Category: Impeachment

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Immunity, Impeachment and Juristocracy (Part III: “Core” Official Conduct)

Despite Delahunty and Yoo’s claim that Trump “[c]losely follow[ed] Fitzgerald,” the two decisions are quite different in several ways. To begin with, Trump divides the president’s official conduct into “core” and “non-core” conduct. Today we will consider the Court’s ruling as to core official conduct. Although (spoiler alert) the Court finds that the president is absolutely immune from criminal liability for this conduct, its conclusion does not rest on Fitzgerald or the reasoning of that precedent.

The president’s core constitutional powers, according to the Court, are those within his “conclusive and preclusive” constitutional authority. They include both powers expressly provided in the Constitution, such as the power to grant pardons, and those that have been found to be implied, such as the power to remove executive officers appointed by the president and to decide whether to recognize foreign governments.

These core constitutional powers are not limited to formal acts. The Court explains that the president has “exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials.” Therefore, President Trump’s discussions with the Justice Department in connection with alleged fraud in the 2020 election, even if proved to be a mere sham to provide cover for his efforts to overturn the results of the election and remain in office, were exercises of his core constitutional powers.

The Court held that all exercises of a president’s core constitutional powers were beyond Congress’s power to regulate or criminalize. Although it terms this as the president enjoying “absolute immunity” from criminal liability for his core official acts, this is a somewhat misleading shorthand (as Justice Barrett’s partial concurrence suggests). The Court’s holding is not really that the president is immune from prosecution for crimes committed in the course of exercising his core constitutional powers, but that Congress lacks the power to criminalize those acts in the first place, even as part of a statute of general applicability. Echoing Barrett, Professor Whittington explains that “the question is not whether Presidents are immune from criminal prosecution as such, but instead whether particular criminal law provisions are constitutionally infirm as they might be applied to presidential actions.” Keith E. Whittington, Presidential Immunity, 2023-24 Cato Sup. Ct. Rev. 283, 301 (2024) (emphasis in original). A straightforward and relatively uncontroversial application of this principle is that Congress could not make it a crime to issue a pardon or to exercise the president’s constitutional power of removal.

The application of this principle to criminal statutes of general applicability is a good deal more controversial, but Whittington is correct that it was not invented out of whole cloth for purposes of the Trump case. He points to Bill Barr’s 2018 memorandum, which argued that Trump’s 2017 firing of FBI Director James Comey could not be prosecuted as obstruction of justice. (Barr in turn relied on prior Department of Justice opinions that found that interpreting certain broadly worded criminal statutes to the president would raise significant constitutional concerns).

Comparing Barr’s careful and narrow argument to the radical and slipshod opinion of the Trump Court is instructive. Barr does not make any claim that presidents enjoy criminal immunity for their official acts. He cites Fitzgerald’s civil immunity as an example of the law’s “array of protections designed to prevent, or strictly limit, review of the Executive’s discretionary powers,” but he does not suggest there is or should be any criminal immunity. Instead, he did what one would logically do under the Barrett/Whittington approach; he examined whether the statute in question, 18 U.S.C. §1512, the federal obstruction statute (also one of the two statutes charged in Trump), would be unconstitutional if applied to Trump’s firing of Comey. Much of Barr’s argument was focused on the proper construction of §1512, but he invokes the doctrine of constitutional avoidance to support his view that the statute should not be read to reach the Comey firing. Specifically, he argues that “defining facially-lawful exercises of Executive discretion as potential crimes, based solely on subjective motive, would violate Article II of the Constitution by impermissibly burdening the exercise of core discretionary powers within the Executive branch.” Barr Memorandum (Introduction) (emphasis added). The terms “facially-lawful” and “solely” are integral to Barr’s argument, and he repeats them several times in the memo. Continue reading “Immunity, Impeachment and Juristocracy (Part III: “Core” Official Conduct)”

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Immunity, Impeachment and the Juristocracy (Part II: Nixon v. Fitzgerald)

If Trump v. United States has no foundation in the original meaning of the Constitution (as discussed in my last post), what is the rationale of the decision? Delahunty and Yoo make three main points in support of the majority’s ruling: (1) the holding is consistent with (if not compelled by) the Court’s reasoning in Nixon v. Fitzgerald, 457 U.S. 731 (1982); (2) the holding is consistent with separation of powers principles; and (3) the holding is supported by public policy considerations, specifically the need to end the (allegedly) abusive prosecutions of the former president (and to prevent similar actions in the future). To a significant extent, these justifications amount to different ways of saying the same thing. Today we will look at the Fitzgerald decision and whether the separation of powers/policy rationales of that case provide support for Trump.

Fitzgerald held, in a 5-4 decision, that current and former presidents enjoy absolute immunity from civil damage suits for actions taken within the “outer perimeter” of their official duties. The majority opinion by Justice Powell identified a variety of sources of law that were relevant to the issue before it. First, it noted that its prior immunity decisions “have been guided by the Constitution, federal statutes, and history.” 457 U.S. at 747. Second, “at least in the absence of explicit constitutional or congressional guidance, our immunity decisions have been informed by the common law.” Id. Third, the Court “necessarily also has weighed concerns of public policy, especially as illuminated by our history and the structure of our government.” Id. at 747-48.

The Court then suggest that the immunity analysis may be somewhat different for the president:

In the case of the President the inquiries into history and policy, though mandated independently by our cases, tend to converge. Because the Presidency did not exist through most of the development of the common law, any historical analysis must draw its evidence primarily from our constitutional heritage and structure. Historical inquiry thus merges with the kind of “public policy” analysis appropriately undertaken by a federal court. This inquiry involves policies and principles that may be considered implicit in the nature of the President’s office in a system structured to achieve effective government under a constitutionally mandated separation of powers.

457 U.S. at 748.

This is a rather word salady way of saying two things. First, the Court thinks that the president should be treated differently in the immunity analysis than other executive officials, such as cabinet officers and governors. Specifically, while the Court’s precedents called for evaluating immunity based on the particular function being performed by the official who is sued for damages, Fitzgerald found that the unique nature of the presidency required extending immunity to all conduct within the “outer perimeter” of this official responsibility. Id. at 756; see also id. at 750 (“The President’s unique status under the Constitution distinguishes him from other executive officials.”).

The second point is that the grounding of the president’s immunity in separation of powers arguably placed it beyond Congress’s power to regulate. If the Constitution mandates absolute immunity for the president, Congress would be prohibited from imposing damages liability for any conduct within the outer perimeter of his duties. However, the Fitzgerald Court declined to decide whether the president would enjoy immunity in the event Congress enacted a statute which expressly authorized civil damages against the president. See Fitzgerald, 457 U.S. at 748-49 n.27 (“our holding today need only be that the President is absolutely immune from civil damages liability for his official acts in the absence of explicit affirmative action by Congress”).

