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Yoo and Malcolm on Section 3 of the 14th Amendment

Yesterday I listened the Federal Society webcast featuring Professor John Yoo and John Malcolm of the Heritage Foundation discussing legal and constitutional issues of presidential power. Part of the discussion focused on section 3 of the 14thamendment and whether that provision is applicable to former president Donald Trump. Yoo expressed a great deal of skepticism that section 3 applies to the presidency at all (and Malcolm agreed, though somewhat less definitively). Yoo pointed to the language of section 3 which (you may recall) says:

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 officer 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).

Professor Yoo maintained that the fact the president and vice president are not expressly mentioned in either the list of “banned” or of “disqualification triggering” offices/positions is strong evidence that those offices are not covered by section 3. He particularly noted that because section 3 explicitly mentions presidential electors the framers of the 14th amendment must have made a conscious decision not to include the presidency and vice presidency.

With all due respect, this makes sense only if you haven’t thought about this issue more than a moment or two. To begin with, if the framers of the 14th amendment wished to exclude the presidency and vice presidency, they must have had a reason for doing so. I have not heard anyone suggest a plausible reason (or an implausible one, for that matter) why the president and vice president would be excluded, while presidential electors and other relatively insignificant positions would be included. See Saikrishna Bangladore Prakash, Why the Incompatibility Clause Applies to the Office of the President, 4 Duke J. L. & Pub. Pol’y 35, 43 (2009) (noting that reading section 3 “to require a congressional waiver for former confederates serving as postmasters or corporals but not to require such a waiver when a turncoat wished to serve as President would be rather strange”).

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Steve Calabresi is Deeply Confused

Let me begin by saying that I do not know Professor Calabresi and have nothing against him as a person or a legal scholar. Moreover, the title of this blog post is not meant to suggest that his legal conclusion in the matter we are about to discuss is obviously wrong. I think it is probably wrong, but I do not think it is frivolous or entirely implausible. What I find confused, and frankly a bit unsettling, is the reasoning process that has led Calabresi to this conclusion.

Starting our story at the end, as it were, on September 16, 2023, Professor Calabresi wrote a blog post concluding that because Donald Trump was not and had not been “an officer of the United States” within the meaning of section 3 of the 14th amendment, he cannot be disqualified from future office under that provision. Calabresi favorably notes a recent article by Professors Seth Barrett Tillman and Josh Blackman which addresses this point, although he does not indicate whether his own view on this particular issue was influenced by their work.

As Calabresi acknowledges, slightly more than a month earlier, on August 10, he had written a blog post flatly stating that Trump falls within section 3’s ban on officeholding and therefore “is disqualified from being on any primary or general election ballots next year.” Calabresi says that he has changed his mind because of the “officer of the United States” issue, and he also suggests that he is less certain about whether the events of January 6 constitute an “insurrection” at all (I also have some doubts on the latter point, but that is not the subject of today’s post).

As you may recall from my last post, section 3 presents two issues with respect to the presidency in particular: (1) whether the president is an “officer of the United States” and therefore holds a disqualification-triggering office; and (2) whether the presidency is an “office under the United States” and therefore is an office which a disqualified official is banned from holding. Although Calabresi did not directly address either of these issues in his August 10 post, he implicitly answered both questions in the affirmative. Now, however, he has changed his mind, but only (it appears) as to the first issue. Presumably Calabresi still believes that the presidency is an “office under the United States” for purposes of section 3 (and, as we shall see, for purposes of other constitutional provisions).

Calabresi acknowledges in his September 16 post that he once believed the president is an officer of the United States. He refers to a 1995 article in which he said the “best reading” is that the president and vice president are “officers of the United States” as that term is used in the Appointments and Commissions Clauses of Article II. Steven G. Calabresi, The Political Question of Presidential Succession, 48 Stanford L. Rev. 155, 159 n.24 (1995). One problem with this reading is that the Commissions Clause provides the president “shall Commission all the Officers of the United States” and in historical practice neither the president nor vice president have received commissions, but Calabresi explained that this could “be deemed an oversight.” Id.

 According to Calabresi, his decades of academic work on the presidency have convinced him that this opinion of his “foolish youth” (as he puts it) was wrong and that “the words ‘officer of the United States’ are a legal term of art, which does not apply to the President.” Calabresi does not say when he reached this conclusion, but it is worth noting (as he does not) that he still held his original opinion at least as of 2008. See Seth Barrett Tillman & Steven G. Calabresi, The Great Divorce: The Current Understanding of Separation of Powers and the Original Meaning of the Incompatibility Clause, 157 U. Pa. L. Rev. PENNumbra 134 (2008).

