A Response to Professor John Mikhail on "Officers of the United States" - Part II

The issues, arguments, and evidence raised by Mikhail have already been addressed by extant scholarship, including our scholarship. Mikhail’s arguments and evidence were not “ignored or overlooked.”

[This post is co-authored with Professor Seth Barrett Tillman.] 

This is the second part of our response to Professor John Mikhail's Balkinization post. Part I can be found here.

Joseph Story, Redux

In his Monday, February 19, 2024 Balkanization post, Mikhail wrote:

Justice Story proposed this idea in his influential Commentaries on the Constitution of the United States, although he did so in a somewhat equivocal manner, first referring to the President and Vice President as officers of the United States (§789) before suggesting the opposite conclusion (§791).

Our Tuesday, February 20, 2024 responsive post pointed out that Section 789 says nothing at all about the President. In a follow-up post yesterday, on Wednesday, February 21, 2024, Mikhail posted a correction, indicating that he meant to refer to Section 788:

In my post on Monday, I wrote "789" instead of "788" when referring to the section of Joseph Story's Commentaries on the Constitution of the United States (1833) in which Story refers to the President and Vice President as officers of the United States. In Section 788, Story wrote: "From this clause it appears, that the remedy by impeachment is strictly confined to civil officers of the United States, including the president and vice-president." This mistake has now been corrected. (emphasis added)

We appreciate the correction, but Mikhail's characterization of Story is still not right. Sections 788 and 791 are not in tension. Story did not contradict himself, or "suggest[] the opposite conclusion." 

Let's walk through the analysis.

Section 787 introduces the text of the Impeachment Clause: "The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors." 

Section 788 begins:

From this clause [the Impeachment Clause] it appears, that the remedy by impeachment is strictly confined to civil officers of the United States, including the president and vice-president. In this respect, it differs materially from the law and practice of Great-Britain. In that kingdom, all the king's subjects, whether peers or commoners, are impeachable in parliament; though it is asserted, that commoners cannot now be impeached for capital offences, but for misdemeanours only.

Our analysis starts with the second sentence of Section 788. In the British system, "all the king's subjects" could be impeached, including private citizens. Today, people may assume that the American system never allowed such a broad conception of impeachment. But this assumption would be unfounded. Under this understanding of the Impeachment Clause, other people, such as private persons and even federal officials not enumerated by the clause, could also be impeached, but removal and disqualification were optional. Under this view of the Impeachment Clause, the purpose of the clause was not jurisdictional; rather the clause merely made removal mandatory when a person convicted in impeachment proceedings held one of the three enumerated positions: President, Vice President, or civil officer of the United States. 

We discuss this alternate view on pp. 396-397 of Part III:

We acknowledge that there is, and has been, a long-standing, alternate, minority view—the Impeachment Clause only requires the remedy of removal for the three expressly-listed classes of positions: "[1] The President, [2] Vice President and [3] all civil Officers of the United States." See Joseph Isenbergh, Impeachment and Presidential Immunity from Judicial Process, 18 Yale L. & Pol'y Rev. 53, 66 & n.49, 98 & n.207 (1999); see also Timothy Farrar, Manual of the Constitution of the United States of America 436 (Boston, Little, Brown, & Co. 3d ed. rev. 1872) ("The general power of impeachment and trial may extend to others besides civil officers, as military or naval officers, or even persons not in office, and to other offences than those expressly requiring a judgment of removal from office . . . ."). In other words, beyond the three enumerated classes of positions, there are other categories of positions that can be impeached. These impeachable positions could include: (i) current federal officials and officers beyond the three enumerated classes; (ii) former federal officials and officers beyond the three enumerated classes; (iii) state officers; and (iv) even private persons who never held any federal position.

Under the minority view, if a person in these other categories is impeached and convicted, removal is not mandatory. Specifically, for those positions that are not expressly listed by the clause's language, the Senate has two options if a defendant is convicted: first, the Senate may remove that official if the official holds an office at the time of conviction; second, the Senate may impose a lesser punishment, such as discipline, suspension, censure, or even no punishment. For example, under this minority view, if a member of Congress were impeached and convicted, the Senate may impose removal as a punishment, but it need not do so. We think this minority view is not correct; rather, we adhere to the standard view: the Impeachment Clause should be read jurisdictionally. The provision limits the scope of impeachment to the three listed classes of positions. In any event, our discussion of the scope of the Impeachment Clause's "Office"-language is unaffected by the debate over the jurisdictional scope of the clause's language.

