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20 posts from January 2021

01/18/2021

A Textualist/Originalist Case Against the Power to Impeach and Try Former Presidents
Michael Ramsey

My co-bloggers have made powerful arguments for (Mike Rappaport, John Vlahoplus) and against (Andrew Hyman, David Weisberg) Congress' power to impeach and try former officers.  This post restates and expands the textualist/originalist case against Congress' power.

To begin, a problem with interpreting the Constitution's impeachment provisions is that they are scattered across three sections in two different articles.  The framers would have done better to draft a single impeachment section.  The order in which one reads the provisions is important to discerning their meaning.

First, read the impeachment provisions this way: 

The President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.  The House of Representatives ... shall have the sole Power of Impeachment.  The Senate shall have the sole Power to try all Impeachments. ... [N]o Person shall be convicted without the Concurrence of two thirds of the Members present.  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.

This order makes much sense.  Read in this order, the natural interpretation is that the first sentence establishes the impeachment power.  It says who can be impeached (the President, etc.), what impeachment accomplishes (removal from office), and for what one can be impeached ("high Crimes and Misdemeanors").  The subsequent sentences describe how this impeachment power is distributed among institutions (the House impeaches, the Senate tries, with a supermajority conviction requirement).  The last sentence limits the scope and effect of punishment upon conviction.  In this reading, the disqualification clause appears ancillary -- in addition to removal from office, the Senate can add disqualification (thus the conjunctive "and").

But the provisions could be read in a different order:

The House of Representatives ... shall have the sole Power of Impeachment.  The Senate shall have the sole Power to try all Impeachments. ... [N]o Person shall be convicted without the Concurrence of two thirds of the Members present.  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. The President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

Now the opening sentences convey an undefined power of impeachment (whatever that may mean) divided between the House and Senate.  The subsequent sentences limit the power: punishment can be only removal or disqualification, and (in the last sentence) it is directed that if a sitting President or other officer is impeached and convicted for high crimes or misdemeanors, they "shall" be removed (no discretion).  This appears to be the reading given by John Vlahoplus here.

The latter order has the advantage of being the order in which the sentences appear in the Constitution.  And I agree it is a possible reading.  But I think there are a number of reasons to prefer the former order.

First, this appears to be the way the drafters thought about it.  At the Constitutional Convention, the delegates spent some time debating the sentence that became Article II, Section 4.  In particular, they debated whether "high Crimes and Misdemeanors" was the right standard.  The understanding seems to have been that this language defined and limited the impeachment power.  That is, they thought that if they adopted the "high Crimes and Misdemeanors" standard, there could not be impeachments for other types of actions that did not meet the standard.  In contrast, they did not spend much time at all on the general concept of impeachment, other than as defined in that sentence.  Thus they understood the sentence that became Article II, Section 4 as defining the impeachment power.  Their reading, in the sense of the alternatives stated above, began with Article II, Section 4.

That approach is consistent with a related understanding reflected in the framing debates: the framers saw impeachment as principally about removal.  In the debates, that was the central focus.  They did not talk about the advantages or disadvantages of a general power of disqualification, or a general power of impeachment of private citizens.  That suggests that the drafters understood disqualification as an ancillary punishment that could be added to removal of officers, not as a freestanding punishment that could be wielded against private citizens.

Second, the alternative reading of a largely unlimited impeachment power seems implausible.  The consequence of the second reading is that the House and Senate could impeach and try anyone for any reason.  The power wouldn't be limited to officers or former officers, and it wouldn't be limited to "high Crimes and Misdemeanors." True, it would be limited by the scope of punishment: only removal from office or disqualification from future office.  But that is still an extraordinary power, and one not mentioned in the drafting or ratifying debates.

