did not even issue an invitation…let alone trying to force him.)

      What is sort of funny about a Dem taking over the role is that it affirmatively hurts the chance of conviction (at least, in theory). Remember that if Roberts were to preside, he could make rulings about what evidence (witnesses, etc) can be presented. That’s common for judges to do in any trial, of course. BUT, here, the Senate can overrule any ruling Roberts were to make. By a simple majority. Which they have, including the VP. However, now, with a Dem Senator presiding; if he rules, “You can’t introduce evidence X and Y, but can introduce Z,” . . . if the Senate wants to overrule him, the Republicans (!!!) now have the majority, 50-49.

      Republicans get a double-win with Leahy in charge. (2) It looks a bit more partisan. And (2) It actually favors Republicans, if my above analysis is correct.*

      *(I am assuming that if Leahy presides and makes Rulings X, Y, and Z, he will not be permitted to also cast a vote regarding the Senate possibly overruling his X, Y, and Z decisions. I can’t find anything in the Senate laws or bylaws forbidding him from “double-dipping.” But I can’t imagine it being kosher.)

      1. My take was a little different. Roberts may have been signaling that if the SC was to rule on Trump’s impeachment it would be that it did not meet the bar of a constitutional impeachment. The constitution clearly says the CJ is to preside in an impeachment and does not seem to allow for something like recusal.

        As for Leahy presiding I see no provision at all for that and am not sure he is prevented from voting in what looks like a kangaroo court with a slim majority of Senators seemingly making up the rules as they go along. I would not bet the farm Leahy does not wind up voting.

        1. What? Don’t over-think this: The Chief Justice presides when a President is tried, and Trump hasn’t been President since January 20th. So Roberts doesn’t preside.

          1. This is like being half pregnant — he’s either the President or the trial is moot.

            1. Nope. He had to BE President to be impeached, because the Constitution specifies which sorts of offices are subject to impeachment, and after Jan. 20th he didn’t hold any of them. But the only requirement to be tried is having been impeached.

        2. “what looks like a kangaroo court”

          It’s fantastic how so many conservatives have suddenly discovered the importance of due process, now let’s see if they can expand that sentiment outside of billionaire ex-Presidents…

    2. I am still concerned about CJ Roberts not presiding and a dem who has a dog in the hunt presiding. The clear wording of the Constitution is that the CJ presides over a trial in the Senate.

      I mean, no. The clear wording of the constitution is that the CJ only presides over trials of presidents. Most impeachments are not of the president.

  8. You all don’t get what Trump is going to do.

    He’s going to run for Congress in a safely MAGA Florida district. The GOP should pick up some redistricting benefits in the 2022 election and Trump will won his House seat easily. He’s also likely to win the Speaker job and when he does, he’ll have control of both the legislative agenda and the impeachment hearing process.

    1. There’s also nothing the US Senate will be able to do to stop this.

      1. Well…if the Senate does not convict, of course there is nothing else to prevent this from happening. Absent conviction, of course Trump is and should be free to run for election for any office. (There may be restrictions on some offices, which could prevent Trump from doing this, if he ends up with criminal convictions for tax fraud, etc. But I’m not sure if there is any prohibition on someone who is incarcerated from serving in the Senate or House. Maybe there is some sort of must-be-sworn-in,-in-person, requirement??? . . . )

        1. Wasn’t Alcee Hastings convicted in regular court too?

          1. No, he was acquitted in criminal court. In fact, one of his defenses at the impeachment trial was that it was double jeopardy since he’d already been acquitted of the criminal charges.

            1. I like how Dr. Ed can spend hours just making up facts about what happened on some cul-de-sac in Springfield, Massachusetts in 1992, but he can’t take 10 seconds to look at Hastings’ wikipedia page.

        2. As the post says, even if he were convicted he would still be free to run for any office. And to serve if he won.

          1. Heck, people have run for Congress from jail, and won.

    2. There are a lot of reasons he won’t do that – being Speaker involves doing actual work, for one thing – but rather than cite them I’ll just say I’d be glad to take your action on this.

