Category: Impeachment

To return to a subject from a few weeks ago, Seth Tillman argues that the Disqualification Clause does not authorize the Senate to disqualify an impeached and removed official from serving as president. See The Originalist Who Came In From The Cold: A “New” View of the Incompatibility Clause, the Removal & Disqualification Clause, and the Religious Test Clause–A Response to Professor Josh Chafetz’s Impeachment & Assassination.  The clause authorizes the Senate to disqualify a removed official from holding an “Office of honor, Trust or Profit under the United States,” but Tillman contends that this term does not embrace the presidency.  Thus, a disqualified official like Judge Porteous would remain eligible for the presidency.

Tillman’s argument begins with the premise that the President is not an “Officer of the United States” within the meaning of Article II.  To substantiate this position, he points to the language of the Impeachment Clause, which states that the “President, Vice President, and all civil Officers of the United States” are subject to impeachment and removal.  Tillman points out that if the President and Vice President were considered to be “civil Officers of the United States,” the clause would more naturally refer to “all other Civil Officers.”   Moreover, a draft of the Constitution did use that very term, but it was removed by the Committee of Style, suggesting that the drafters deliberately chose not to leave the implication that the President is a “civil Officer of the United States.”  See S. Tillman, Opening Statement: Why President-Elect Obama May Keep His Senate Seat After Assuming the Presidency, University of Pennsylvania Law Review PENNumbra, Vol. 157, pp. 134, 137-38 (2008).

While this aspect of Tillman’s argument is controversial, I think it is persuasive. It is supported not only by the text of the Impeachment Clause, but the Commissions Clause, which provides that the President shall commission “all the officers of the United States.”  As Tillman notes, Presidents have never commissioned themselves or their Vice Presidents.  Similarly, Presidents and Vice Presidents are not appointed in accordance with the Appointments Clause, which would seem to be required if they were “officers of the United States.”

But granting that the President is not an “officer of the United States” under Article II, does it follow that he does not hold an “Office under the United States” within the meaning, for example, of the Incompatibility Clause of Article I?  Given that the President clearly holds an “office” (see, eg, Art. II, sect. 1, cl. 1, President “shall hold his Office” during a four year term), it is not obvious, as a textual matter, why his office would not be one “under the United States.”  The fact that the President is not treated as an “officer of the United States” for the specific purposes of Article II would seem to shed little light on the question.

Moreover, if the President does not hold an office under the United States, it would have a number of unsettling consequences: (1) Incompatibility Clause– as Tillman acknowledges (indeed proclaims), a sitting President would be able to simultaneously serve in Congress; (2) Foreign Emoluments Clause– a President would not be covered by this clause and would therefore be permitted to receive gifts and emoluments from foreign governments.  This seems like a peculiar exclusion, particularly since Article II expressly prohibits the President from receiving emoluments (other than his congressionally prescribed compensation) from either the United States or any of the states; and (3) Disqualification Clause– the Senate could not disqualify a convicted official from serving as president (or vice president) in the future.  Thus, if a sitting President were impeached, convicted and removed from office, he could be barred from holding appointed offices (such as federal judgeships or cabinet positions), but not from again serving as president.  

Tillman argues that the fact that these results seem absurd (or nearly so) to us does not necessarily mean that they would have seemed so to the Framers.  Fair enough, but there is little reason (at least that I can see) to think that the Framers would have found these results any more sensible than we do.  So, for the time being at least, I have to stick with the conventional wisdom on this one.

In Impeachment and Assassination, Professor Josh Chafetz makes the inventive argument that impeachment, at least presidential impeachment, is best viewed as a metaphorical form of political assassination.  Chafetz argues that impeachable offenses should be viewed as “assassinable” offenses, by which he means the type of offenses that warranted assassination in historical instances known to the Framers.  To illustrate the scope of such offenses, he provides a fascinating description of two examples that were foremost in the mind of Benjamin Franklin– the assassination of Julius Caesar and the execution of Charles I.