In The Great Divorce (don’t ask me why it is called that) Tillman and Calabresi debate whether the Incompatibility Clause applies to the president. As readers of this blog are well aware, the Incompatibility Clause provides that “no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.” According to Tillman, the presidency is not an “office under the United States” and therefore there is no constitutional prohibition against a person serving as president and a member of Congress at the same time. In the debate with Calabresi much of Tillman’s argument was premised on the proposition that the president is not an officer of the United States within the meaning of Article II because the usage of the term in Article II shows it applies only to appointed, not elected, officials. See The Great Divorce, 157 U. Pa. L. Rev. PENNumbra at 137-38 (discussing the Impeachment and Commissions Clauses). If this is so and the terms “officer of the United States” and “office under the United States” should be read coextensively, Tilllman argues, it follows that the Incompatibility Clause does not prohibit joint congressional-presidential officeholding. Id.

 Calabresi’s response to this argument may best be described as bemused incredulity. See id. at 141 (“Seth Barrett Tillman has made an ingenious argument for an utterly implausible proposition.”). Calabresi responds to Tillman with the following points: (1) the presidency is clearly an office, as the Constitution explicitly states on multiple occasions, and every indicia of original public meaning supports the conclusion that it is an “office under the United States” and that the president is an “officer of the United States;” (2) the terms “office under the United States” and “officer of the United States” are not legal terms of art with a specialized meaning different from their ordinary meaning; (3) the usage of “office” and “officer” in legal discourse prior to the adoption of the Constitution was inconsistent with Tillman’s theory because, for example, state governors, whether or not elected, held offices under the state and were officers of the state; (4) Tillman’s theory would lead to normatively implausible results under the Incompatibility Clause (i.e., allowing a sitting president to serve in Congress) as well as other clauses such as the Foreign Emoluments Clause; and (5) Tillman’s theory is inconsistent with uniform historical practice, as exemplified by the fact that no one “in 219 years held the presidency while serving as a member of Congress, and the two sitting senators elected to the presidency, Warren G. Harding and John F. Kennedy, both resigned their senate seats upon becoming President.” Id. at 142-44. (Note: not long afterward Barack Obama and Joe Biden also resigned their senate seats after being elected to the presidency and vice presidency).

With respect to Tillman’s argument specifically regarding Article II’s use of the term “officer of the United States,” Calabresi acknowledged this was a closer question. See id. at 144-45 (noting that the Commissions Clause provides “Tillman’s best argument); id. at 157 (conceding again that Tillman has a “valid point” about the Commissions Clause). Nonetheless, he adhered to the position he had taken in 1995 that the better reading of Article II is that the president and vice president are officers of the United States. In support of that position, Calabresi particularly stresses the language of the Necessary and Proper Clause of Article I, which applies to powers vested “in the Government of the United States, or in any . . . Officer thereof.” Because the president has always been considered an “Officer” within the meaning of this provision, and because it was “highly implausible” that this language would have been interpreted differently than the nearly identical language of Article II, Calabresi argued that the president must be an “officer of the United States” for all purposes. Id. at 142; see also id. at 156 (“Tillman’s inability to differentiate the Necessary and Proper Clause is thus fatal to his thesis.”).

Finally, Calabresi notes that even if the president was not an “officer of the United States” for purposes of Article II, it would not necessarily follow that he does not hold an “office under the United States” for purposes of the Incompatibility Clause and other constitutional provisions because the latter phrase is arguably broader. Id.at 156-57.

At this point it is worth considering what Calabresi has and has not changed his mind about since 2008. It seems clear that he has not changed his view that the president holds an “office under the United States” as that term is used in various constitutional provisions, including section 3 of the 14th amendment. For example, Calabresi notes that he favored the impeachment and disqualification of Trump for the events of January 6. Presumably therefore he believes, contra Professors Tillman and Blackman, that such disqualification would prevent Trump from again ascending to the presidency because it is an “office under the United States” within the meaning of the Impeachment Clause.

Calabresi also still believes (I think) that there was no legal term of art prior to the adoption of the Constitution that excluded elected state officials in the executive branch from being officers of the state (or holding offices under the state). For example, an elected state governor would be an officer of that state within the meaning of the state’s constitution. Moreover, I assume that Calabresi still believes that elected governors and other elected state officials in the executive and judicial branches would qualify as “executive and judicial Officers . . . of the several States” within the meaning of the Oaths Clause in Article VI of the Constitution.

Calabresi has changed his mind on whether the term “officer of the United States” in Article II is best read to apply to the president and vice president. This is perfectly reasonable in my estimation. As Calabresi acknowledged in his prior writings, this is a close question and reasonable arguments can be made on either side. I have previously expressed the view that the president and vice president probably should not be considered “officers of the United States” as that term is used in Article II and so I can hardly criticize Calabresi for coming around to the same position. (Exactly why he changed his mind on this, seeing as the arguments today are no different than they were in 1995 and 2008, though, is a little puzzling).