Professor Rappaport, responding to an earlier version of this argument, says that limits could be derived from eighteenth century English law.  As a general methodological approach, I agree.  But in my understanding, eighteenth century English law did not have any material limits on the impeachment power.  Impeachment was just a judicial proceeding in the parliament.  In particular, it was not clear that "high Crimes and Misdemeanors" was the required standard under English law.  Indeed, that is exactly why the framers had their debate over the language of Article II, Section 4.  They wanted to specify which standard from English law would govern American impeachments.

Further, the common understanding in the post-ratification period and continuing to today is that Article II, Section 4 limits the impeachment power.  That is, people understood  that only officers (or perhaps former officers) could be impeached only  for "high Crimes and Misdemeanors" -- and they understood that this limit arose from Article II, Section 4.  For example, in the 1799 impeachment trial of William Blount, the central question was whether Blount (a former Senator) could be tried.  And the threshold question there was whether Senators are "Civil Officers of the United States."  Blount was acquitted, and the outcome is commonly taken as indicating that Senators are not such officers (and so not subject to impeachment).  But this debate and conclusion makes sense only if Article II, Section 4 defines the scope of the impeachment power.

It's true that (very occasionally) the Senate held a trial after a former officer had left office (Blount, plus Secretary of War William Belknap in 1876, and perhaps one or two others).  But in each case the principal claim was that the impeachment power attached to the officer when that officer was in office (and thus that the limits of Article II, Section 4 were satisfied).  But in any event these are scattered precedents -- by far the more significant precedent is the longstanding assumption that the Senate cannot try private citizens and cannot try people other than for high crimes and misdemeanors.

In sum, my view is that the best reading of the text's original meaning is that Article II, Section 4 defines the impeachment power.  It provides a way to remove sitting officers for specified misconduct.  It does not do more than that.  Article I, Section 3 adds that the Senate, in removing an officer pursuant to this power, may also impose future disqualification (removal "and" disqualification).

There are three main counterarguments.  The first is that it would be implausible (even "absurd") to allow an officer to escape future disqualification by the fortuity of the officer's term expiring or the expediency of an abrupt resignation.  One could respond to this claim by implying a power to try officers who resigned, or whose terms expired, after being impeached (as Andrew Hyman and Keith Whittington, respectively, suggest).  But in addition to being atextual, I don't think the power's purpose compels it. As discussed, the framers' central focus in creating impeachment power was removal of a miscreant officer, before the officer could do further damage.  Once the officer resigned or left office, that purpose would be accomplished.  And the threat of future disqualification upon conviction might be seen as an incentive to leave office without contesting the impeachment (sort of in the nature of an implicit plea bargain).  One may speculate which approach better suits the framers' purposes.  But neither seems absurd or implausible.  A narrow reading (limited to sitting officers) accomplishes the framers' central purpose of removal.

Second, it's argued that English law (and some post-Revolution state practice) allowed impeachment of private citizens.  I agree that this would be highly relevant if the Constitution's text didn't establish its own limits.  But it's quite plausible that the framers wanted to limit the scope of impeachment as compared to English law.  We know they did with respect to some aspects, including the extent of punishment.

The third counterargument relies on precedent -- especially the Belknap precedent mentioned above.  I'm surprised that anyone (especially any originalist or traditionalist) regards this precedent as meaning anything. It occurred 88 years after ratification (so not indicative at all of original meaning); it was a single incident almost 150 years ago (so not indicative of an common historical practice).  Moreover, it occurred in a highly partisan atmosphere.  The Democrats, in the midst of the intense post-war debate over reconstruction, had recently regained control of Congress and were anxious to further embarrass the scandal-plagued Grant administration in the run-up to the 1876 elections.  Ultimately Belknap was acquitted, with voting largely on partisan lines.  This does not seem a reliable exposition of constitutional principle.  (Perhaps there are other meaningful precedents -- some have mentioned the Blount impeachment, which also seems inconclusive -- but the surprising focus on Belknap indicates that there aren't others).

As a result, neither purpose nor precedent seems strong enough to overcome the simple textual argument: Article II, Section 4 establishes the scope of the impeachment power: only officers can be impeached and tried, and only for high crimes or misdemeanors.