This position was criticized by both the dissenters and Chief Justice Burger in his concurrence; they agreed that it was inconsistent for the majority to both claim that the president had absolute immunity based on separation of powers, on the one hand, and to leave open whether this immunity could be abrogated by affirmative congressional action, on the other. See Fitzgerald, 457 U.S. at 792 “We are never told . . . how or why congressional action could make a difference.”) (White J., dissenting); id. at 798 (Blackmun, J., dissenting); id. at 758, 763 n.7 (Burger, C.J., concurring).

The internal correspondence of the Fitzgerald Court shows that almost all of the justices, in fact, believed that this was a contradiction, though they were sharply divided on which way it should be resolved. The four dissenting justices, of course, believed the Constitution provide no immunity, while at least two other justices in the majority privately agreed with Burger that the constitutional immunity would apply even in the face of a statute to the contrary. Powell also indicated he would agree with Burger should the issue be presented, though he fluctuated somewhat on how definite this position was. Only Justice Stevens was firmly in the undecided camp, and he evidently refused to join the majority opinion unless it clearly spelled out that affirmative congressional action would present a different case.

Personally, I can see where Stevens was coming from. Although the Fitzgerald Court states that “[w]e consider [the president’s immunity from civil damages] a functionally mandated incident of the President’s unique office, rooted in the constitutional tradition of the separation of powers and supported by our history,” 457 U.S. at 749, these buzzwords mean very little. The fact that the Court “considers” immunity to be a “functionally mandated incident of the President’s unique office” just means that it believes subjecting the president to civil damages is a bad idea that would interfere with his ability to do his job. That it is “rooted in the separation of powers” is little more than another way to refer to the president’s “unique office,” or, as the Court phrases it later, “the special nature of the President’s constitutional office and functions.” See 457 U.S. at 756. The claim that immunity is “supported by our history” appears to be mostly meaningless filler.

Indeed, Powell’s early drafts used the phrase “justified by considerations of public policy” instead of “supported by our history.” He changed this wording, and made several other edits, in response to comments from his colleagues that the draft was too forthright in acknowledging that the decision was essentially an exercise of judicial policymaking. One particularly amusing memo from Stevens expresses concern about the frequent references to public policy and descriptions of “the Executive’s immunity as something that is granted by the Court rather than provided by law.” He explained that “[i]n a realistic sense, perhaps your opinion is entirely correct in referring to grants of immunity by judges, but I feel much more comfortable when I am able to say that we are merely applying the law as we understand it to exist independently of the composition of the Court.” Powell dutifully made the cosmetic changes, but the dissent still pointed out the reality. See 457 U.S. at 769 (noting that “the judgment in this case has few, if any, indicia of a judicial decision; it is almost wholly a policy choice, a choice that is without substantial support and that in all events is ambiguous in its reach and import”) (White, J., dissenting).

Given that, in a “realistic sense,” the opinion was more of a policy choice than a judicial decision, it is understandable that Stevens insisted on reserving the question of what would happen if Congress acted to impose liability on the president. Congress is rather better suited than the Court to make a policy judgment about whether the president should be subject to civil liability. Even if one accepts that the Constitution requires the courts to balance the public interest supporting and opposing immunity, the fact of congressional action would seem to be a factor that should be considered in weighing the competing interests (a point Powell made to his skeptical colleagues in an internal memo).

It is also worth noting that the Fitzgerald Court’s rhetoric about the president’s “unique office” should be taken with a grain of salt. In a case several years earlier, Butz v. Economou, 438 U.S. 478 (1978), the Court had held by a 5-4 majority that cabinet officers and other federal officials were generally entitled only to qualified immunity in civil damage suits. The dissent, however, contended that absolute immunity should apply. Three of the four dissenters in Butz joined the majority in Fitzgerald, while four members of the Butz majority dissented in Fitzgerald. Powell was the only justice who switched sides, and thus perhaps the only one who thought the president’s unique office was determinative of the level of immunity. (Justice O’Connor, who joined the majority opinion in Fitzgerald, had not been on the Court when Butz was decided). The decision to provide absolute immunity to the president but not to cabinet officers is thus one not necessarily dictated by the reasoning of either Butz or Fitzgerald. Cf. Fitzgerald, 457 U.S. at 784 (pointing out that the majority’s concerns about the chilling effect of civil lawsuits would apply to all officers, not just the president) (White, J., dissenting). Continue reading “Immunity, Impeachment and the Juristocracy (Part II: Nixon v. Fitzgerald)”

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Immunity, Impeachment and Juristocracy (Part I: Unoriginalist Sin)

Today I will start a series of posts on the Supreme Court’s decision on presidential criminal immunity, Trump v. United States, 603 U.S. __, 144 S.Ct. 2312 (2024), and its implications for the legal accountability of the executive. While I am harshly critical of that decision, my main purpose is not to show that it is wrong, but rather that it (along with related developments) dramatically increases the need for systemic congressional oversight of executive (not just presidential) wrongdoing. Moreover, because the decision also threatens Congress’s authority to conduct ordinary legislative oversight, the exercise of the oversight power in the House should be integrated to the extent possible with the impeachment power. Finally, because the courts may refuse to assist or actively thwart congressional investigations, Congress should seek to minimize judicial involvement in any aspect of its inquiries.

Today’s post will address the Trump decision from the perspective of original meaning. Again, my point is not so much that the decision is wrong (though it definitely is), but that its reasoning is untethered to any standard other than the personal opinions of at least five justices, which at the present time happen to be extremely pro-executive power. As Robert Delahunty and John Yoo wrote recently, the Court’s decision in Trump is “one of the most resounding defenses of executive power in its history.” While they mean that as a compliment, not everyone will view it as self-evidently laudatory.

Regarding the legal merits of the decision, Professor Jack Goldsmith commented shortly after the decision came down:

Many people seem to have a strong opinion about whether the Court’s recognition of fairly broad presidential immunity was “right” or “wrong.” But the standard sources of constitutional law do not permit a definitive answer to that question.

I respectfully disagree. I do think the “standard sources of constitutional law” permit a definitive answer to the question. Specifically, the most standard of all sources of constitutional law, namely the text of the Constitution, dictates the answer to the question.

To see why, let’s take a look at the “defense” of Trump offered by Delahunty and Yoo. I put the word “defense” in quotes because their argument clarifies the nature of the Court’s decision in a way that the majority, I think, might find less than congenial.

It is not surprising that Delahunty and Yoo would be supportive of the Trump decision. First, they are legal conservatives who would ordinarily be expected to agree with and defend the Court’s conservative majority. Second, they are veterans of the Office of Legal Counsel with expansive views of executive power. Third, as the piece itself makes clear, they are harshly critical of the supposed “lawfare” against Donald Trump.