Chafetz’s provocative theory is challenged by Seth Tillman in The Originalist Who Came In From The Cold: A “New” View of the Incompatibility Clause, the Removal & Disqualification Clause, and the Religious Test Clause–A Response to Professor Josh Chafetz’s Impeachment & Assassination.  Tillman focuses on Chafetz’s claim that impeachment (and conviction) is the equivalent of “political death.”  Tillman argues that impeachment is unlike death, even metaphorically speaking.

I tend to agree with Tillman on this.  To begin, being a former president, even one who is a private citizen, is not quite political death.  How much like political death it is will depend on a variety of circumstances, of which impeachment is only one.  No president, of course, has ever been impeached and removed, but former President Clinton (impeached but not removed) seems to be enjoying quite an influential post-presidency, although he holds no formal office.

Moreover, as Chafetz acknowledges, the Constitution does not empower the Senate to disqualify anyone from holding state office.  Tillman points out that this means a disqualified official can serve in positions such as Governor or state legislator, offices which are not only significant in themselves but may involve the exercise of powers that affect the federal government (such as a Governor’s appointment of an interim US senator to fill a vacancy).  While the fact that disqualification is not applicable to state officers is understandable on federalism grounds, it tends to attenuate the “impeachment as political death” metaphor.

Tillman points to a number of other positions that a disqualified officer might hold; these include White House advisor (at least if one accepts the proposition that such an advisor is not an “officer” under the Appointments Clause), presidential elector, and delegate to an Article V convention to propose amendments (or to a state ratifying convention).  And, President Clinton might add, First Spouse.

Even more tellingly, as discussed in a prior post, a disqualified officer is still eligible to serve in Congress.  Indeed, a current Member of Congress, Representative Alcee Hastings, was formerly a federal judge who was impeached and removed from office (though not disqualified).  Hastings’ post-impeachment experience can hardly be called a political death.

Perhaps most importantly, the Constitution does not require that the Senate disqualify those who are impeached and convicted.  Thus, if the Senate were ever to remove a sitting President, it is free to decide that his “high crimes and misdemeanors” do not merit disqualification at all.  In that case, the former president would clearly suffer no “political death.”

All of which suggests that the “impeachment as political death” metaphor is considerably  overstated.  Tillman, however, is not content to stop there.  He contends that the Disqualification Clause does not authorize the Senate to disqualify anyone from future service as president (or vice president).  This contention I will address another day.

Article I provides that “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.”  It has long been held by the Senate that disqualification is not an automatic consequence of conviction and removal, but an additional punishment that the Senate may impose in its discretion.  In the case of Judge Porteous, the Senate imposed disqualification for only the third time in history (the other instances were Judge Humphreys in 1862 and Judge Archbald in 1913).

Porteous, therefore, is disqualified from ever holding an “Office of honor, Trust or Profit under the United States.”  But what constitutes such an office?  Over at the Volokh Conspiracy, Professor Somin expresses the view that Porteous is prohibited from serving in Congress, while Professor Volokh maintains that a Senator or Representative does not hold an office of “honor, trust, or profit under the United States.”

Volokh’s position is supported by Article II, section 1, clause 2, which prohibits any “Senator or Representative, or Person holding an Office of Trust or Profit under the United States” from serving as a presidential elector.  This suggests that a Member of Congress does not in fact hold a office of trust or profit as the Constitution uses that term.  More significantly, the Incompatible Offices Clause (Article I, section 6, clause 2) provides that “no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.”  As a textual matter, it is difficult to see how one could hold an office of honor, trust or profit under the United States (within the meaning of the Disqualification Clause) without simultaneously holding an “Office under the United States” within the meaning of the Incompatible Offices Clause.  The logical conclusion, therefore, would seem to be that a Member of Congress holds neither.