This situation is different, however, regarding the interpretation of “officer of the United States” outside of Article II. In 2008 Calabresi said that “when the Oath Clause of Article VI requires that all federal and state executive and judicial officers takes oaths to uphold the Constitution the Clause is clearly referring to the President, the Vice President and to state governors as well as to all federal and state judges.” The Great Divorce, 157 U. Pa. L. Rev. PENNumbra at 142-43 (emphasis added). Thus, Calabresi believed the president and vice president were “executive . . . Officers . . . of the United States” within the meaning of Article VI. Presumably he must have changed his mind on this because otherwise it would make no sense for him to claim that “officer of the United States” is a term of art that excludes the president and vice president for all constitutional purposes, but his September 16 post does not mention the Oath Clause or offer any explanation for why he no longer has the opinion he expressed so emphatically in 2008.

On the other hand, I find it difficult to believe that Calabresi has changed his mind about the Necessary and Proper Clause of Article I, when he claimed in 2008 that “[e]veryone for 219 years has thought that the Necessary and Proper Clause uses these words [Officer of the Government of the United States] to refer to the President.” Id. at 142. Furthermore, he stressed that “Congress has enacted lots of legislation over two centuries predicated on the idea that it can carry into execution the President’s executive power because he is an ‘officer’ of the ‘Government of the United States.’” Id. at 156. Surely if Calabresi had changed his mind on such an important issue, he would have at least mentioned it in his blog post.

But if Calabresi has not changed his mind regarding the Necessary and Proper Clause (and the Oath Clause), it is hard to see how he could maintain that “officer of the United States” is a term of art that must be read to exclude the president (and vice president) for all purposes in the original Constitution, much less in an amendment that was enacted many decades later. Calabresi claims that the phrase “officer of the United States” must “presumptively” mean the same thing in section 3 as it does in Article II, but this cannot be right if it means something different in Articles I and VI.

Moreover, apart from the internal consistency of Calabresi’s views on these issues, I have questions regarding the interpretive methodology that leads him to declare so confidently that the Constitution establishes “officer of the United States” as a legal term of art that excludes the president and vice president for purposes of section 3, when Calabresi himself admits that the drafters of section 3 themselves did not understand this to be the meaning of the term. Calabresi concedes that “[t]he Senate in debating Section 3 of the 14th Amendment was of the view that the president is an officer of the United States.” If the Senate did not understand this “term of art,” is Calabresi claiming that the House, the legislatures that ratified the 14th amendment or the public at large did so? I don’t think he is making this claim, and if so he certainly has not produced evidence to substantiate it.

A far more conventional analysis, it seems to me, would be to say that while the ordinary meaning of “officer of the United States” would seem include the president and vice president, Article II’s usage of that term makes it ambiguous as applied to these officeholders. One would then ask what reasons support a narrower or broader construction of the term as used in section 3. For example, would excluding the president and vice president from the list of officeholders who are disqualified from public office if they engage in insurrection or rebellion be a normatively plausible result? Would someone reading the text of section 3 when the 14thamendment was proposed by Congress have understood this exclusion given that the list of disqualification-triggering offices covered all other significant (and many insignificant) federal and state offices? The answers to these questions seem self-evident. If there are countervailing considerations that would support a narrower construction, I have not heard them.

Finally, it seems to me that all law professors or other self-appointed constitutional experts would be well-served by a dose of humility in commenting on section 3, given that there are obviously a host of novel and unsettled issues arising from its potential application to the events of January 6. Declaring confidently on one day that section 3 clearly disqualifies Trump from office and with equal confidence a few weeks later that it does not apply to Trump is a textbook example of what not to do.

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Does Section 3 of the Fourteenth Amendment Apply to State Elected Officials?

Less than a week after the January 6, 2021 attack on the Capitol, I wrote a brief blog post on whether section 3 of the 14th amendment applied to the presidency. (Don’t feel bad if you forgot this- so did I). The relevant text of section 3 is set forth below:

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 officer 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.

This language describes two categories or groups of offices or positions. One is the category of previously held offices/positions which will trigger section 3’s disqualification if the official in question, after taking the oath, commits insurrection, rebellion, etc. We will call this category, following the terminology used by Professors Baude and Paulsen, the “disqualification-triggering” offices or positions.

The second category (second in time, although it appears first in the text of section 3) consists of those offices/positions that a previously disqualified official is prohibited from holding in the future. We will call these, following Professor Hemel, the “banned” offices or positions.