Despite their strong predisposition to agree with the outcome of the Trump case, Delahunty and Yoo are clear about its lack of foundation in the original meaning of the Constitution. (To be sure, many other scholars have noted the non-originalist nature of the decision, but few of them are as enthusiastic about the result as Delahunty and Yoo). They acknowledge that “the Court rejected the strong originalist evidence against presidential immunity” and observe that “Chief Justice Roberts’ reasoning ran contrary to the textual and historical evidence at hand, which Justice Sotomayor’s dissent briefly surveyed.”

The authors go on to discuss Alexander Hamilton’s commentary in the Federalist Papers to buttress their point. They cite Federalist No. 69, in which Hamilton states: “The President of the United States would be liable to be impeached, tried, and, upon conviction of treason, bribery, or other high crimes and misdemeanors, removed from office; and would afterwards be liable to prosecution and punishment in the ordinary course of law.” They further cite Hamilton’s explanation in Federalist No. 65 that impeachment and conviction does not “terminate the chastisement of the offender,” who rather “will still be liable to prosecution and punishment in the ordinary course of law.”

What is interesting is that Delahunty and Yoo cease their analysis of the original meaning there, as if Hamilton’s statements standing alone refute the Trump Court’s position. They simply state “[i]t is difficult, if not impossible, to find evidence from the founding period that overcomes Hamilton’s clear statements, which he made to defend the proposed Constitution during the fight over ratification.” They then move on from the “originalist” portion of their argument. The implication is that Hamilton’s “clear statements” refute the Court’s conclusion, unless one can find other evidence to “overcome” them.

But nothing in the Trump Court’s opinion ostensibly disagrees with Hamilton’s statements. The Court does not dispute that criminal prosecution may follow impeachment and conviction, which after all is explicitly set forth in the Impeachment Judgment Clause of the Constitution itself. See U.S. Const., art. I, § 3, cl.7 (“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; but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”). Nor did the Court claim that the president is categorically excluded from the Impeachment Judgment Clause. It therefore acknowledges that in some cases Hamilton is correct that a former president would “be liable to prosecution and punishment in the ordinary course of law.”

What Chief Justice Roberts claims is that while the Impeachment Judgment Clause shows that a former president may be prosecuted, it “does not indicate whether . . . [he may] be prosecuted for his official conduct in particular.” Trump v. United States, 603 U.S. ___, slip op. at 38 (emphasis in original). Similarly, he cursorily dismisses other founding era evidence, including Federalist No. 69, on they ground they fail to “indicate whether [the president] may be prosecuted for his official conduct.” Id., slip op. at 39. Thus, the chief justice might say, a former president can be prosecuted for murdering his wife or robbing a bank, just not for official misconduct.

Delahunty and Yoo fail to respond to this argument, which is hard to explain. Perhaps they felt it was so self-evidently disingenuous that responding would undercut the remainder of the article, which praises the decision for various non-originalist reasons. Whatever the reason, they do not point out the obvious flaw in Roberts’s position, which is that impeachment is directed first and foremost at official misconduct. Hamilton’s audience was not concerned with the possibility that a president might murder his wife or rob a bank. They were worried about a president who might abuse his office for treasonous or corrupt purposes.

Although the impeachment provisions of the Constitution apply to a wide range of civil officers, they were drafted primarily with the president in mind. See, e.g., Raoul Berger, Impeachment: The Constitutional Problems 106 (1973) (“in the impeachment debate the Convention was almost exclusively concerned with the President”). Moreover, the prosecution of presidential criminality was expressly discussed at the Philadelphia Convention. Edmund Randolph, for example, objected to giving the president the pardon power in cases of treason, arguing that “[t]he President may himself be guilty” and “[t]he Traytors may be his own instruments.” James Wilson responded: “Pardon is necessary for cases of treason, and is best placed in the hands of the Executive. If he himself be a party to the guilt he can be impeached and prosecuted.” 2 The Records of the Federal Convention of 1787 626 (Max Farrand ed., 1903).

Delahunty and Yoo point out that under Trump “the President enjoys no immunity for private, unofficial acts.” But as they surely know, impeachment is not concerned primarily with such acts. The Impeachment Judgment Clause relates to prosecutions for conduct constituting “Treason, Bribery, or other high Crimes and Misdemeanors.” U.S. const., art. II, § 4. This phrase is aimed principally, if not exclusively, at official misconduct, particularly criminal conduct intimately tied to public office. The Randolph/Wilson colloquy, for example, is about a president who pardons traitors who had been acting as “his own instruments.” This envisions a president who is organizing a treasonous conspiracy under the authority of his office, not one committing treason as a private individual.

Historically there has been great controversy over whether ordinary criminal conduct (such as murder, rape or robbery) is even a proper subject of impeachment. The constitutional treatise writer William Rawle maintained that “[i]n general those offenses which may be committed equally by a private person as a public officer, are not the subjects of impeachment.” William Rawle, A View of the Constitution 215 (1829). Many others have held similar views. See Berger, Impeachment, at 202 (“It is generally said, though a few voices to the contrary are not wanting, that impeachment is limited to acts performed in an official capacity.”). It would make no sense to hold this view if it were understood the Impeachment Judgment Clause applied only to ordinary crimes. Conversely, if there had been even a minority position that the president was immune from prosecution for official acts, one would expect that this would have been advanced in arguments against the view that impeachment is limited to acts performed in an official capacity. The fact that no one argued for presidential official act immunity is therefore strong evidence of an understanding that no such immunity existed.

When Delahunty and Yoo say that Trump was contrary to the “strong originalist evidence” or the “textual and historical evidence,” therefore, what they are actually saying is that Trump is flatly inconsistent both with what the Constitution says and with what it has been uniformly understood to mean. The relative paucity of statements about the president’s potential criminal liability or immunity for official acts reflects not an “unsettled question,” as some have suggested, but the fact that no one thought this was a question at all. (As will be discussed in my next post, the closest I can find to anyone expressing doubt, publicly or privately, about the president’s accountability to the criminal law prior to 2021 is a single comment by Justice Rehnquist which, in context, underscores how marginal the idea was).

If Trump cannot be justified on originalist grounds, what “defense” can be offered of the decision? In my next post I will look at the non-originalist underpinnings of the opinion.

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God Save the United States and this Honorable Court

As reported by SCOTUSblog (among many others), Chief Justice Roberts today issued the statement that “[f]or more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision. The normal appellate review process exists for that purpose.”

The statement was, of course, made against the background of repeated impeachment threats made against federal judges who have had the audacity to issue rulings unfavorable to the Trump administration. Trump allies such as Elon Musk have been calling for judicial impeachments on social media for several weeks. At least four impeachment resolutions have been introduced so far in this Congress: one against Judge Amir Hatem Mahdy Ali of the U.S. District Court for the District of Columbia; one against Judge John D. Bates, also of the U.S. District Court for the District of Columbia; and two (see here and here) against Paul Engelmayer of the U.S. District Court for the Southern District of New York. In addition, earlier this morning President Trump demanded the impeachment of the Chief Judge of the U.S. District Court for the District of Columbia, James Boasberg, on Truth Social, and one of his congressional lackeys promptly boasted on social media that he was introducing an impeachment resolution for Boasberg as well.