01/17/2021

Keith Whittington on the Timing of Impeachment
Michael Ramsey

At Volokh Conspiracy, Keith Whittington:  When is an Officer Impeached?  From the introduction: 

During the first impeachment I wrote a series of posts trying to answer the question of when exactly an officer is impeached. (Just to address a common terminological confusion, recall that an "impeachment" is what the House does, and an "impeachment trial" is what the Senate does.) The question seemed relevant because House Speaker Nancy Pelosi decided to sit on the articles of impeachment adopted by the House and delay delivering them to the Senate. But as I emphasized then, the question of the official timing of the impeachment was entirely academic since there is no constitutional or legal consequence to an impeachment except that the Senate may then hold an impeachment trial (unlike in some state systems where the officer is immediately suspended from his office at the moment of impeachment). The delay did have political and rhetorical consequences, however, undermining the House's claim that the president was a clear and present danger to the republic who needed to be removed immediately.

Pelosi is doing it again. The House has voted to impeach and has approved an article of impeachment, and Pelosi has even named a team of managers to prosecute the impeachment case. But Pelosi has once again decided to sit on the articles and to not formally notify the Senate that the president has been impeached. This time it might have more substantial consequences.

And further: 

[T]he House risks handing the Trump defense team unnecessary legal arguments. It will already be difficult to persuade two-thirds of the senators that a former president can be put on trial and convicted of high crimes and misdemeanors. I believe that the House can impeach a former president and that the Senate can try a former president, but the textual case is stronger for the latter than the former.

...

But if you are of the view that the Senate can try all constitutionally valid impeachments, even when the officer has left the office, but an impeachment is only constitutionally valid when the impeached individual is a current officer, then the timing of the impeachment matters. Some of what Judge Luttig has written suggests that he is of this view. This might be the one circumstance in which, under the federal constitution, the question of when an officer is impeached has actual constitutional consequences.

And the key point:

If you take that possibility seriously—and some senators might—then it matters a great deal when exactly the House used its impeachment power to formally impeach Trump such that it can validly authorize the Senate to hold an impeachment trial. As I observed in the earlier posts, the traditional understanding of the impeachment power in the United States up until the early twentieth century was that the "impeachment" occurs when an authorized member of the lower chamber appears on the floor of the upper chamber and "impeaches" an officer by formally leveling an accusation and demanding a trial. Starting in 1912, the House has taken the view that the "impeachment" occurs when the House votes to adopt a resolution of impeachment. Under the modern view, Trump has already been impeached, and so there should be no question about whether the Senate can start a trial whenever the House gets around to exhibiting articles of impeachment. Under the traditional view, Trump has not yet been impeached and will not be impeached until the House formally notifies the Senate.

01/16/2021

Convicting Former Presidents
John Vlahoplus

The Constitution is famously short on detail, and its impeachment provisions are no exception.  Read literally, their express terms provide only five rules of procedure and three of punishment.  They do not provide an exhaustive list of who may be impeached and convicted, on what grounds, or when.  They do not expressly or by implication forbid convicting a former president. 

The rules of procedure are that the House has the sole power of impeachment; the Senate has the sole power to try impeachments; Senators shall be sworn or affirmed when trying impeachments; the Chief Justice shall preside over the trial of a President; and conviction requires concurrence of two thirds of the Senators present.

The first rule of punishment is that the President cannot grant reprieves or pardons in cases of impeachment.  The express terms of the other two merely set a cap and a floor on punishment.

Cap:  “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 . . . .”  On its face, this rule is merely a limitation on punishment.  It does not require any.  It allows the Senate to convict but to impose no punishment at all.  It allows the Senate to impose only one of the two specified punishments.  If the presidency is not an office of honor, trust or profit under the United States, for example—as Seth Barrett Tillman argues—the rule allows the Senate to forbid convicted Presidents ever to hold such offices while permitting them to remain in the presidency for the remainder of their term.