My prior post briefly addressed two questions: (1) whether the president is an “officer of the United States” under section 3 and therefore holds a disqualification-triggering office; and (2) whether the presidency is an “office under the United States” and therefore qualifies as a banned office. I predicted, based on a long history of work by Professor Tillman, joined more recently by Professor Blackman, that Tillman and Blackman would answer both these questions in the negative. I also noted, based on my own long history of responding to (mostly) Tillman’s work, that these answers would be wrong, although I allowed that the first question was “somewhat closer” than the second.

As it turns out, my prediction was not entirely correct. Tillman and Blackman do indeed claim that the president is not an officer of the United States and therefore does not hold a disqualification-triggering office, but they expressly decline to take a position on whether the presidency is an “office under the United States” for purposes of section 3. This constitutes progress, I guess, and I congratulate them for not extending what I consider to be grievous error. In the same spirit, I will somewhat soften my position on the first question. Although I am still inclined to think the president is an officer of the United States for purposes of section 3, I think it is fair to treat it as an open question, which I hope to explore further in future posts.

Today, however, I want to address a different set of issues, which have not been discussed in depth by any of the principal commentators on section 3 (at least to my knowledge). Does section 3 apply to state elected officials/positions and, if so, which ones? This question is not only of some current interest in its own right, but the answer has some important implications for the Tillman/Blackman theory that underlies the overall controversy.

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Can Trump be Prosecuted for Violating the Speech or Debate Clause?

According to media reports, the target letter received by former President Donald Trump on July 16, 2023, indicates that he may be charged by the grand jury with violating 18 U.S.C. §241, a Reconstruction-era law that criminalizes the following conduct:

If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same;

This provision has not been previously discussed as a possible charge arising out of the January 6 attack on the Capitol, and its inclusion in the target letter seems to have taken many observers by surprise. In what way could Trump’s conduct be said to violate this statute?

One possibility is that Trump conspired to “injure” the “free exercise or enjoyment” of the right to vote of those persons who elected Joe Biden as president by seeking to overturn the results of the election. Another is that he conspired to injure the rights of those voters who voted for Biden electors in the seven states where he sought to replace them with the “fake electors.” On its face, though, this seems like a somewhat strained reading of the statutory language, which is more naturally read to apply to direct interference with someone’s rights, rather than with the benefits that might ordinarily flow from the exercise of such rights. (Another possible problem is that the right to vote for president is initially granted by state, rather than federal, law).

Perhaps Trump conspired to “injure” or “oppress” the free exercise of the right to vote by presidential electors in those states where he sought to replace them. The Constitution  grants electors appointed by the states the right to vote for president and, while Trump did not directly interfere with their right to cast their votes, he clearly attempted to prevent their votes from being either opened or counted. This seems to me like a better fit with the statutory language, but it is still somewhat problematic. An attempt, even by fraud or other illegal means, to influence Congress or the vice president in how they treat the certificates of presidential electors  arguably does not implicate any personal right or interest of the electors themselves and is awkwardly described as an attempt to injure or oppress the rights of the electors.

This leaves one other possibility (that I can think of). Perhaps Trump conspired to “injure, oppress, threaten or intimidate” the vice president and/or members of Congress in the free exercise of their rights to participate and vote in the electoral count on January 6, 2021. Indeed, that seems like a fairly straightforward description of some of Trump’s actions. There can be little doubt, for example, that Trump openly tried to threaten and intimidate Vice President Pence with regard to his role in the electoral count process. (Whether some or all of that conduct is protected by the First Amendment is a separate question.).

There is a possible objection here too. The vice president’s role in the electoral count is arguably of a purely ministerial nature (indeed that is what Pence said in declining the invitation to disregard Biden electors) and thus might not involve any “right or privilege” secured by the Constitution or federal law. Furthermore, while federal law purports to give members of Congress the authority to vote on certain objections to presidential electors, it is also debatable whether this (constitutionally questionable) authority constitutes the kind of “right or privilege” that section 751 is intended to protect.

Here, however, Special Counsel Jack Smith may have some ammunition in the Speech or Debate Clause, which (as we all know) provides that “for any Speech or Debate in either House, [senators and representatives] shall not be questioned in any other Place.” This protection is typically described as a privilege or immunity of members of Congress, and the Supreme Court has explained that it “was designed to assure a co-equal branch of the government wide freedom of speech, debate, and deliberation without intimidation or threats from the Executive Branch.” Gravel v. United States, 408 U.S. 606, 616 (1972) (emphasis added). To the extent that Trump used threats or intimidation (beyond the protection of the First Amendment) to interfere with the electoral count process, he arguably sought to “threaten” or “intimidate” the vice president and/or members of Congress in the free exercise of the right and privilege of speech, debate, and deliberation protected by the Speech or Debate Clause (as well as the 12th amendment and Electoral Count Act).