The fact that Roberts chose now to opine on this matter may strike some as rather ironic. During the first Trump impeachment, at which Roberts presided in accordance with article I, §3, cl. 6 of the Constitution, he basically sat like a potted plant while studiously avoiding making rulings or offering opinions on the legal issues in the case (admittedly the role which tradition and the inclination of the Senate tend to demand). He declined to participate at all in the second Trump impeachment, thereby providing implicit support for the theory that a former president was not subject to impeachment. When faced in Trump v. Anderson with the argument that Trump’s conduct in connection with January 6 disqualified him from serving again as president, he advanced an interpretation of section 3 of the 14th amendment which came perilously close to making that provision a dead letter for the presidency. And finally, in Trump v. United States (a case I will be discussing further in upcoming posts), he endorsed a theory of presidential immunity which is wholly at odds with the Constitution and which, as a practical matter, allowed the former president to escape legal consequences for his allegedly criminal conduct in office.

Having failed repeatedly to exercise the authority which the Constitution  bestows upon him, the chief justice here chooses to speak on a matter which is arguably none of his business. To be sure, the opinion he offers is completely reasonable. As we discussed long ago, there is a strong constitutional norm or convention against impeaching judges for their rulings, regardless of how wrongheaded they are thought to be. But it is Congress, not the Court, which has established this principle, and the Court has recognized that the subject of impeachment is a political question constitutionally committed to Congress alone. Thus, if Congress were to decide it wants to start impeaching judges for their rulings, there is little that the chief justice or the Court could do to stop it.

Of course, there is no chance that an impeachment of any of these judges would be successful. I doubt that there are enough votes in the House to adopt articles of impeachment, much less to convict in the Senate. Indeed, I suspect that the House Judiciary Committee would be loath even to hold hearings on these judicial impeachments because that would provide a public forum for discussing the underlying cases which prompted the offensive rulings. I imagine House Democrats would love the opportunity to call for testimony from the likes of Elon Musk and the Alleged Acting Administrator of DOGE.

It is therefore doubtful that Roberts thought his statement was either necessary or helpful to forestall impeachment proceedings. It is more likely he was trying to assure lower court judges that he and his fellow justices will not countenance an organized campaign of intimidation against them. Whether that assurance will turn out to be worth the paper it is written on remains to be seen. Recent history provides ample reason for skepticism.

 

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The Blount Case and Congressional Precedent

         Today I want to return to a subject mentioned in a prior post relating to the 1799 impeachment trial of former Senator William Blount for acts committed prior to his expulsion by the Senate. Blount’s offenses, though not directly connected to his service in the Senate, were serious. Blount concocted a scheme to get himself out of financial difficulties by starting a war in which Indians and frontiersmen would attack Spanish Florida and Louisiana for the purpose of transferring those territories to Great Britain. A little light treason, as they might say on Arrested Development.

         Nonetheless, Blount’s impeachment was dismissed after the Senate, by a relatively close vote of 14-11, decided that it “ought not to hold jurisdiction of the said impeachment.” The Senate’s deliberations were secret and its order of dismissal did not specify why it had reached this decision. However, the conventional view or interpretation (as I will refer to it herein) is that the Senate was persuaded by Blount’s defense that senators are not “civil officers of the United States” and therefore not subject to impeachment.

         This conventional view has been challenged in modern times, most prominently by Professor Buckner Melton, a leading scholar of the Blount case. Professor Melton argues that because there were three different jurisdictional arguments made by Blount’s defense, it cannot be assumed that the Senate acted because of the “officer of the United States” issue:

Given all the possibilities the arguments had raised, the silence of the motion to dismiss as to the specific jurisdictional reasons for the dismissal is crucial. Given that silence, the dismissal cannot be taken clearly to mean that Senators aren’t civil officers or that they aren’t subject to impeachment. It may mean that; it may not. We simply don’t know.

Buckner F. Melton, Jr., Let Me Be Blunt: In Blount, the Senate Never Said that Senators Aren’t Impeachable, 33 Quinnipiac L. Rev. 33, 38 (2014). He argues that “nowhere in the Blount proceedings did the Senate establish any rule or precedent that Senators cannot be impeached.” Id. at 36.

         At the outset we should distinguish among three potential reasons why the decision in the Blount case might be important. The first is that as a founding era decision of the Senate, it could shed direct light on the original meaning of the Constitution. See, e.g., Marsh v. Chambers, 463 U.S. 783 (1983) (upholding legislative prayer as consistent with the First Amendment in large part based on congressional practice dating  back to the First Congress); id. at 790 (“In this context, historical evidence sheds light not only on what the draftsmen intended the Establishment Clause to mean, but also on how they thought that Clause applied to the practice authorized by the First Congress—their actions reveal their intent.”). For this purpose the weight given to the Blount decision might depend not only on the closeness of the vote, but also on who (i.e., framers and/or ratifiers) voted each way.

         A second and distinct reason for the Blount case’s potential significance is that signified by the conventional view, namely that the case constitutes an authoritative congressional precedent for the proposition that senators (and by extension members of the House) are not impeachable “civil officers of the United States.” Such precedents are recognized both by the courts and Congress, though it is fair to say that the courts have been ambivalent about the weight to give them. See, e.g., Arizona State Legislature v. Arizona Independent Redistricting Comm’n, 576 U.S. 787, 817-19 (2015) (citing favorable congressional precedent while suggesting that a contrary, but divided, precedent should not be relied upon due to likely political motives underlying it); id. at 824-25, 837-39 (Roberts, C.J., dissenting) (accusing majority of ignoring the controlling congressional precedent); Powell v. McCormack, 395 U.S. 486, 546-47 & n.85 (1969) (casting doubt on the value of congressional precedent, apart from its utility in illuminating the intent of the framers). On the other hand, Congress, the most important constitutional actor with regard to impeachment, tends to take its own precedents rather seriously. And as discussed further below, the Blount case (and the interpretation which followed it) should be understood as a particularly significant type of congressional precedent, one which satisfies the criteria for “constitutional liquidation” (a term which is not as ominous as it sounds).