Supporters of late impeachment for President Trump may find this minority view persuasive. Professor Brian Kalt has developed this position in his scholarship. Moreover, supporters of the House's decision to impeach Senator Blount may also find this view persuasive. Under this alternate view, members of Congress can be impeached, and if convicted by the Senate, removal was optional. Indeed, some lesser sanction could attach. And under this view, members could be impeached regardless of whether they were "Officers of the United States."

Back to the first sentence of Section 788. It provides:

From this clause [the Impeachment Clause] it appears, that the remedy by impeachment is strictly confined to civil officers of the United States, including the president and vice-president. (emphasis added)

Story begins Section 788 with the word appears. Here, we think he was tentative on whether impeachment is in fact "strictly confined" to the enumerated government officials listed in the Impeachment Clause, or whether other people can be impeached. Ultimately, Story contends that the American system "differs materially" from the British system. But he acknowledges the contrary position. 

We acknowledge there are two ways of reading the first sentence of Section 788. Under the first view, which Mikhail advances, Story wrote that the category of "civil officers of the United States" includes the President and Vice President. Under the second view, Section 788 was discussing how the American system of impeachment differs from the British system of impeachment: whereas in Great Britain, "all the king's subjects" could be impeached, under the federal Constitution, impeachment was "strictly confined" to certain government positions. And impeachment was strictly confined to: "civil officers of the United States" as well as the President and Vice President. That is, after all, what the text of the Impeachment Clause actually states. There is no reason to think that Story intended Section 788 as  a detailed, technical discussion of the scope of the Impeachment Clause's "Officers of the United States"-language. That was not the purpose of Section 788. Indeed, in the very next section, Section 789, Story would explore the meaning of the clause's "civil officers"-language. That would be odd to do if Section 788 had already explored that subject in any detail. Furthermore, Story would expressly engage in a discussion of the Constitution's "officers of the United States"-language and "office under the United States" three sections later: in Section 791. 

We acknowledge that if you only read the first sentence of Section 788, standing alone, Mikhail's reading makes some sense. However, we suggest that if you read that sentence in context, if you read the entirety of Section 788, and what follows in Sections 789-791, combined with a background understanding of the British view on impeachment, our reading is the better one.

In the past, we have cited Justice Story's analysis in Section 791 to show there are good early American sources that put forward the same views we have put forward. See Part III at 399. The view we have put forward as to the scope of the Constitution's "officer of the United States"-language is not an idiosyncratic one. Our view is not one which was invented in the twenty-first century. The view we put forward is not a textual accident imposed by modern interpreters on the constitutional text. 

As we will show below, Story puts forward a detailed interpretation of the Constitution's "office"- and "officer"-language, and he supports that view by surveying the text of several constitutional provisions. The view Story put forward in Section 791 rejects the idea that the President is an "officer of the United States." But now Mikhail and others are invoking Section 788 to allege that Story was somehow being inconsistent with himself. So we have responded here. The better view is not that Mikhail's position has been "ignored" or "overlooked." Rather, Mikhail has simply taken a single sentence from Section 788 out of context, or perhaps misunderstood Story's commentary on the Impeachment Clause.

Let us proceed to the next section in Story's Commentaries. Section 789 (which Mikhail had originally cited) provides a discussion of the word "civil" in the term "civil officers." "Civil," Story writes, "is sometimes used in contradistinction to military…"

Section 790 states that "All officers of the United States, therefore, who hold their appointments under the national government, whether their duties are executive or judicial, in the highest or in the lowest departments of the government, with the exception of officers in the army and navy, are properly civil officers within the meaning of the constitution, and liable to impeachment." This passage suggests that the "civil officers of the United States" who are subject to impeachment are appointed under the national government.

Let's turn now to Section 791, which provides:

And the clause of the constitution, now under consideration, does not even affect to consider them officers of the United States. It says, "the president, vice-president, and all civil officers (not all other civil officers) shall be removed," &c. The language of the clause, therefore, would rather lead to the conclusion, that they were enumerated, as contradistinguished from, rather than as included in the description of, civil officers of the United States. Other clauses of the constitution would seem to favour the same result; particularly the clause, respecting appointment of officers of the United States by the executive, who is to "commission all the officers of the United States;" and the 6th section of the first article, which declares, that "no person, holding any office under the United States, shall be a member of either house during his continuance in office;" and the first section of the second article, which declares, that "no senator or representative, or person holding an office of trust or profit under the United States, shall be appointed an elector."