It could be argued that the Speech or Debate Clause applies to debates and deliberation over legislation and other matters which the Constitution places within the jurisdiction of either House, but not to the ministerial and ceremonial electoral count, which ordinarily involves no debate or deliberation of any kind. However, this argument is substantially undercut by the fact that the chief judge of the US District Court for DC recently agreed with former Vice President Pence that the Clause applies to the electoral count proceeding and the vice president’s role therein. Furthermore, in a separate case, currently pending before the DC Circuit, Representative Scott Perry is similarly arguing that the Clause should protect his activities related to the electoral count. While the district court in Perry’s case did not agree with his views on the extent to which the Clause would protect him from compelled production of his cell phone records, it did agree that the Clause applied to the electoral count proceeding:  “Given that certification of the Electoral College vote is a matter which the Constitution places within the jurisdiction of both Houses of Congress, activities necessary and integral to fulfilling that task are entitled to Clause protection.”

Indeed, if this turns out to be the theory that the special counsel is using to support a charge under section 451, it would not be surprising if he got the idea from the litigation initiated by Pence (who quoted the above-referenced language from Gravel in his motion to quash) and Perry.

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George Santos, the Expulsion Power, and Fun with Textualism

The Constitution provides that “[e]ach House may determine the Rules of its Proceedings,  punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.” This raises a question of interpretation. Does the power to expel turn upon a finding that the Member has engaged in disorderly behavior? In other words, should this sentence be read as if it said “each House may punish and, with the concurrence of two thirds, expel a Member for disorderly behavior”?

A straightforward response would be that if that was what Framers intended, that is what they would have written. Furthermore, if the Framers had meant that the power to expel was a special form of punishment (requiring a two thirds vote), such that the intended meaning was something like “each house may punish a member for disorderly behavior, including by expulsion if two thirds agree,” they would have, at a minimum, placed an additional “and” following “Proceedings,” thus indicating that the clause refers to two powers (one to determine rules and one to sanction violations of those rules), with the latter consisting of the power to punish (or to punish short of expulsion) and the power to expel. Instead, the clause as written suggests that there are three separate powers conveyed: (1) the power to determine rules; (2) the power to punish; and (3) the power to expel. A literal reading of the text, therefore, reveals that expulsion is not limited to disorderly behavior.

I must admit, however, that I have long assumed that the clause was inartfully drafted, and the Framers did not intend to permit expulsion for any reason, while limiting lesser punishments to cases involving disorderly behavior. As Professor Currie notes, “it is hard to imagine why the House should be licensed to employ only the extreme sanction of expulsion, and not lesser penalties, in other cases [not involving disorderly conduct].” David P. Currie, The Constitution in Congress: Democrats and Whigs 1829-1861, at 218 (2005).

One explanation for this might be the supermajority requirement for expulsion. Because two thirds must concur for expulsion, it might be argued there is less of a need to specify the grounds of offense. It can be assumed that there will rarely, if ever, be a consensus for expulsion unless the conduct clearly merits it. And historically there have in fact been very few expulsions: only five members have been expelled in the House and fifteen in the Senate, with the vast majority being members who supported the Confederacy during the Civil War.

There is a problem with that explanation, though. The draft which came out of the Committee of Detail, before Madison successfully moved to add a supermajority for expulsion, provided: “Each House may determine the rules of its proceedings; may punish its members for disorderly behaviour; and may expel a member.” 2 The Records of the Federal Convention of 1787, at 180 (Max Farrand ed. 1911). This language is, if anything, more clear than the final text that only the power to punish is limited to disorderly behavior, yet the power to expel in the committee’s draft could be exercised by a simple majority.

Perhaps the best explanation for why the Framers might have specified the offense for punishment, but not for expulsion, lies in the different purposes of these actions. Expulsion was fundamentally a self-protective measure, rather than a punishment, to enable the legislature to rid itself of members deemed unfit to serve. If a member engaged in conduct which did not rise to that level and which did not actually disrupt legislative proceedings (i.e., did not constitute disorderly behavior), it was deemed safe to leave any punishment to normal judicial process.

Ordinarily this makes little difference because “disorderly behavior” is now construed so broadly as to encompass virtually any misbehavior by a member, whether or not it disrupts legislative proceedings or even pertains to the member’s official functions at all. One limitation, however, persists. To my knowledge no member of the House or Senate has been punished for behavior which predated the member’s first election.