         The third reason why the Blount case may be considered important, and the one which has given the case some attention in recent months, relates to the interpretation of section 3 of the 14th amendment. As we have discussed previously, the Blount case helps to explain why the framers of section 3 thought it necessary, or at least prudent, to separately enumerate senators and representatives, rather than assuming they would be covered by the general categories of “officer of the United States” and “office . . . under the United States.” It should be noted that the Blount case’s relevance here does not necessarily depend on its precedential status; what matters for the section 3 issue is what the framers of the 14thamendment thought the Blount case stood for, not whether their view was correct. Even those who question the Blount case’s precedential status, such as Professor Lederman, acknowledge that there was “ongoing debate and uncertainty” at the time of the 14th amendment’s framing about whether members of Congress were officers of the United States, which could explain the decision to separately enumerate members out of an abundance of caution.

         Our subject today, however, is only the second of these three reasons—the precedential status and effect of the Blount case apart from any bearing it might have on original meaning. I will endeavor to show, contra Professors Melton, Lederman and others, that the conventional view of the Blount case is in fact the correct one.      Continue reading “The Blount Case and Congressional Precedent”

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Two Lees, One Jackson, and Some Stonewalling

During the confirmation hearings for Judge (soon to be Justice) Ketanji Brown Jackson, she answered written questions for the record from a number of senators, including Senator Mike Lee. One of Senator Lee’s questions (hat tip: Ira Goldman) struck me as odd:

In Committee on the Judiciary v. McGahn, you took an extremely broad view of standing that all but ignored the previous elements of standing that you clung to in Federal Forest Resource Coalition (individualized injury). Setting aside the merits of the underlying controversy, your opinion never once mentions the phrase “political question.” Isn’t a case where the legislative branch is suing the executive branch a quintessential political question?

One problem with this question is that it was based on a false premise—as she pointed out in her answer, Jackson’s opinion in McGahn did in fact (more than once) use the phrase “political question” and it did so in the context of explaining why the political question doctrine was inapplicable to the case before her.  See, e.g., Comm. on the Judiciary v. McGahn, 415 F. Supp.3d 148, 178 (D.D.C. 2019) (“[T]he Supreme Court has specifically confirmed that not all legal claims that impact the political branches are properly deemed non-justiciable political questions.”).

To be sure, Jackson’s discussion of this issue was somewhat in passing. Her primary point was that the Justice Department’s legal arguments on standing and separation of powers sounded like attempts to evoke the political question doctrine without grappling with well-established limits on that doctrine. See id. at 177-78. But because the Justice Department (representing McGahn) did not actually assert that the political question doctrine applied, the judge presumably thought it unnecessary to discuss the doctrine in depth. Perhaps Lee should ask the Justice Department why it did not think McGahn presented a “quintessential political question.”

I think I can save him the trouble, though. There was a time when legal scholars (to the extent they thought about the issue) very likely would have agreed with the sentiment expressed in Lee’s question. As one noted constitutional expert wrote long ago: “In 1958, when the reach of the political question doctrine was far broader than it is today, no lesser an authority than Judge Learned Hand expressed the view that such a dispute [over a congressional subpoena] between two branches of government was a clear example of a nonjusticiable constitutional question.” Rex E. Lee, Executive Privilege, Congressional Subpoena Power, and Judicial Review: Three Branches, Three Powers, and Some Relationships, 1978 B.Y.U. L. Rev. 231, 266 (1978). For the last 60 years, though, the law has rejected such a broad view of political questions. Continue reading “Two Lees, One Jackson, and Some Stonewalling”

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What Would Xena Do? A Conscientious Senator Navigates the Impeachment Trial.

As you know, on February 9 the Senate voted 56-44 to proceed with the second impeachment trial of Donald Trump, finding that the former president “is subject to the jurisdiction of a court of impeachment for acts committed while President of the United States, notwithstanding the expiration of his term in that office.” This allows the trial to proceed, although some argue that there is no reason to continue since it is clear there cannot be enough votes to convict. After all, if a senator has concluded that there is no jurisdiction over the defendant, she logically cannot convict (or so it is argued).

The same issue arose in the 1876 trial of former secretary of war William Belknap, who resigned from office just hours before the House impeached him for corruption. The Senate then debated whether it had jurisdiction to try the articles of impeachment against “William W. Belknap, late Secretary of War.” By a vote of 37-29, almost exactly the same percentage breakdown as in Tuesday’s vote in the Trump trial (by my calculation the Belknap majority was .00060606 larger), the Senate voted in favor of jurisdiction. See Jonathan Turley, Senate Trials and Factional Disputes: Impeachment as a Madisonian Device, 49 Duke L. J. 1, 55 (1999).

Belknap’s lawyers then argued that the trial should not proceed. They contended the jurisdictional vote showed the respondent had been “substantially acquitted” because more than one-third of the Senate had by their votes “declared and affirmed their opinion to be that said plea of said respondent . . . was sufficient in law to prevent the Senate . . . from taking further cognizance of said articles of impeachment.” 3 Hinds’ Precedents §2461. The Senate, however, rejected this motion to dismiss and proceeded to conduct a lengthy trial (which nonetheless resulted in Belknap’s acquittal almost entirely based on the jurisdictional issue).

There are two reason why the Senate, as Professor Turley put it, “wisely rejected” Belknap’s effort to stop the trial. See Turley, 49 Duke L. J. at 55 n.240. First, even if Belknap’s acquittal were inevitable, there is value in conducting an impeachment trial that the Senate has determined it has the constitutional authority to conduct. As House manager George Hoar (later a prominent senator) argued in the Belknap case, holding a trial has value in itself, allowing for the airing of charges by “any responsible accuser” and the conduct of a “judicial trial” or “inquest” with a “process for the discovery of concealed evidence.” See Thomas Berry, Late Impeachment: An In-Depth Account of the Arguments at the Belknap Trial (Part IV) (Feb. 7, 2021). An impeachment trial can demonstrate the guilt or innocence of the accused, expose official misconduct, and serve as an affirmation of the standards of conduct expected for those entrusted with public office. See Turley, 49 Duke L. J. at 56 (explaining that “a trial of Belknap was needed as a corrective political measure” and “[r]egardless of outcome, the Belknap trial addressed the underlying conduct and affirmed core principles at a time of diminishing faith in government”).

Second, it is not inevitable (at least in theory) that a senator who votes against jurisdiction will also vote for acquittal. To see why, let us look at the matter from the perspective of our hypothetical conscientious senator, Xena. Senator Xena has sworn to do impartial justice in the impeachment trial of former president Trump and that is what she intends to do. Thus, she will approach the question of whether the Senate has jurisdiction to try a former president without fear or favor, uninfluenced by any constitutionally irrelevant considerations.

You may believe that such a senator could reach only one result, but most scholars who have studied the question (particularly those who did so before January 6) would acknowledge that it is, as Professor Kalt observed in his 2001 article, a “close and unsettled question.” I have made clear my view (which even Senator Cruz now shares) that the stronger argument favors late impeachment, but for purposes of this exercise we will assume Xena reaches a different conclusion. Continue reading “What Would Xena Do? A Conscientious Senator Navigates the Impeachment Trial.”