Story writes, "the enumeration of the president and vice president, as impeachable officers, was indispensable; for they derive, or may derive, their office from a source paramount to the national government." Indispensable! That is unusually strong language. Much stronger than the tentative word "appears" that is in Section 788. Story then explains how the Impeachment Clause refers to "the president, vice-president, and all civil officers," not "all other civil officers." Story highlights that this wording reinforces the conclusion that the President is not an "Officer of the United States." And Story explains this reasoning extends to other clauses of the Constitution that use the phrase "Officers of the United States," including the Appointments Clause and the Commissions Clause. Story makes a similar argument about the phrase "Office under the United States," and to do so, he points to the Incompatibility Clause and the Elector Incompatibility Clause. 

Let's summarize. Section 788 offered a tentative observation about the jurisdictional scope of the Impeachment Clause. In Sections 789 and 790, Story developed a working definition of "civil Officers of the United States." And in Section 791, Story put forward a detailed analysis supporting the position that the President is not an "Officer of the United States." That analysis examined the text of several constitutional provisions; it was not a mere expectation or intuition. The upshot is that Story did not contradict or reverse himself: Section 788 and Section 791 are not in tension with one another. And even if they were in some tension, Section 791 should be favored. The position Mikhail ascribes to Story in Section 788, even if it were Story's position, is, at most, an unreasoned conclusion. By contrast, Section 791 is an exercise in public reason. 

From Joseph Story to Gouverneur Morris

Our scholarship has detailed the somewhat complex drafting history of the Impeachment Clause. See Part III of our series (p. 364). And in a February 11, 2024 post, Blackman summarized that drafting history. We wrote in Part III:

As late as September 8, 1787, the Impeachment Clause only extended to the President. That day, a motion was made to add "[t]he [V]ice-President and other Civil officers of the U. S." to the scope of the clause. 2 Farrand's Records 552 (emphasis added). The motion was passed unanimously. Id. at 545, 552. The use of the word "other" suggests that the President and Vice President are properly characterized as "Civil officers of the United States."

Here again, Morris and the Committee of Style changed the text. The amended text stated: "The president, vice-president, and all civil officers of the United States, shall be removed from office on impeachment . . . ." Id. at 600. The phrase "and other Civil officers of the U.S." was changed to "and all civil officers of the United States." The word other was not merely dropped; it was changed to all.

We have no good reason to believe that the [c]ommittee dropped the word "other" by accident or happenstance. On the contrary, omitting the word "other" provides some evidence that the meaning was altered. Arguably, Morris and his committee recognized that the President and Vice President were excluded from the category of "Civil officers of the U.S." Why else remove the word "other"?

Mikhail covers some of this legislative history in his post, but draws a different conclusion. Mikhail writes:

Why did Morris [and the Committee of Style] write "all civil officers of the United States" rather than "all other civil officers of the United States"? No definitive answer exists, but I'm not aware of any evidence that he did so because he believed that the President or Vice President were not officers of the United States. 

Mikhail sets up an unfalsifiable hypothesis, akin to a heads-I-win-tails-you-lose argument. If the Framers had left in the word "other," it would be proof that the President is an "Officer of the United States." But because the Framers took out the word "other" without leaving a documentary record, it is proof that the President is still an "Officer of the United States." We suggest that that position is not a reasonable one. And we have several responses.

First, as a threshold matter, we generally agree with Justice Scalia's admonition in D.C. v. Heller: "It is always perilous to derive the meaning of an adopted provision from another provision deleted in the drafting process." What matters most for purposes of original public meaning is the adopted text that was debated and ratified. The records of the Convention were confidential, so the ratifying public would not have had knowledge about the particular work of the Committee of Style. They would only know about the final, adopted text transmitted to the states. And the final, adopted text states: "The president, vice-president, and all civil officers of the United States, shall be removed from office on impeachment . . . ." The clause's text does not include "other." The word "other" was known to the Framers, and it was used in several other constitutional provisions. The word "other" was extracted from the Impeachment Clause, but it remained in several other constitutional provisions. That too is telling. And, "all" precedes "civil officers of the United States." The text is, at the very least, consistent with our position. The text leans more toward our interpretation, that is, that the President and Vice President are not encompassed by the 1788 Constitution's "officers of the United States"-language, than the contrary interpretation put forward by Mikhail. Why else use "all" in this fashion? Here, we are not relying on "other" having been removed, but on "all" preceding "officers of the United States" in the final, adopted text. 

Second, the Committee of Style made several surgical changes to the Constitution's "office"- and "officer"-language. The committee changed the language in the Religious Test Clause from "office or public trust under the Authority of the United States" to "office or public trust under the United States." The committee dropped "the authority of"-language. And the committee changed the language in the Succession Clause from "officer of the United States" to "officer." These changes were made after the Appointments Clause (in our view) defined who are the "Officers of the United States." The committee's several changes to the Constitution's "office"- and "officer"-language are some further evidence that these changes were meaningful to those who were most involved in the Constitution's drafting. Any interpretive position ascribing the same meaning to "office," "officer," "officers of the United States," and "office . . . under the United States" is adopting a position which is inconsistent with what we know about how multiple provisions of the 1788 Constitution were actually drafted. 