      How much you want to play for?

    3. No, he’s going to become GOP party chair and kingmaker.

      1. Nope to all. He’s going to :

        1. Play a lot of golf
        2. Make a lot of noise (but only occasionally)
        3. Try to stay out of jail.
        4. Become increasingly irrelevant.

        Remember : He’s lazy, undisciplined and has the attention span of a toddler.

  9. Has either house of Congress expelled a member? And if so, has that person ever run again and won, and were they allowed back in?

    1. Adam Clayton Powell. And the courts ruled that Congress couldn’t kick him out, however corrupt he in fact was. And his Haarlem district kept electing him.

      1. The case is much more subtle then that. And he was never expelled from Congress, he was excluded, and that made a big difference to the Court.

      2. No, Powell was never expelled. The House voted not to seat him, which as the supreme court pointed out is not the same thing at all. It said if the House wanted to expel him it was free to do so, but that it didn’t think that was likely, because Congress has a very long-standing view that members can only be expelled for offenses that took place in the current term. The court was careful not to endorse that view, but it took official notice that Congress had held this view for a very long time, and was unlikely to ditch it now.

    2. Of course galt knew this when he ‘asked’ the question. The internet, folks.

    3. The house has expelled five members, and the senate fifteen. As far as I know none of them has tried to be reelected, but there is no bar to their doing so, and if they were reelected their house would have to seat them. The power not to seat a member only applies if there is a genuine doubt whether he was elected.

      1. The power not to seat a member only applies if there is a genuine doubt whether he was elected.

        Where do you get that? Does the constitutional power of each house to make its own rules have anything to say about it? What power elsewhere constrains the constitutional power in such a case?

        1. Where do you get that?

          Powell v. McCormack, 395 U.S. 486, 522 (1969)

          1. Thanks for the pointer. Doesn’t seem to say what Millhouse claims.
            There seems to be precedent for the Supreme Court to dismiss cases about contested House rulings using the political questions doctrine. Do you see it otherwise?

      2. How many outside of the Civil war and representing the Confederacy?

      3. “As far as I know none of them has tried to be reelected”

        Traficant was expelled from the House and ran for election subsequently: once while incarcerted and once after his release.

  10. Here’s the thing.If the framers wantted to make these fine distinctions among “officers,” “officers under,” whatever, they could easily have done so without requiring us to decipher runes.

    “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.”

    Why not:

    “Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any appointive office under the United States”

    No riddles.

    1. That what “office” means.

      1. No that is your argument. I think the better argument from a construction principles point of view is that the term “Office” used twice in the same sentence means the same thing:
        “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.”
        So if the holder of the “Office” is subject to impeachment and removal, the removed holder is subject to the disqualification.

  11. It seems strange to argue that the framers intended to leave the choice of who could or should be president in the hands of the voters, when they went to such lengths to avoid direct election of the president by the voters. But almost all of Profs. Tillman and Blackman’s historical arguments seem strange to me. Or perhaps rather than strange, incompletely and selectively chosen to bolster a contemporary political viewpoint.

  12. This is now just getting embarrassing. Prof. Blackman is better than this. He is doing what conservatives has historically railed against, violating the plan text of the Constitution for partisan political reasons.

    But if he just wants to become the primo legal apologist for Trump then he should just move to Mar-a-Lago and join the distinghished legal team of Rudy, Sidney Power, and their cohorts. Hopefully he will not and will continue to present us with interesting and provocative posts that are better than this one.

    1. How can he be doing it for partisan political reasons, when he publicly took this view long before Trump was even a candidate? How could he possibly have known then that the next Republican president would be impeached?

  13. Point: This is a stupid sham.

    Republicans should just boycott the entire proceeding.

    1. What a great idea! Trump can then be convicted by a unanimous vote. Duh

      1. No, they’d lack a quorum in that case, but it would have to be every single Republican Senator boycotting it.

        1. True, but it would only take one R Senator to be in the chamber to ensure conviction. I do think that the Rs should do that, that way they can get rid of Trump without every having to vote on it.