That brings us to the matter of George Santos, a first-term member who was indicted yesterday for a variety of financial crimes, including fraud, theft, violation of campaign finance laws and filing of false financial disclosures. Many of these offenses related to his status as a candidate for congressional office in 2020 and 2022, but all of them appear to precede his election to Congress (and certainly precede his being sworn in). It is therefore arguable (though by no means clear) that they do not constitute “disorderly conduct” for which Santos could constitutionally be punished by the House. (To be sure, this argument will be particularly difficult to make for those offenses which could have affected his election, such as filing of false campaign disclosures.) His lawyers can therefore argue that he cannot be expelled for these offenses either.

Because congressional expulsions are so rare, there are probably no precedents directly on point. One case that might be of interest is a 1913 election case involving a member who allegedly engaged in fraud and bribery during the primary and general elections. The Committee on Elections declined to pursue the matter as an election contest, but it suggested that the charges, if proven, could warrant expulsion. It explained that the power of expulsion is “a power of protection” that is “necessary to the safety of the State.” It could be exercised in a wide variety of circumstances, including for a member who is “wholly unfit through some physical disorder or mental derangement,” who commits a crime or is disloyal or engages in any misconduct “in any place and either before or after conviction in a court of law.” The committee concluded that “its extent seems to be unlimited” and is “a matter purely of discretion to be exercised by a two-thirds vote.” 2 Cannon’s Precedents of the House of Representatives §78, at 110 (1935).

While I am not entirely comfortable with the proposition that members can be expelled for any reason (could, for example, Senator Feinstein be expelled on the grounds that she is “wholly unfit” on grounds of mental or physical infirmities?), the textual argument for concluding that expulsion is not limited to disorderly conduct seems to be the stronger one here.

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The Chief Justice’s Inartful Dodging

“When Congress seeks information needed for intelligent legislative action, it unquestionably is the duty of all citizens to cooperate.” Trump v. Mazars, 140 S.Ct. 2019, 2036 (2020) (internal quotations omitted). So spoke the Supreme Court in an opinion by Chief Justice Roberts less than three years ago. Mazars involved congressional subpoenas for the financial records of then-President Trump, and the Court’s emphasis of the word all underscored the fact that the Constitution recognizes no super-citizens who are above this legal duty, not even the sitting president.

The chief justice seemed to be singing a different tune, however, when he responded this week to an invitation from Senator Durbin, chair of the Judiciary Committee, for Roberts or another justice of his choosing “to testify at a public hearing regarding the ethical rules that govern the Justices of the Supreme Court and potential reforms to those rules.”

Roberts informs Durbin that he “must respectfully decline” the invitation to testify. He explains that “[t]estimony before the Senate Judiciary Committee by the Chief Justice of the United States is exceedingly rare, as one might expect in light of separation of powers concerns and the importance of preserving judicial independence.” He notes that “[t]he Supreme Court Library compilation of ‘Justices Testifying Before Congress in Matters Other Than Appropriations or Nominations’ has identified only two prior instances—Chief Justice Taft in 1921 and Chief Justice Hughes in 1935.” Furthermore, these and other instances of chief justices testifying before congressional committees involved only “routine matters of judicial administration” or similar “mundane” topics. Finally, Roberts cites the fact that “[c]ongressional testimony from the head of the Executive Branch is likewise infrequent,” pointing out that “no President has ever testified before the Senate Judiciary Committee and only three Presidents (in 1862, 1919, and 1974) have testified before any Congressional committee.”

Respectfully, this is an extremely silly argument. To begin with, it reads like a parody of how lawyers cherry pick precedents to support their arguments. Why does it matter how many times the “chief justice” (as opposed to any justice or even any Article III judge) has testified before “the Senate Judiciary Committee” in particular about matters other than appropriations or nominations? How is that more illuminating than, say, whether a justice named Roberts has previously testified in the month of May?

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Is there a House Jail?

A few weeks ago the Levin Center had a very interesting program, which you can watch here, entitled “How the Courts are Shaping Congress’ Power to Investigate.” If you are interested in congressional oversight and investigations, it is definitely worth watching because there have been a lot of cases arising out of the Trump presidency which will have a profound impact on the investigatory power.

There was one moment in particular that made my ears prick up. For context, at about 33:21 in the program, former House General Counsel Doug Letter starts discussing the (hypothetical) possibility the House might need to reinstitute the practice of inherent or direct contempt. Readers of this blog know that this involves a process in which the House (or Senate) directs the Sergeant at Arms to arrest a recalcitrant witness, who is then tried before the bar of the House. As Letter explains: “The House could go back to what it did before, about a hundred years ago, [as in the case of] McGrain v. Daugherty, we can start arresting people and then they can raise, you know, a habeas defense.”