Somin’s position, on the other hand, seems to be based on the instinct that it simply would make no sense to disqualify an impeached and convicted official from serving in any executive or judicial position in the federal government, no matter how minor, but not to disqualify him or her from serving in Congress.  Somin does not offer a textual defense of this position, and, although other scholars seem to believe as he does, in most cases they appear to be making an assumption, rather than grappling with the actual text of the Disqualification Clause.  See, for example, Michael Gerhardt, The Federal Impeachment Process 60 (1996) (suggesting that impeached and removed federal judge Alcee Hastings was able to subsequently serve in Congress only because the Senate had failed to disqualify him) and William McKay & Charles W. Johnson, Parliament and Congress 515 n.43 (2010) (same).  

In Democracy’s Privileged Few 280-81 n.68 (2007), Professor Josh Chafetz endorses the Volokh view and contends that those who read the Disqualification Clause as extending to congressional seats are guilty of a “sloppy” reading of the Constitution.  Seth Tillman, in his recent paper, The Originalist Who Came in From the Cold: A “New” View of the Incompatibility Clause, the Removal and Disqualification Clause, and the Religious Test Clause– A Response to Professor Josh Chafetz’s Impeachment and Assassination 17 n.35, indicates that the Volokh/Chafetz position “appears to be the majority view in legal academia today,” a view Tillman evidently shares.

There are a couple of possible arguments against the Volokh/Chafetz view.  The first is that it leads to a result that the Framers could not have intended.  Why allow the Senate to disqualify an officer from serving in any judicial or executive branch position, but not from serving in Congress?  

I think there are quite plausible responses to this question.  I would begin with the fact that the Constitution specifically empowers each house of Congress to expel its own members, but does not authorize it to disqualify the member from future service in Congress.  This was no accident– the Framers were well aware of the John Wilkes case in England, where a Member of Parliament was repeatedly expelled and then re-elected by his constituents.  The Framers were sympathetic to Wilkes and would not have wanted to foreclose an expelled Member of Congress from seeking to regain his seat (in fact, they considered, but ultimately did not adopt, a provision prohibiting expelling a member twice for the same offense).  See Chafetz, Democracy’s Privileged Few 210-11.

Given this, it makes sense that the Disqualification Clause would not extend to congressional seats.  After all, if an expelled member cannot be disqualified despite having committed misconduct while in Congress, it would seem incongruous to disqualify a former executive or judicial officer from running for a congressional seat.  Moreover, the same democratic logic would argue in favor of allowing a state or local constituency to make the final determination as to whether it wanted to be represented by the former officer, with full knowledge of the fact that he (or she) had been impeached and removed.  Just as the particular constituency might disagree with the House or Senate’s expulsion decision, so it might disagree with the House’s decision to impeach and the Senate’s to convict.

Note that this argument is, if anything, even stronger if one accepts the minority view that Members of Congress themselves are subject to impeachment.  If the Framers did not want to prohibit a member from running for re-election after being expelled, it hardly makes sense that they would have a different view regarding impeachment.  Moreover, regardless of whether impeachment is available for Members or not, it seems unlikely that the Framers would have given the Senate the final word on whether a removed officer could run for a seat in the House.

A stronger argument against the Volokh/Chafetz position may be that it is inconsistent with how Congress has interpreted another provision of Article I, which provides that “no Person holding any Office of Profit or Trust [under the United States], shall without the Consent of Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Price, or foreign State.”  This provision has been interpreted to apply to Members of Congress, and the Foreign Gifts and Decorations Act, 5 USC 342, which sets forth how foreign gifts and decorations may be accepted, applies to Members.

This interpretation of the Foreign Emoluments Clause does appear to be inconsistent with the Volokh/Chafetz position.  But the textual inferences discussed earlier still strongly suggest that a Member does not hold an “office of honor, trust or profit” under the United States.  Thus, it may simply be that the traditional interpretation of the Foreign Emoluments Clause has been mistaken.

In my judgment, Volokh and Chafetz appear to be correct.  A disqualified officer is not prohibited from running for Congress.  If former Judge Porteous can convince the voters to elect him, he could join former Judge Hastings on Capitol Hill.