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Late Impeachments, Senate Resolution 16, and Some Relationships

Writing in the Wall Street Journal Sunday, Chuck Cooper argues that the Constitution permits late impeachments, i.e., the impeachment and trial of former officials who are accused of committing high crimes or misdemeanors while in office. Cooper acknowledges that forty-five Republican senators appear to have taken a different view by voting in favor of Senator Rand Paul’s point of order challenging the constitutionality of former President Trump’s impeachment trial, but he explains that “scholarship on this question has matured substantially since that vote.”

This remark occasioned some Twitter snark (o.k., it was from me) seeing as how the vote took place on January 26, which doesn’t leave much time for scholarship to have “matured.” It was pointed out to me that at least one useful piece of scholarship has emerged in that time, namely Thomas Berry’s four-part series on the question of late impeachment in the Belknap case. (Berry does not take a position on the issue, but very helpfully summarizes the relevant arguments on both sides).

For the most part, though, what has happened is that scholars have come forward to take positions for or against (mostly for) late impeachments, without necessarily adding to the actual scholarship on this issue. Having ten law professors or prominent lawyers make the same argument does not really make it any stronger, particularly when made in the context of a heated political dispute. Nonetheless, it can be important for senators who are looking for guidance or cover.

Republican senators (who are the main audience here) are naturally going to gravitate toward experts who are conservative/originalist, prominent constitutional lawyers, and/or well-known to them and their colleagues. Cooper qualifies on all of these counts. He is a highly prominent and successful constitutional litigator, and he has strong ties to Senate Republicans. (For example, Ted Cruz was one of the first associates Cooper hired when he formed his own law firm back in the 1990s.)

Of course, senators like Cruz, Josh Hawley and Mike Lee consider themselves to be fully qualified to make their own constitutional judgments, but it will be hard for them to deny that the issue of late impeachments is, at the very least, a close question when so many prominent conservative/libertarian legal scholars have come down in pro-late impeachment camp. These scholars include former federal judge Michael McConnell, who argues that the Constitution allows former officials to be tried in the Senate so long as they were impeached while in office, as well as many others (Andrew McCarthy, Ramesh Ponnuru, Dan McLaughlin, Keith Whittington, Jonathan Adler, Michael Stokes Paulsen, Ilya Somin and Steven Calabresi, to name a few), who argue for the constitutionality of late impeachments generally.

Of course, there are legal experts who have come out against late impeachments. Perhaps the most prominent is Phillip Bobbitt, a well-known constitutional scholar (and, it should be noted, someone who is not an originalist and is not associated with Trump or conservative politics). Another is J. Michael  Luttig, a well-respected conservative former judge (for whom, incidentally, Cruz clerked). Conservative legal scholars John Yoo and Robert Delahunty have also written a rather overstated originalist argument against the constitutionality of late impeachments. Jonathan Turley, who had written favorably of late impeachments in 1999, has now moved to a position of neutral, leaning against. And two characters from Trump’s last impeachment, Alan Dershowitz and John Bolton, have weighed in against late impeachments. There undoubtedly are other legal experts (however broadly that term is construed) who have expressed similar views, though the ranks are surely much thinner than the pro-late impeachment side.

As noted, numbers alone do not establish who is correct. Moreover, Republican senators who are inclined to oppose impeachment may discount the views of the pro-late impeachment experts on the grounds that they have been influenced by the atrocious nature of Trump’s offense and that (as mentioned in my last post) the facts of the case seem like they were dreamed up by a law professor to support late impeachment. Hard cases make bad law and all that.

Whether this is fair or not, it is worth specifically noting the views of those who have thought and written about this question prior to January 6. Whittington, McCarthy and Turley are in this category, and they all had favored late impeachment. As mentioned in my last post, in fact, while relatively few scholars had addressed themselves to this question even in passing, the ones who did seemed to overwhelmingly support the constitutionality of the practice. One important but partial exception is Justice Story, about whom more later.

To my knowledge, however, the only scholar who has truly looked at this issue in depth and outside the context of a particular controversy is Professor Brian Kalt. (Kalt specializes in odd constitutional issues, including the 25th amendment and late impeachments, and boy did he hit the jackpot with the Trump administration.) If you want an exhaustive and even-handed discussion of the arguments for and against late impeachment, you need to read Kalt’s 2001 article on the subject, in which he concludes that while the “question of late impeachability is close and unsettled,” the better view is that “Congress can pursue late impeachments, based on an analysis of the text, structure, historical underpinnings, and precedent of the Constitution’s impeachment provisions.”

All of which brings me to Senate Resolution 16, which is the brief resolution that the Senate adopted on January 26 in connection with “the article of impeachment against Donald John Trump, President of the United States.” That the resolution refers to Trump in this manner reflects only, I assume, the fact that the article of impeachment is addressed to Trump as president because, of course, Trump was indeed president at the time the House impeached him. Somewhat more interesting, though, is that the resolution states it was adopted “pursuant to rules III and IV fo the Rules and Practice When Sitting on Impeachment Trials,” which are the Senate’s standing rules on impeachment. Rule IV deals exclusively with presidential impeachments and provides that the chief justice shall preside. Unless the reference to Rule IV was a mistake or oversight, it seems that the Senate is still leaving open the possibility that this will be conducted as a presidential impeachment trial. Continue reading “Late Impeachments, Senate Resolution 16, and Some Relationships”

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Some Legal Questions About the Second Trump Impeachment Trial

The second impeachment of Donald Trump raises some significant legal issues, which I sketch out below. All I can say is that we could have avoided a lot of trouble if anyone ever listened to me.

Can the Senate Try a Former President? This is, of course, the most fundamental question. While Trump was president when the House impeached him (and still is for a few more hours), his term will have ended by the time the Senate trial begins. Trump and his supporters (as well as some legal scholars) argue that this precludes further proceedings because impeachment applies only to “[t]he President, Vice President and all civil Officers of the United States,” and Trump will no longer be any of these on January 20. Other legal scholars, such as Professors Keith Whittington and Steve Vladeck,  argue that the constitutional text does not expressly limit impeachment to current officeholders and the constitutional purpose, structure, history and precedent support “late impeachments,” that is, impeachments and/or trials of former officeholders for high crimes and misdemeanors relating to their time in office.

