House of Cads: Legislators and the Disqualification Clause

So I have now read Benjamin Cassady’s “You’ve Got Your Crook, I’ve Got Mine,” 32 Quinnipiac L. Rev. 209 (2014), to which Professor Tillman’s article responds. Cassady makes the case that the Constitution’s Impeachment and Disqualification Clauses do not apply to federal legislators. Much of the article is devoted to explaining why this result makes sense as a policy matter: basically that a crooked legislator is not as dangerous as a crooked judge or executive official and that voters should be able to “pardon” a crooked legislator by returning her to office with full knowledge of her misdeeds.

Cassady discusses at some length the famous case of John Wilkes, a radical and controversial member of Parliament who was expelled multiple times by the House of Commons for libelous comments but continually re-elected by his constituents. He argues that the fall-out from this case ultimately led to the recognition of an “electoral pardon” principle in the United States, pursuant to which it is improper for a legislator to be expelled (or not seated) based on conduct known to her constituents at the time they elect her.

I think Cassady is correct in his interpretation of the Impeachment and Disqualification Clauses. He may or may not be right that the “electoral pardon” principle explains why the Constitution treats legislators differently in this regard than executive or judicial officers. I am not sure myself that this distinction, particularly with regard to disqualification, makes that much sense from a policy standpoint. One might argue that there is no more reason to disqualify an impeached official from a future appointment to an executive or judicial office than from a future election to a congressional seat. After all, if the “voters” (who, in the case of senators, would originally have been the members of the state legislature) can “pardon” a candidate for a congressional seat, why shouldn’t the president and the Senate be permitted to “pardon” a nominee to an executive or judicial office?

Strictly from a policy standpoint, the more logical distinction would seem to be between the presidency (and perhaps the vice-presidency), on the one hand, and all other positions, on the other. The Framers anticipated that the impeachment of a president would be a traumatic event (hence Professor Chafetz’s analogy between impeachment and assassination), and it is understandable that they would not want the impeached president to be able to relitigate the Senate’s verdict through a subsequent presidential campaign. Such a campaign might very well be the equivalent of a counter-revolution to restore a deposed “ancien regime,” a development that would pose serious risk to the health of the body politic.

In contrast, the risks associated with allowing an impeached officeholder (whether or not a former president) to remain eligible for appointment to executive or judicial offices seem remote and speculative. The advice and consent process should be adequate to protect against the ill-advised appointment of impeached officeholders, just as it works for convicted felons and other bad characters. To the extent that the residual danger is deemed intolerable in some cases, it is not obvious why it should be any less so where the impeached officeholder seeks a seat in Congress.

Cassady suggests that the collective nature of most action in Congress makes a lone bad congressman less dangerous than a bad executive or judicial officer. He obviously doesn’t watch House of Cards. More seriously, the Incompatibility and Emoluments Clauses show that the Framers were concerned about possible corruption of legislators. Put another way, there is no convincing policy logic why, say, the Secretary of the Treasury is ineligible to serve in Congress so long as he holds his executive position, but becomes eligible once he is impeached, convicted, removed from office and forever barred from holding “any Office of honor, Trust or Profit under the United States.”

Fortunately, we have firmer guides to constitutional meaning here. As Cassady shows, constitutional text, structure and historical practice and precedent all support the conclusion that legislators are not “officers of the United States” covered by the Impeachment Clause and do not hold “Office[s] of honor, Trust or Profit under the United States” within the meaning of the Disqualification Clause. Cassady, 32 Quinnipiac L. Rev. at 278-83. Perhaps this resulted from a deliberate choice by the Framers to adopt the “electoral pardon” principle. But it seems to me equally plausible that they did not think one way or the other about whether legislative seats should be included in the Disqualification Clause. This becomes even more possible when one considers the Foreign Emoluments Clause, which, I strongly suspect, would have included Members of Congress within its strictures if anyone had thought about it. See id. at 282 & n. 361.

Anyway, voters remain free to “choose their crook” for Congress unencumbered by any past judgment of disqualification rendered by the Senate. But do they enjoy the same freedom with respect to the president? I will address that in my next post.