Why did the committee make these changes, as well as dropping the word "other" in the Impeachment Clause? We have no good reason to think these changes were made by happenstance or accident. Rather, a more plausible explanation is that Morris and the committee were trying to standardize how "office"- and "officer"-language was used throughout the Constitution, and they recognized that the President and Vice President did not fit in the category of "Officers of the United States." The final language of the Appointments Clause was only agreed after September 4, 1787, towards the end of the Constitutional Convention. (We reviewed the drafting history of the Appointments Clause in Part III of our series (pp. 387-390) and in this post.) In our view, this language in the Appointments Clause defined the meaning of "officers of the United States." Thus it is no surprise that the Committee of Style made these changes to the Constitution's "office"- and "officer"-language after the Appointments Clause was settled during the last weeks of the convention. 

Third, our conclusion is not an idiosyncratic one. Joseph Story made the same observation nearly two centuries ago. Section 791 of his Commentaries put forward the view that the language of the Impeachment Clause, as well as several other constitutional provisions, distinguishes the President and Vice President from "officers of the United States," and distinguishes the President and Vice President from "offices . . . under the United States." Story put this view forward in 1833. And the interpretation he put forward in 1833 was confirmed by Madison's convention notes, which was first published in 1840. Again, Story based the view he put forward on the Constitution's text, and that textual interpretation was subsequently confirmed by Madison's Notes. Mikhail asks for documentary support—we think this is just such support. 

Fourth, we bring forward an argument that Tillman made in an exchange with Professor Steve Calabresi in 2008:

Calabresi's position is that "other" was dropped as "redundant." That strains credulity. Why? In Calabresi's view, the President and Vice President are obviously officers of the United States. So if the drafters dropped "other" because it was redundant, why did they not go further (in the interest of avoiding redundancy) and also drop "The President" and "Vice President?" (Indeed such additional editing to the Impeachment Clause would have made it textually consistent with the Commissions Clause.) Furthermore, in his 1995 Stanford Law Review article, Professor Calabresi (and a cast of thousands) argued that "officer" and "officer of the United States" were coextensive on the theory that where the Constitution meant to include state officers, it did so expressly. So in Calabresi's view, "the President, Vice President, and all other civil officers of the United States" is coextensive with "the President, Vice President, and all civil officers of the United States" is coextensive with "all civil officers of the United States" is coextensive with "all civil officers." Yet Calabresi argues that in order to avoid redundancy, the Founders just dropped "other." So Calabresi's position boils down to this—by dropping "other," the Founders aimed to avoid redundancy, but they were too incompetent to actually achieve it.

If Mikhail and Calabresi (circa 2008) are right, then the Impeachment Clause could have simply referred to "civil officers." But it does not. The analysis here is not new. Contra Mikhail, nothing was "ignored" or "overlooked." Furthermore, nothing in the history of the Impeachment Clause supports Sam Bray's argument that the President was specifically enumerated in the Impeachment Clause to make clear that the President, unlike the British king, could be impeached. This view is not supported by the Impeachment Clause's actual drafting history. Bray's position is pure speculation.

The 1799 Postal Act 

Mikhail also cites from the Heilpern and Worley paper, which will be published in the Southern California Law Review:

Finally, the 1799 Postal Act referred to both the President and Vice President as "Officers of the United States." Heilpern & Worley, USC Law Review, forthcoming.

(We discussed an earlier version of the Heilpern/Worley paper that cited the Postal Act of 1792.) Does the Postal Act of 1799 prove that the President is an "Officer of the United States" for purposes of the Appointments Clause? Section 17 of the Act provides, in part:

That letters and packets to and from the following officers of the United States, shall be received and conveyed by post, free of postage. Each postmaster, provided each of his letters or packets shall not exceed half an ounce of weight; each member of the Senate and House of Representatives of the Congress of the United States; the Secretary of the Senate and Clerk of the House of Representatives, provided each letter or packet shall not exceed two ounces in weight, and during their actual attendance in any session of Congress, and twenty days after such session; the President of the United States; Vice President; the Secretary of the Treasury; Comptroller; Auditor; Register; Treasurer; Commissioner of the Revenue; Supervisors of the Revenue; Inspectors of the Revenue; Commissioners for direct taxes; Purveyor; the Secretary of War; Accountant of the War office; the Secretary of State; the Secretary of the Navy and Accountant of the Navy; the Postmaster General; Assistant Postmaster General …. (emphases added)

Is the 1799 act a persuasive argument against the Tillman-Blackman position? No. Congress, when drafting statutes, is not required to adopt the same meaning of "Officers of the United States" as that phrase is used in the Constitution. Statutes can adopt broader or narrower understandings of "Officers of the United States" as that language is used in any particular statute. Indeed, this statute defines who are the positions referred to. This statute is a thin read to rely upon. 