Floor:  “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”  On its face, this rule is merely a floor on punishment.  For specified persons convicted of specified offenses, the Senate loses some of its flexibility over punishment.  The convict shall be removed from office. 

None of these eight rules provides an exhaustive list of persons subject to impeachment.  The President, Vice President and all U.S. civil officers at least are subject.  But the rules do not exclude others. 

None of the rules provides an exhaustive list of the grounds for impeachment.  Specified persons who commit specified offenses must be removed from office.  But there could be other grounds for impeachment, or other persons subject to impeachment, for which or for whom the Senate retains its discretion and only the cap, not the floor, applies.

None of the rules limits when Congress may impeach and convict.  Some people read too much into the floor; they infer from the punishment that the Senate can only convict someone who currently holds one of the specified offices.  But the rule merely provides a minimum punishment for those currently in office who commit certain offenses.  It says nothing about the ability to convict those who no longer hold office, nor about the punishments they face.  For any other rules or limitations on impeachment and conviction, one must look beyond the text, as one always does in constitutional interpretation.  It may be that the grounds for impeachment are limited to treason, bribery, and other high crimes and misdemeanors, and that former officeholders cannot be convicted.  But one must make the case on grounds other than the Constitution’s text.

Anita Krishnakumar on Tara Grove on Textualism
Michael Ramsey

At Jotwell, Anita Krishnakumar: The Multiple Faces of Textualism (discussing  Tara Leigh Grove, Which Textualism?, 134 Harv. L. Rev265 (2020)).  From the introduction:

In her wonderfully-titled article, Which Textualism?, Tara Leigh Grove uses the recently decided Bostock v. Clayton County case to highlight a truth about statutory interpretation theory that scholars have largely ignored: Textualism is not a monolithic interpretive approach, but one that contains multiple competing strands. This observation is long overdue, and Bostock is an excellent vehicle for exploring its implications, given that the three separate opinions issued by the Court all claimed to employ a textualist interpretive approach—while reaching different outcomes.

Which Textualism? begins by differentiating between what Grove calls “formalistic textualism,” on the one hand, and “flexible textualism,” on the other—and uses this frame to discuss “some real, but underappreciated, disputes among textualists” regarding the universe of interpretive tools and resources courts should avail themselves of when interpreting statutes. Specifically, Grove argues that “formalistic textualism” authorizes interpreters to apply only a “closed set” of normative canons, whereas “flexible textualism” allows interpreters to consult a much wider range of canons, such as the absurdity doctrine, that invite considerable judicial discretion.

In Bostock, Grove contends that Justice Gorsuch’s majority opinion exemplified “formalistic textualism” because it focused intently on the statutory term “because of sex” and what that term means in the context of sexual orientation-based discrimination. By contrast, Grove characterizes both Bostock dissenting opinions as engaging in “flexible textualism”—because the dissents relied on atextual considerations including public views about homosexuality in 1964, other statutes enacted after Title VII, and the “far-reaching” consequences of construing Title VII to cover discrimination based on sexual orientation.

01/15/2021

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. US506 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. McCormack395 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, seeProcedure 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.

Gerard Magliocca: Amnesty and Section Three of the Fourteenth Amendment
Michael Ramsey

Gerard N. Magliocca (Indiana University Robert H. McKinney School of Law) has posted Amnesty and Section Three of the Fourteenth Amendment (67 pages) on SSRN.  Here is the abstract:

This Article is the first scholarly account of Section Three of the Fourteenth Amendment, which excluded many ex-Confederates from office unless a supermajority of Congress granted a waiver. Section Three was the first part of the Fourteenth Amendment applied by Congress--even before the Amendment was ratified. Section Three was the first part of the Fourteenth Amendment applied by the courts, with Chief Justice Chase's opinion in "Griffin's Case" setting the tone for future Fourteenth Amendment decisions that narrowed the text's scope. And Section Three was the part of the Amendment that received sustained attention in Congress when a broad amnesty was enacted in 1872 and Senator Charles Sumner tried (unsuccessful) to add a broad civil rights amendment to the amnesty bill.

