In my last post I promised to explore the origins, such as they are, of the theory that the president is not an “officer of the United States” and/or does not hold an “office under the United States.” In the interim there has been a development, of sorts, in which Professors Tillman and Blackman have pointed to some newspaper articles in 1868 that argue the president is not an officer of the United States (albeit not in the context of section 3). I am name-checked in their piece, apparently because these articles supposedly falsify my prior statement that “’there is no record of anyone else, eminent thinker or otherwise, saying’ that the President does not hold an Office under the United States ‘in the Constitution’s first two centuries.’” However, at the end of this post I will explain why these 1868 articles do not help Tillman and Blackman at all. To the contrary, they are an excellent illustration of my point.
You may recall Benjamin Cassady’s claim that “[b]eginning at the Blount impeachment trial and continuing to present-day academic debates, some eminent thinkers have parsed the Constitution and its history for clues to support ingenious arguments that the two top executives are not officers as the Constitution uses that word. . . .” A key issue in the 1799 impeachment trial of Senator Blount was whether a senator was a “civil officer of the United States” within the meaning of the Impeachment Clause, which provides that “[t]he President, Vice President and all civil Officers of the United States” are subject to impeachment.
The “eminent thinkers” identified by Cassady are Justice Joseph Story, Professor Brian Kalt, and Professor Tillman. One thing that these three have in common, apart from the eminence of their thinking, is that none were involved in the Blount trial. Story’s Commentaries on the Constitution, to which Cassady refers, was first published in 1833, more than three decades after Blount’s acquittal. But Story’s treatise contains speculation on what might have caused the Senate to decide Blount was not a “civil officer of the United States:”
The reasoning, by which it was sustained in the senate, does not appear, their deliberations having been private. But it was probably held that “civil officers of the United States” meant such, as derived their appointment from, and under the national government, and not those persons who, though members of the government, derived their appointment from the states, or the people of the states. In this view, 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. 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.
2 Joseph Story, Commentaries on the Constitution: With a Preliminary Review of the Constitutional History of the Colonies and States Before the Adoption of the Constitution §791 at 259-60 (1833) (emphasis in original).
Note that Story is not addressing himself to, or expressing an opinion on, the question whether the president is a “civil officer of the United States” within the meaning of Article II or any other constitutional provision. Instead, he is sketching out an argument as to why the Senate might have concluded senators and representatives were not civil officers of the United States under the Impeachment Clause. To support that argument, he points to the fact that the president and vice president are expressly enumerated in that clause, which might have reflected the framers’ view that they would not otherwise be covered by the general “civil officers of the United States” language (or, alternatively, that there might have been an ambiguity about whether they were covered because they “may derive,” i.e., arguably could be said to derive, their office from a source paramount to the national government). If therefore the express listing of the president and vice president was considered necessary because they were not “civil officers of the United States” or, perhaps more precisely, they were not unambiguously “civil officers of the United States” as that expression is used in Article II, then it is less likely that the framers intended that senators and representatives be encompassed within the “catchall” category of “civil officers of the United States.”
It will be noted that the argument sketched out, though not necessarily endorsed, by Story is similar in form to that adopted by Judge Wallace in Anderson v. Griswold, except in reverse. Story was suggesting that the express inclusion of the president and vice president in the Impeachment Clause was evidence that senators and representatives were intentionally excluded, while Wallace found that the express inclusion of senators and representatives in section 3 showed that the president and vice president were intentionally excluded. However, the arguments are not of equivalent force because there is no argument that senators and representatives are officers of the United States, while the president and vice president are not, but there is a strong argument that the president and vice president are officers of the United States, while senators and representatives are not. To explain why it is helpful to look at the arguments in the Blount trial itself. Continue reading “Cool Story, Bro: The Historical Origins of the Office/Officer Controversy”