In the heat of the current moment it may be difficult to reach an objective answer to this question, which has long been debated in Congress and the legal academy. So it is helpful to review the past scholarship on this issue, which was written at a time when there were no immediate political stakes involved. CRS has a good summary of the arguments on both sides and notes that “[a]lthough the text is open to debate, it appears that most scholars who have closely examined the question have concluded that Congress has authority to extend the impeachment process to officials who are no longer in office.” Similarly, Professor Gerhardt has noted a “surprising consensus” among legal experts “that resignation does not necessarily preclude impeachment and disqualification.” Michael J. Gerhardt, The Federal Impeachment Process: A Constitutional and Historical Analysis 79 (1996). Professor Kalt’s 2001 article, likely the most comprehensive treatment of this subject, finds that while “late impeachability is a close and unsettled question,” the better view is that “Congress can pursue late impeachments, based on analysis of the text, structure, historical underpinnings, and precedents of the Constitution’s impeachment provisions.” Brian C. Kalt, The Constitutional Case for the Impeachability of Former Federal Officials: An Analysis of the Law, History, and Practice of Late Impeachment, at 3 (Oct. 24, 2001). And for what it’s worth I tend to agree. See Could Congress Impeach Judge Bybee?, Point of Order (Apr. 20, 2009) (“Although it is seldom worth Congress’s while to conduct an impeachment trial for a former official, this is a matter of prudence, not constitutional power.”).

It should be noted here that the facts of the current situation seem like they were dreamed up as a hypothetical to support late impeachments. Trump did not commit (or at least complete) the alleged impeachable offense until January 6, when there were barely two weeks remaining in his term. It would have been virtually impossible to impeach and convict within this time frame. Even if the trial had commenced while Trump was still president, it would be extremely difficult to complete before noon on January 20. Attempting to compress the trial within the available time would mean short changing the House managers and/or the defense in terms of presenting their cases, and would give the defense an incentive to delay as much as possible in order to run out the clock. It seems borderline absurd to read the Constitution as imposing such artificial limitations on a trial of the gravity and consequence described by Alexander Hamilton in Federalist No. 65, which can subject the offender “to a perpetual ostracism from the esteem and confidence, and honours and emoluments of his country.”

Furthermore, if there were ever presidential conduct which warranted the imposition of the constitutional penalty of disqualification from future office, it is that with which Trump is charged. Professor Chafetz has argued that the paradigmatic case of impeachable conduct is an effort to illegally use presidential power to entrench oneself in office. See Josh Chafetz, Impeachment and Assassination, 95 Minn. L. Rev. 347, 422 (2010). Trump’s (alleged) effort to overturn the election results by falsely claiming fraud, pressuring state election officials to change the results, and inciting a violent mob to disrupt the electoral vote count in Congress goes far beyond anything any president has been accused of in this regard. Yet under the anti-late impeachment theory, there would be no way of disqualifying a president who engaged in such behavior as a last-ditch effort to hold on to power. Trump would be free to seek the presidency in the future and use exactly the same tactics again. To interpret the Constitution to require this result makes very little sense.

Who Presides at the Impeachment Trial of a Former President?  The Constitution provides that “[w]hen the President is tried, the Chief Justice shall preside.” Does this requirement apply to the trial of a former president?

Professor Baude has a good analysis of this issue here. He points out that the last time there was an impeachment trial of a former official (ex-Secretary of War William Belknap in 1876) two arguments were made in favor of late impeachments. One is what we just discussed, namely that impeachable officials remain subject to impeachment and disqualification even after they leave office so long as the offense “relates back” to the office they held. The other is that anyone could be impeached, and that the Constitution’s reference to impeachable officials is only for the purpose of prescribing a particular punishment (removal) that must be imposed in such cases.

If the latter were correct, then presumably Trump could be impeached in his capacity as a private citizen and there would be no need for the chief justice to preside. However, the “relating back” theory is a far stronger argument and the basis of all of the scholarship discussed above. This does not necessarily mean that the chief justice must preside, but it tends to support that conclusion. The issue is murky, but in my view the appropriate course would be to ask the chief justice to preside.

From the standpoint of the House managers, this raises something of a tactical dilemma. If the chief justice does not preside, it creates the risk that Trump could later attack the verdict as improper or use the chief justice’s absence as evidence that the “relating back” theory is wrong. On the other hand, if the chief justice is asked to preside, there is some risk that he would decline (see below), which would undermine the House’s position. It might therefore be in the interest of the House managers not to request that the chief justice preside but also not object if the defense makes this request. That way if Trump does not object to a different presiding officer (whether it be the vice president or the president pro team), it will be difficult for him to attack the process at a later date.

Who Decides Who Presides? If the Senate decides, either on its own or at the request of one of the parties, to request the chief justice’s presence, is the chief justice obligated to preside? It seems to me that the answer is no. If the Constitution does not (in his view) require him to preside at the trial of a former president, it seems to me that Chief Justice Roberts would be within his rights to decline. He might believe that it is improper or unconstitutional for the chief justice to preside over an impeachment trial except in the specific instance (the trial of a sitting president) specified by the Constitution.

It is certainly possible that Roberts would not raise this issue sua sponte, but would only address it if one of the parties objected. It is also possible that he would defer to the Senate’s judgment on the matter even if one of the parties did object. It is not obvious to me, however, why the Senate’s judgment should control on an issue of what the chief justice’s responsibilities are.

It is unlikely, but not impossible, that Roberts could address the issue of whether a former official can be tried at all. In other words, he could decline to preside on the ground that a former official is not subject to impeachment, and therefore there is no trial at which he could constitutionally preside. It seems far more likely, however, that he would assume, without deciding, that a former official could be tried.

(In theory, Roberts could also decide to preside and then rule on a motion to dismiss for lack of jurisdiction. Based on how deferential to the Senate he was while presiding over Trump’s first impeachment trial, however, this seems even less likely.)

Can Trump Challenge the Trial in Court? It is extremely unlikely that Trump could convince any court to interfere with the Senate’s conduct of the trial while it is ongoing. Among other reasons, any attempt to sue or enjoin the Senate would be barred by the Speech or Debate Clause.

A different situation would be presented once Trump was convicted by the Senate. If Trump loses benefits (e.g., his pension), he could sue the United States or whatever official(s) are responsible for providing these benefits to former presidents. This was how former United States District Judge Walter Nixon challenged his impeachment (hat tip: Ira Goldman). Such a suit would not be barred by the Speech or Debate Clause.

Professor Vladeck argues, however, that judicial review of the Senate’s verdict would be precluded by the Supreme Court’s decision in Judge Nixon’s lawsuit, in which it held that his challenge to the procedures followed by the Senate in his impeachment trial constituted a nonjusticiable political question. Chief Justice Rehnquist’s opinion in that case emphasizes that the judiciary was intended to have no role in impeachments. See Nixon v. United States, 506 U.S. 224 (1993).

It is not at all clear, however, that the Nixon case governs the question whether former officeholders may be impeached or convicted. That is a straightforward legal question of the kind found to be justiciable in Powell v. McCormack, 395 U.S. 486 (1969), which held that the question of what “qualifications” were subject to the House’s power to judge the qualifications of its members was justiciable. Unlike the question of what constitutes a proper impeachment trial, which involves discretionary judgments lacking judicially discoverable and manageable standards, the issue of late impeachability presents a yes or no question susceptible of judicial resolution.