There is another problem with the 1799 Act. The statute provides for postage franking privileges for different positions in the federal government. Among those positions listed are the President, the Vice President, and members of Congress. The statute refers to these positions, and others, as "officers of the United States."

Do you see the problem? Members of Congress are denominated as "Officers of the United States." The Incompatibility Clause bars Senators and Representatives from holding "Office under the United States." If Senators and Representatives are "Officers of the United States," and hold "Office[s] under the United States," then Senators and Representatives could not serve in Congress. Is this the position that Heilpern and Worley, and Mikhail, favor? The Amars wrote long ago that rank-and-file Senators and Representatives are not "Officers" of any stripe. We think the Amars are correct: rank-and-file members are not "officers of or under the United States." Now maybe Heilpern and Worley disagree with this position. Maybe Mikhail insists that Senators and Representatives are "Officers of the United States." Maybe Mikhail also thinks that members of Congress are appointed positions referred to in the Appointments Clause. The prevailing view is that members of Congress are not "Officers of the United States." The prevailing view is that members of Congress are elected, not appointed. And the prevailing view, since Blount, is that members of Congress cannot be impeached. This statute does not advance Mikhail's argument. 

United States ex rel. Stokes v. Kendall

Lastly, we turn to Judge Cranch's circuit court decision in United States ex rel. Stokes v. Kendall, 26 F. Cas. 702, 752 (C.C.D.C. 1837). We discussed Kendall at pages 39-43 of our NYUJLL article. 

In his post, Mikhail wrote: 

In their brief in Trump v. Anderson, the Anderson Respondents refer in passing to "a federal court" that declared that "the President himself . . . is but an officer of the United States," 

If you are curious what the ellipses elided, here is the full passage from Kendall:

The president himself, although called by the postmaster-general, in his answer, 'the highest representative of the majesty of the people, in this government,' is but an officer of the United States, the head of one of the departments into which the sovereign power of the nation is divided; and, as that is the executive department, he may, with propriety, be called the chief magistrate of the United States. (emphasis added)

Cranch was not making a statement about what constitutional language includes the President. Rather, he juxtaposed "officer of the United States" and "chief magistrate of the United States." And the Supreme Court decision which heard Kendall on appeal includes no comparable language, because this issue, that is, the scope of the Constitution's "officer of the United States"-language, was not relevant to the case. This amounts to cherry picked dicta or less; this precedent does not advance Mikhail's position. And nothing was "ignored" or "overlooked" here. 

Still, the larger issue is that Mikhail does not entertain the possibility that the phrase "officer of the United States," as used in the Constitution, was a defined term. In other words, the meaning of that phrase was defined by the Appointments Clause. How that phrase was used in other documents, in statutes, and judicial decisions, abstracted from interpreting any particular provision in the Constitution, is a different interpretive issue. Colloquial usage in a 1837 circuit case may use that phrase differently from how "officer of the United States" was used in the Constitution of 1788. And that was the view adopted by the Supreme Court in United States v. Smith and in many other Supreme Court opinions. When we are interpreting the meaning of "Officer of the United States" as used in any provision of the Constitution, we look to how that language was used "in the sense of the Constitution." Id. 

Conclusion

There is more we can say about Mikhail's short post, but we will pause for now. Mikhail has not explained what arguments and evidence we (or others) have "overlooked" or "ignored." Rather, he posted to a blog scattershot arguments that we (and others) have already responded to in the modern academic literature.

Perhaps our work has not persuaded everyone or, even, anyone, but we and others have covered this ground; we have been thorough. Our papers appear in journals, and they are available for free on the internet. We have also made good faith and persistent efforts to respond to critics in a timely way. By contrast, Professor Mikhail has had many years—and many years since 2017—to make the arguments which he now advances. In evaluating the merits of the positions he now advances—that is, positions put forward after briefing has closed and after the oral argument in Trump v. Anderson has been held—we should ask: If in-the-nick-of-time research, made for the consumption of decision-makers, which leaves little opportunity for others to respond, is entirely reliable? We suggest that such research was not reliable in 2017, and it is not reliable now.