The story of Section Three is a microcosm of the trajectory of the Fourteenth Amendment as a whole during Reconstruction. Radical aspirations were followed by judicial caution and vigorous enforcement by Congress, only to give way to exhaustion with the implacable anger of southern whites over the protests of the first Black Representatives in Congress. And in a final irony, the first man to claim the protection of Section Three (in 1868) was the last man to benefit from congressional relief under that provision (in 1978)--Jefferson Davis. Section Three is a constitutional failure that deserves closer scrutiny.

This article has gotten quite a lot of attention (over 2300 downloads) due to its possible implication that Section 3 of the Amendment might disqualify President Trump from office, the relevant language being: 

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.

Noah Feldman explains at Bloomberg: Trump’s 2024 Hopes Just Crashed Into the 14th Amendment.

Does this provision to apply to Trump? The first part certainly does: Trump took an oath to uphold the Constitution when he became president.

The trickier question is the second part: Has Trump’s conduct amounted to insurrection? You can be sure that, if Trump runs for office in the future, someone will go to court charging that he is ineligible to become president because of his conduct leading up to, on and following Jan. 6, 2021.

Professor Feldman is a little skeptical (as am I):

That question is, assuming the march on the Capitol was an insurrection [ed.: I'm pretty sure he means, or should mean, the storming of the Capitol, as a march alone shouldn't be]: Did Trump himself engage in insurrection when he spoke to the crowd and encouraged or incited the march? If a court says yes, Trump isn’t eligible to be president again.

It’s worth noticing that the 14th Amendment does not use the word “sedition,” which is often employed to describe verbal acts that organize or plan an insurrection. That absence could be used by Trump or his lawyers to argue that even if the march on the Capitol was an insurrection, and even if Trump verbally helped bring it about, he was not himself “engaged” in insurrection for purposes of the 14th Amendment ban on holding office.

The counterargument would be that insurrection necessarily requires a level of verbal encouragement and planning — and that inciting a crowd to engage in insurrection is every bit as insurrectionary as rebelling oneself. If this is right, then the question becomes whether Trump actually incited insurrection.

A further suggestion I've seen elsewhere is that Congress, pursuant to its Section 5 power to enforce the Fourteenth Amendment, could declare Trump to have engaged in insurrection and thus to be disqualified under Section 3.  But that sounds a lot like a bill of attainder to me.

01/14/2021

Impeaching Former Presidents
Mike Rappaport

Since everybody seems to be discussing it, I thought I would also chime in on the impeachment of former Presidents question.  Here I assume the reader has read Mike Ramsey’s extremely helpful post.  Needless to say, but sadly very needful in our age, none of this speaks to the desirability of impeaching President Trump or any other former President.    

I had always assumed that former Presidents could be impeached, so perhaps this has influenced my view.  I think this is a hard question, but I continue to lean slightly in that direction.      

As Mike’s post makes clear, there is really no text that speaks clearly to the issue.  But I am very influenced by three considerations.  First, the history appears to be that both England and the early states allowed impeachment of former officials.  This suggests that the power of impeachment extended to former officials.  It is true that the Framers did not necessarily employ the English and early American model.  But to me it is significant that the Constitution departs from the English model in specific ways – most importantly, by limiting the punishments that result from impeachment to removal and disqualification from future office.  Thus, in other ways, it might  seem to follow the English model.   

Second, the provision limiting punishment “in Cases of Impeachment . . . to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States”  is also relevant in another way.  It suggests a clear purpose why the Constitution would allow impeachments of former officials – preventing them from serving in the future. 

Third, if disqualifying from future office was thought to be one purpose of impeachment, then it would defeat that purpose if a President could resign before being impeached, just to launch a new bid for the office in the future.