Letter then elaborates that in this (again hypothetical) situation “[w]e are going to start having a big beefed-up Sergeant at Arms office and we are going to go start arresting people and there is a House jail, it will be expanded considerably and we will just arrest people from now on.” (emphasis added).

There is a House jail? This is an issue that comes up now and then. Some people say there is a House jail, but most say that there is not. Katherine Tully-McManus investigated this issue at some length a few years ago. It might seem strange that there could be a division of opinion on such a straightforward factual issue, but I think it depends in part what you mean by “House jail.” It appears there is no place in the Capitol complex which is currently used or usable for holding prisoners for any significant length of time (e.g., overnight). As Tully-McManus’s Capitol Police sources note, there is a holding facility at Capitol Police headquarters on D Street NE. It may be that when the Capitol Police arrest people in the Capitol or congressional office buildings, there is a place they are taken before being transported to the D Street facility, though this is sheer speculation on my part.

When many people talk about the “House jail,” however, they mean some area in the Capitol that was used as a jail back in the days when the House actually imprisoned people. I was once told by a senior congressional staffer that such a place exists and he had seen it. Tully-McManus discusses some possible locations where that might be.

So maybe that is what Letter meant. It sounded, though, like he was referring to some place that could be used immediately for holding prisoners if the Sergeant at Arms were to arrest them. Perhaps he was talking about the D Street facility, although I don’t know whether the Sergeant at Arms would be allowed to house prisoners there or if those prisoners would remain in the SAA’s custody if they were at that facility.

Anyway, I thought this was worth adding to the lore of the House jail.

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More on Mike Pence and the Speech or Debate Clause

In case you missed it, I have a piece on Lawfare with further analysis of former Vice President Pence’s Speech or Debate argument.  To bottom line it: (1) I think it is very unlikely that Pence will be able to get the subpoena quashed in its entirety; (2) Pence has a reasonable chance of succeeding on the threshold question of whether he is protected by the Speech or Debate Clause at all: (3) if so, there are likely areas where a court would hold he is protected from questioning (e.g., his communications internal to Congress related to the performance of his role as president of the Senate); (4) for the most important communications at issue (namely Pence’s communications with former President Trump and others outside Congress who were attempting to influence how he would exercise his role during the Jan. 6 electoral vote count), the Speech or Debate question is a close one that could go either way; and (5) in any event, the Senate has the power here to waive Pence’s Speech or Debate privilege and/or demand that he testify before the Senate regarding these matters.

And if you want to hear even more about this subject (and given that you are the sort of person who reads Point of Order, I assume you do), you can listen to me and Eric Columbus on the Lawfare podcast with hosts Quinta Jurecic and Molly Reynolds.

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What is a Vice President?

This is not in fact the title of a Valentine’s Day poem for Kamala Harris, but of some preliminary thoughts in response to a Politico article revealing that former Vice President Mike Pence intends to resist a grand jury subpoena from Special Counsel Jack Smith on grounds that it violates the Speech or Debate Clause.

That raises a boatload of novel constitutional questions, but the most basic is just what exactly, constitutionally speaking, is the vice presidency? One “expert” answered the question this way in 2008 (hat tip: Derek Muller):

Vice President Cheney has been the most dangerous vice president we’ve had probably in American history. He has the idea — he doesn’t realize that Article I of the Constitution defines the role of the vice president of the United States. That’s the executive — he works in the executive branch. He should understand that. Everyone should understand that.

And the primary role of the vice president of the United States of America is to support the president of the United States of America, give that president his or her best judgment when sought, and as vice president, to preside over the Senate only in a time when in fact there’s a tie vote. The Constitution is explicit. The only authority the vice president has from the legislative standpoint is the vote, only when there is a tie vote. He has no authority relative to the Congress.

The idea he’s part of the legislative branch is a bizarre notion invented by Cheney to aggrandize the power of a unitary executive, and look where it’s gotten us. It has been very dangerous.

Actually, Article I, which of course deals with the legislative branch, says nothing about the vice president working in the executive branch. And Article II, which is probably what then-Senator Biden meant to reference, does not say anything about the vice president supporting, reporting to, or advising the president. In fact, as the Office of Legal Counsel has explained, “[t]he Constitution allots specific functions to the Vice President in the transaction of business by the Legislative Branch (art. I, §3) but neither grants nor forbids him functions in the conduct of affairs of the Executive Branch.” Participation of the Vice President in the Affairs of the Executive Branch, I Op. O.L.C. Supp. 214 (1961).