          1. True, in theory you could convict with 50 Democrats and Mitt Romney.

            If that happened, it would be very clear that it had been pre-arranged, and the GOP’s cold civil war would turn hot. Their chances of taking back Congress in 2022 would be dead.

            It’s about the best way to guarantee the GOP splitting up.

  14. I find Professor Blackman’s trchnical argument that the President is not an “officer of the United States” and does not hold an “office of trust or profit under the United States not just tendentious but disingenuous. The Framers were clearly gravely concerned about the possibility of a President gone amuck and clearly had the President partly in mind when they debated the impeachment power.

    1. Wait, are you under the impression that anyone is claiming a president can’t be impeached?! How could you possibly have got that idea?

      But the impeachment clause itself shows that the president is not an officer of the united states, because when listing the people who can be removed by impeachment it says the president, the vice president, and all civil officers of the united states. If the president and VP were such officers there would be no need to list them separately.

      1. There is no misimpression here.

        Professor Blackman’s brief is, and very clearly so, an argument that “any office of trust or profit under the United States” does not include the Presidency, leaving Trump free to run for President again even if he is convicted.

        And my comment is equally clearly a claim that this argument is “not just tendentious but disingenuous.”

  15. In this particular case, the article of impeachment invokes Amendment 14, sec. 3 as a basis for proceeding.

    If the Senate, by a 2/3 vote, while sitting in its judicial/quasi-judicial capacity, finds Trump guilty under this article, that is equivalent to a ruling that Trump is excluded from office under Section 3.

    “No Person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.”

    Hmmm…no explicit reference to the Presidency. I think some of the Conspirators dealt with this issue before. But it *does* specifically ban membership in Congress.

    1. But congress does not get to decide who is disqualified under that clause. It has the power of impeachment, but that is not impeachment. And it does not have the power to decide what the constitution means. Any part of it.

      1. “But congress does not get to decide who is disqualified under that clause. It has the power of impeachment, but that is not impeachment.”

        Hmmm…the article of impeachment invokes Section 3. A guilty verdict would involve finding a section 3 violation.

        1. Of course, the Senate couldn’t stop an elections board or court from disagreeing about (say) disqualification from state office, and it couldn’t stop the House from seating a convicted person.

          But as a practical matter, there may be a certain degree of deference shown the Senate.

          1. Likely such deference would be shown in states a Republican was unlikely to carry anyway.

      2. Once again Millhouse, “sole power,” has meaning and implications, both of which you are trying to ignore. You probably suppose that the courts are supreme with regard to constitutional meaning, and you certainly seem to want it that way. But the courts cannot constrain the sovereign People, and the sovereign People are the authors and supreme judges of everything in the Constitution. It is their decree.

        1. I agree that the Senate gets to set the penalty and could choose not to disqualify him, and if it so chooses, the courts won’t disturb it. I also agree this means that in this case implementation of Section 3 of the 14th Amendment is in the Senate’s hands, not the courts’.

          That said, I think that a scenario where 67 Senators will vote to convict, yet less than 51 will vote to disqualify, while theoretically possible, is an extremely unlikely scenario in this situation as a practical matter.

  16. I believe Professor Blackman has badly misrepresented Harper. Blackman makes it sound like Harper agreed with the distinction between his speech. In fact, Harper appears to argue the exact opposite:

    Page 304:
    “The clause does not speak of a civil office, or a military office, or any particular species of either, but of any office of ‘honour, trust or profit’, which is genus generalissimum, and includes every possible designation of office, of what nature or kind soever”

    Page 305:
    “We apply the term to a constable, or the cryer of a court, as well as to the Chief Justice of the United States, to a midshipman in the Navy, and ensign in the Army, or a weigher in the Custom House, as well as to the President of the United States”

    But those are minor, the real meat is on Page 314, where Harper explains that impeachment power (over Senators) is needed in addition to the expulsion power, specifically to disqualify the Senator from being sent back by his state legislature. At the time Senators were not directly elected. But neither were Presidents. Clearly Harper saw no distinction between the two, and in fact uses the fact that Presidents are liable to argue that Senators must also be liable.