Would Trump’s Disqualification be Judicially Reviewable? Assuming that for some reason Trump did not or could not challenge the Senate’s verdict based on loss of pension or benefits, he could also seek to challenge his disqualification (assuming the Senate imposes disqualification) in court. Presumably such an issue would not be ripe for judicial review unless and until Trump sought to attain an office from which the disqualification purported to bar him.

Most likely, this would arise in the context of a 2024 presidential bid. If, for example, state officials refused to put Trump’s name on the ballot, either for the primary or general election, he could sue to obtain ballot access, arguing that his disqualification was invalid because the Senate lacked jurisdiction over him as a former president. This would present the same justiciability issue discussed above and, for the reasons indicated, I think the courts probably would review Trump’s claim on the merits.

In addition, Trump could argue that the Senate’s judgment of disqualification, even if valid, does not prevent him from holding the office of president because that office is not an “Office of honor, Trust or Profit under the United States” within the meaning of the Disqualification Clause. This, of course, is the Tillman/Blackman theory we have discussed many times (see, e.g., my last post) and it seems to me that proposition would be clearly justiciable since it merely involves interpreting the meaning of the constitutional disqualification that the Senate imposed.

It is, however, still very, very wrong.

 

 

 

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Does Section 3 of the Fourteenth Amendment Apply to the Presidency?

It will come as no surprise to readers of this blog that Professors Tillman and Blackman have written a controversial piece about the current troubles in which, among other things, they reiterate their view that the Constitution’s Disqualification Clause does not bar an impeached, removed and disqualified official from the presidency because that office does not constitute an “Office of honor, Trust or Profit” within the meaning of Article I, § 3, cl. 7. See Blackman & Tillman, Can President Trump be Impeached and Removed on Grounds of Incitement (Jan. 8, 2021) (“The Senate has no power to disqualify a defendant from holding elected federal positions, such as the presidency.”) (emphasis in original).

I will not bore you by restating the reasons why I think this view is very, very wrong. You can read them ad nauseam by following the links in my most recent post on the subject.

The same issue arises, however, in regard to another constitutional provision which, as far as I recall, I have not addressed before. Specifically, section 3 of the Fourteenth Amendment (an obscure provision which is enjoying its moment in the sun) provides:

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 office 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.

(emphasis added).

I should state at the outset that I am extremely skeptical that President Trump’s behavior, as atrocious and impeachable as it may be, constitutes “insurrection or rebellion” or other conduct covered by this provision. Assuming for the sake of argument that it is, however, the italicized language raises two questions. First, is the president “an officer of the United States” subject to the bar of section 3 if he engages in the proscribed conduct? Second, is the presidency an “office, civil or military, under the United States” which a covered officer is barred from holding?

I assume that Tillman and Blackman would say no to both questions, although I am not entirely sure. Their argument is that the meaning of “officer of the United States” and office “under the United States” as used in the original Constitution applies only to appointed, not elected, offices and therefore excludes the presidency (and vice presidency). Whether they would say that this meaning was understood by anyone as of the time the Fourteenth Amendment was drafted is less clear. As I have pointed out, the view they ascribe (based on highly ambiguous historical practice) to a few members of the founding generation seems to have vanished without a trace by 1834 at the very latest.

It is interesting nonetheless that the only example I have found anyone actually expressing the Tillman/Blackman view (prior to Professor Tillman himself) comes in the debate over section 3 in the Senate on June 13, 1866. During the debate over the draft constitutional language, the following colloquy occurred:

Mr. Johnson. But this amendment does not go far enough. I suppose the framers of the amendment thought it was necessary to provide for such an exigency. I do not see but that any one of these gentlemen may be elected President or Vice President of the United States, and why did you omit to exclude them? I do not understand them to be excluded from the privilege of holding the two highest offices in the gift of the nation. No man is to be a Senator or Representative or an elector for President or Vice President–

39 Cong. Globe 2899 (1866) (emphasis added).

Here we have a U.S. senator suggesting that the disability imposed by section 3 would not exclude anyone from the “privilege of holding the two highest offices” in the land, even though it on its face applies to “any office, civil or military, under the United States.” Admittedly, its just one man’s opinion, but to my knowledge it is closer than anyone else (pre-Tillman) has ever come to expressly endorsing the Tillman/Blackman view of “office under the United States.”

Naturally a fierce debate ensued:

Mr. Morrill. Let me call the Senator’s attention to the words “or hold any office, civil or military, under the United States.”

Mr. Johnson. Perhaps I am wrong as to the exclusion from the Presidency; no doubt I am; but I was misled by noticing the specific exclusion in the case of Senators and Representatives.

39 Cong. Globe 2899 (1866).

Ok, “oops, I was wrong” might not qualify as a fierce debate, but it is as much of a debate as you will find anywhere on this issue between 1787 and 2008 or so. No doubt if the 39th Congress had any doubt that the language flagged by Senator Johnson was ambiguous, it would have been clarified. After all, there is no chance that the framers of the Fourteenth Amendment intended to prevent former rebels from serving as presidential electors but not as the president. Of course, the same can be said of the framers of the Constitution. Clearly it could not have been intended that a president be impeached, removed from office, and disqualified from serving in any federal office other than the presidency. Similarly, it could not have been intended that presidents be able to receive foreign emoluments or titles of nobility.

The question of whether the president or vice-president is an “officer of the United States” within the meaning of section 3 is somewhat closer. As was pointed out during the same Senate debate, section 3’s language regarding the individuals whose violation of oath triggers the disability tracks the Constitution’s Oath Clause in Article VI, which requires that “all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution.”

There is a plausible structural argument that the term “officer of the United States” as used in Article II refers to individuals appointed and commissioned by the president, which would exclude the vice president and the president himself. Whether or not this is correct, it does not follow that the phrase used elsewhere in the Constitution is necessarily so limited. For example, while it is true that the president’s oath is separately provided for in Article II, the vice president’s is not; therefore, interpreting Article VI’s reference to “executive . . . Officers . . . of the United States” as excluding the president and vice president would mean the nowhere in the Constitution is the vice president’s oath provided for, a result that Tillman finds a good deal more plausible that do I. And while Tillman’s view of the Oath Clause has some support from a 1974 OLC memorandum written (or at least signed) by Assistant Attorney General Antonin Scalia, as I explain here that memo’s reasoning leaves much to be desired.

It also seems unlikely that the framers of section 3 would have deliberately omitted the president and vice president from the list of officials prohibited from engaging in insurrection and rebellion, although this conclusion seems more reasonable if one assumes their focus was entirely on the immediate past rebellion rather than potential future ones. In short, the argument that the president is not an “officer of the United States” within the meaning of section 3 seems to me to be quite weak, but not as weak as the claim that he holds no “office under the United States” under section 3 or the Disqualification Clause.