Biden’s claims about the vice presidency, made during the 2008 presidential election, related to then-Vice President Dick Cheney’s contention that the vice president was not part of the executive branch for purposes of an executive order granting the National Archives oversight authority over certain national security information in the executive branch. While this position elicited widespread outrage and mockery, Cheney’s view was not without some legal and historical substance. See, e.g, James D. Myers, Bringing the Vice President into the Fold: Executive Immunity and the Vice Presidency, 50 Boston Coll. L. Rev. 897, 901 (2009) (“Cheney’s claims reflect the reality that the constitutional and political status of the Vice President is still somewhat amorphous.”); Glenn Harlan Reynolds, Is Dick Cheney Unconstitutional?, 102 Nw. U. L. Rev. 1539, 1540 (2008) (“Despite the unfriendly political response, the argument that the Vice President is a legislative official is not inherently absurd.”). Furthermore, though Cheney’s argument may have been inconsistent with his assertions on other occasions of executive privilege for the office of vice president, it may have been the latter that should have given way. Reynolds, 102 Nw. U. L. Rev. at 1540 (“[T]he positioning of the vice presidency within the legislative branch—or, at any rate, outside the executive—may be appropriate. Such a reading, however, would render Cheney’s role within the Bush Administration, as well as the modern notion of Vice Presidents as junior versions of the commander-in-chief, unconstitutional.”).

A few years ago Roy Brownell, a lawyer in Washington, D.C., wrote an article arguing (persuasively imho) that while the vice president is popularly considered a subordinate of the president, and often (though not always) acts as such, “as a constitutional matter, the Vice President is independent from the President and can and does take actions and public positions that are contrary to the latter’s wishes.” Roy E. Brownell II, The Independence of the Vice Presidency, 17 Leg. & Pub. Pol’y 297, 300-01 (2014). The vice president’s independence is founded, first and foremost, on the fact that she cannot be removed by the president. Id. at 303. Moreover, contrary to Biden’s suggestion, the Opinion Clause, which authorizes the president to require the opinion in writing of the principal officer in each of the executive departments, does not apply to the vice president. Id. at 314-16. Thus, while the president can ask the vice president for her advice or opinion, he has no constitutional authority to require her to provide it.

In addition, the Twenty-Fifth Amendment, while it to some degree reflects modern assumptions about the vice president’s role in the executive branch, further cements the vice president’s autonomy from the president. Indeed, by giving the vice president the primary responsibility to determine when the president is unable to discharge the powers and duties of his office, even contrary to the president’s wishes, section four of that amendment “underscores the Vice President’s independence” and the fact that the president has no power to remove her from office. Id. at 308-10.

Finally, and most relevantly to the issue at hand, the vice president serves as the president of the Senate, where she has a number of functions, including recognizing senators on the floor, making rulings from the chair, and breaking tie votes. Id. at 316-17. Other functions including presiding at impeachment trials and, of course, presiding over the counting and certification of electoral votes. All of these functions are legislative in nature and are exercised by the vice president independently of the president. Id. at 316-17 & nn. 93 & 97. As Brownell observes presciently: “To permit the President, as a constitutional matter, to order the Vice President to preside a certain way or to vote a certain way would undercut the freedom of the Senate to carry out its own constitutional functions.” Id. at 317.

 None of this proves that the vice president is necessarily covered by the Speech or Debate Clause, much less that the specific questions that the grand jury wishes to ask of the former vice president would violate that clause. It does, however, suggest that Pence’s legal argument is not implausible on its face. See Myers, 50 Boston College L. Rev. at 936-37 & n. 307 (suggesting the possibility of limited legislative immunity for the vice president). Furthermore, Pence’s decision to invoke legislative privilege, rather than executive privilege, is interesting in its own right. It underscores that on the matters at issue Pence was fulfilling his own independent constitutional duties, not exercising executive branch functions delegated to him by the president. As a politically loyal vice president, Pence listened to what former President Trump and his minions had to say, but as a constitutionally independent officeholder, he made his own decisions based on the Constitution and the oath he took to defend it. This framing of the matter may have both political and legal ramifications in the months to come.

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Levin Center Program on “How Courts Are Shaping Congress’ Power to Investigate”

On Wednesday, February 8, 2023, from noon to 1:30pm, Elise Bean of the Levin Center will be moderating a virtual program on “How Courts are Shaping Congress’ Power to Investigate.” The participants include former House Counsel Doug Letter, as well as law professors Emily Berman, Andy Grewal and William Ortman. (Grewal’s title should also include “tweeter extraordinaire”).

A large number of recent court decisions, including most importantly the Supreme Court’s decision in Trump v. Mazars, have major implications for congressional oversight. (I am in fact working on an article with the tentative title of “How Mazars Will Shape the Congressional-Executive Informational Battlefield.”) So I am very much looking forward to hearing what these scholars and practitioners have to say.

You can register for the program here.