    If Prof. Blackman wants to put his own words in Harper’s mouth he needs to do a lot more explaining.

    1. Second sentence should have been:

      Blackman makes it sound like Harper agreed with the distinction between appointed and elected offices in his speech.

  17. Blackman and Tillman make a clever originalist argument here. They point to Federalist 77 by Hamilton: “[T]he President [is] at all times liable to impeachment, trial, dismission from office, incapacity to serve in any other . . . .” And they conclude that the word “other” implies that the Senate cannot disqualify the President from the presidency itself.

    However, see Federalist 79, also by Hamilton: Judges “are liable to be impeached for malconduct by the House of Representatives, and tried by the Senate; and, if convicted, may be dismissed from office, and disqualified for holding any other.” Are Blackman and Tillman saying that Judges cannot be disqualified from the office from which they were removed?

  18. Blackman and all the commentors are guessing how a Court would rule when a board of elections is sued (if Trump ever decided to run again).

    All this Back and forth, with extra insults added, time-wasting when the best procedure is prosecution in an Art.III Court. Let the (Acting) US Attorney for the District of Columbia do his job

  19. OK, say Trump is convicted and prohibited, and loses the inevitable SCOTUS challenge (IMHO why Roberts isn’t presiding, he doesn’t want to have to recuse himself).

    You will then have a truly loose cannon, with nothing to lose, and subject only to the criminal standard of _Brandenberg_. Do you have any idea how much trouble he could cause?

    Be worried, be very worried…

    1. Geez, Ed – what would be the difference? We’ve already seen Trump as a loose cannon with nothing to lose. We had weeks of that after Biden won the election.

      He spent months systematically lying to his supporters; he tried to bully state election officials into changing vote totals; he tried to use the DOJ to push phony allegations of election fraud; he demanded Pence perform a clearly unconstitutional act; he loosed a mob against Congress to stop the vote certification.

      You say there should be no repercussions from Trump’s last time as a loose cannon because that might prompt more of the same?!? I bet criminals everywhere love that kind of reasoning.

      Personally, I’m not worried about Trump’s further misbehavior. After all, he’s a deeply-stupid child-like buffoon – let him debased and discredit himself even more.

      But I am concerned over a future president learning from his misdeeds. That president might not be a clown. He might actually succeed in sabotaging a U.S. election. That’s why Trump should be convicted for his actions.

  20. All the lawyers here act like their legal opinions on the upcoming impeachment really matter. The Democrats don’t care about law and precedent, or the final outcome (which is already pretty much predetermined). They just want the show trial.

  21. The useful part of this discussion is in distinguishing impeachment from attainder, and realizing that impeachment, always a function of the commons and the political force of the people, formerly happened within a political structure that wasn’t exactly a people’s democracy — so many of these principles are being written new in different political circumstances. The irony is that the coming week will result in probably the most significant court-made law in years., courtesy of largely conservative legislators.

    That said, there are some difficulties with the post’s historical examples. The provision of Danby’s punishment which specified that it was to survive the dissolution of parliament was reversed prior to his taking his seat in the Lords. And while Bacon’s 1621 impeachment and conviction held that “(t)hat he shall for ever be incapable of any office, place, or employment in the State or Commonwealth,” after his efforts to reform Chancery while defending its privileges against Coke and the common lawyers in Parliament, he turned his attention in his few remaining years to writing and science, later perishing of pneumonia while trying to preserve poultry-meat in the snow — the fatal event being: Bacon rapt with chicken.

    Mr. D.

  22. One of my state’s senators told me that some senators detest Rand Paul more than they despise Ted Cruz.
    sharikat mukafahat alnaml al’abyad bialriyad

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