Additional Thoughts on Impeachment, Disqualification and Former Presidents
David Weisberg
With the recent posts of Michael Ramsey, Andrew Hyman, and Mike Rappaport in mind, here are four questions:
(1) Does the Constitution permit the Senate to try an ex-president on articles of impeachment?
(2) Is question (1) a justiciable question?
(3) If the Senate proceeds with a trial of the ex-president and convicts him, does the Constitution permit the Senate to render a judgement disqualifying him from serving again as president?
(4) Is the question whether the Constitution permits the Senate to render a judgment that disqualifies an ex-president from serving again as president a justiciable question?
Counterintuitively, I’m first going to answer question (2), because that facilitates the exposition. The rationale of Nixon v. US, 506 US 224 (1993), strongly suggests that question (1) is not justiciable, particularly in a case where judicial relief is sought before the Senate has convicted and rendered a judgment. In a 9 to 0 decision, the Court in Nixon held that the claim asserted by petitioner (a former federal judge) that the procedure the Senate had followed in his trial was unconstitutional was nonjusticiable, because the language and structure of Art. I, Sec. 3, cl. 6 demonstrate a textual commitment of impeachment to the Senate, and also because of the difficulty of fashioning judicial relief. If the Senate proceeds with a trial of the former president, I don’t believe the courts would presume to interfere.
Regarding question (1), I agree with Andrew Hyman that the best answer is ‘no,’ because that is the most natural reading of the relevant provisions of the Constitution. If there had been an intention to permit such a trial, it would have been easy enough to provide in Art. I, Sec. 2: “The House of Representatives…shall have the sole Power of Impeachment, which shall extend to Persons in Office and to Persons no longer in Office.” or words to that effect.
Prof. Ramsey cites Art. II, Sec. 4: “The President…shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes or Misdemeanors.” He acknowledges that this text clearly refers only to incumbent presidents, but cautions that that might be so because the provision relates only to removal from office and “it does not directly say anything about impeachments leading to other penalties.”
Prof. Ramsey quotes a very similar argument made by Michael Stokes Paulsen: “Impeachment is the exclusive method for removing a president from office but nothing in the constitutional text literally limits impeachment to present officeholders. Moreover, it would seem almost absurd to permit a miscreant officeholder to frustrate completely the possibility of receiving the constitutionally contemplated punishment of disqualification from future office by quickly submitting a pre-emptive resignation, hoping to launch a new bid for office in the future. The impeachment power thus arguably extends to former officeholders.” Prof. Paulsen goes on to say: “But that argument is contestable.”
In the same vein, Prof. Rappaport writes that the “disqualification” clause “suggests a clear purpose why the Constitution would allow impeachments of former officials – preventing them from serving in the future.”
I would respond to the idea that disqualification from future service provides a clear purpose for permitting former officials to be impeached in two ways. First, if that were the framers’ purpose, one would expect Art. I, Sec. 3, cl. 7, to state: “Judgment…shall not extend further than to removal from Office, or disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States, or both: but the Party convicted….” With the substitution of “or” for “and” and the addition of the words “or both,” that purpose would have been manifestly accomplished. Instead, we find: “Judgment…shall not extend further than to removal from Office, and disqualification….” The most natural, ordinary understanding here is that, when disqualification occurs, it always follows upon removal and never occurs without it.
The second point: Even if disqualification from future service suggests a clear purpose why former officials should be eligible for impeachment, I think all would agree that that does not identify from which offices a former official can properly be disqualified. If, e.g., a former president may properly be disqualified from serving in the future as a federal judge, but not from serving again as president, that might substantially decrease the weight one would give to the idea that disqualification provides a clear purpose for impeaching former officeholders.
This brings us directly to question (3). There are two good reasons to answer that question in the negative. First: Prof. Seth Barrett Tillman has undertaken extensive historical research supporting the conclusion that the presidency does not fall within the meaning of “any Office of honor, Trust or Profit under the United States[,]” as that phrase was understood when the Constitution was adopted. If he is correct, a judgment of disqualification issued by the Senate would not bar anyone—whether a former or incumbent officeholder—from subsequently serving as president.
But, putting Tillman’s historical research aside, there is a ‘structural’ argument that provides another reason to answer ‘no’ to question (3). If question (3) is answered affirmatively, that result is contrary to the specific grounds of ineligibility for the presidency set forth in Art. II, Sec. 1. That provision makes ineligible any person who is not a natural born citizen, or who is not at least 35 years old, or who has not been a United States resident for 14 years. Those three are the only grounds of ineligibility specified in the Constitution.
An affirmative answer to question (3) would in effect amend Art. II, Sec. 1, by adding the provision that any person who has been convicted by the Senate and disqualified from holding and enjoying “any Office of honor, Trust or Profit under the United States” is ineligible to be president. I think this is an untenable position. (This argument would extend to membership in the House of Representatives and the Senate, which would make the conclusions supported by the structural argument—that is, that the Senate lacks authority to disqualify anyone from seeking and holding an elective federal office—fully consistent with the results of Tillman’s historical research.)
In Powell v. McCormack, 395 US 486 (1969), the Court (in a 7 to 1 decision, with Chief Justice Earl Warren writing for the Court and Justice Potter Stewart dissenting only on mootness grounds, without reaching the merits) held that Adam Clayton Powell, Jr. had asserted a justiciable and meritorious claim that the House of Representatives had acted unconstitutionally in refusing to seat him—purportedly by exercising its authority under Art. I, Sec. 5, which makes each House “the Judge of the Elections, Returns and Qualifications of its own Members”—despite the uncontested fact that he met all the requirements set forth in Art. I, Sec. 2: He was at least 25 years old, he had been a citizen of the U.S. for at least 7 years and, when elected in N.Y., he was an inhabitant of N.Y. If the House of Representatives may not deviate from eligibility requirements the Constitution establishes for the House’s own members, surely the vote of a majority of the Senate (the vote of only a majority would impose the penalty of disqualification after two-thirds have voted to convict, see, Procedure and Guidelines for Impeachment Trials) may not alter the eligibility requirements the Constitution establishes for the presidency.
Powell also indicates that question (4) should be answered in the affirmative. If Citizen Trump were to run for president in 2024, after purportedly being disqualified by the Senate, a lawsuit he might bring, e.g., to compel some State to permit him to compete in a primary election, would not in any way interfere with his impeachment trial, which would have concluded long before the lawsuit; I don’t think the Senate would even be a proper party. Because the Senate would have finished the trial and issued its judgment, there could be no “potentially embarrassing confrontation between coordinate branches,” which Powell recognizes as a factor supporting non-justiciability. Nor is determining the effect of a Senate verdict of disqualification something that a “textually demonstrable constitutional commitment” assigns to the Senate. Whether the presidency is an “Office of honor, Trust or Profit under the United States” is a garden-variety question of constitutional interpretation to be answered by courts, not the Senate.