The Volokh Conspiracy
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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 Trump—that 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).]