The strongest argument on the other side is supplied by Mike – the fact that the high crimes and misdemeanors standard is in Article II, section 4, which seems to apply only to sitting Presidents, since it only discusses removal.  (“The President . . . shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”)  This raises the question what is the standard for removing former Presidents.  If this provision does not apply, then the Constitution seems to leave the question unanswered.  As Mike says, “Perhaps, then, the lack of limitation on non-removal impeachments implies that ex-Presidents (and other ex-officers) can't be impeached, because it was assumed that impeachment convictions would always involve removal from office.  Otherwise, the framers would have put the high crimes and misdemeanors limit somewhere else, to cover non-removal impeachments.” 

One reaction to this argument is to say that it looks like an unintentional feature of the language – the Framers did not intend this result, but produced by oversight.  But I do not think that is good objection to the argument.  We often do not really know the reason for provisions, and if we are to be textualists, we have to take the language seriously.

There is, however, an element of the above objection that is appropriate.  If the Framers thought to prohibit the impeachment of former Presidents, this was a very indirect way of making the point.  Normally, one would expect a more direct statement.  Thus, I do not think Mike's textual argument is as strong as most other textual arguments. 

How, then, to reconcile these conflicting considerations?  I believe that one can find a way to derive the high crimes and misdemeanors standard from the constitutional text.  The explanation, looks to “the power of impeachment.”  If the Constitution did not mention the high crimes and misdemeanors standard at all, then one would have to look at English law to discover what the power of impeachment entailed as to this issue.  It is my understanding that one of the possible standards for impeachment under English law was “high crimes and misdemeanors,” but there were others.  The provision in Article II, section 4, referring to high crimes and misdemeanors, indicates the correct standard and so should apply to all impeachments.  But by itself it does not apply to the impeachment of former Presidents.  Instead, the standard comes from the power of impeachment, and that power is explicated by Article II, section 4.  

This argument is somewhat stronger than simply applying the high crimes and misdemeanors standard to former Presidents without any textual hook.  Instead, it is the combination of the power of impeachment and the reference in Article II, section 4 that does the work.  With this marginal improvement in the textual argument, I believe the considerations in favor of applying impeachment to former Presidents outweigh the considerations in favor of restricting it to sitting Presidents.

Shalev Roisman Reviews "The Living Presidency" by Saikrishna Prakash
Michael Ramsey

At Lawfare, Shalev Roisman (Arizona): The Originalist Presidency in Practice? (reviewing Saikrishna Bangalore Prakash's "The Living Presidency: An Originalist Argument Against Its Ever-Expanding Powers" (Harvard University Press 2020)).  From the introduction;

Saikrishna Prakash, the James Monroe Distinguished Professor of Law at the University of Virginia, has written a terrific book. In “The Living Presidency: An Originalist Argument Against Its Ever-Expanding Powers,” Prakash provides a wide-ranging and deeply researched account of the expansive understanding of presidential power today and how it compares to the Constitution’s original meaning. In brief, the comparison is not favorable—at least if one is looking for a close fit. As Prakash explains in detail, the modern president’s power has vastly expanded relative to the prevailing conceptions of the Founding era.

Prakash provides several case studies of this phenomenon, examining how the president’s power to use military force, to conduct foreign affairs, and to make policy on his own, rather than simply executing Congress’s, has grown over time. Prakash concludes the book with an interesting and inventive set of proposals to “recage” the president’s power, which are worth reading in full.

In this review, I focus less on whether the president’s power has expanded and more on Prakash’s story of how we got here. Why is it that the modern president’s power is so much more expansive than that of the Founding era? Prakash discusses developments in public expectations of the president and the corresponding shift in presidential behavior to meet such expectations. But his main focus centers on an interpretive methodology that, in his view, has enabled the expansion of presidential power. As the title suggests, Prakash pins most of the blame on what he calls “living constitutionalism.” Prakash uses the term broadly to include any form of interpretation that allows for “informal constitutional change” outside the Article V amendment process (see pp. 112-13, 130). Prakash’s main target, though, is the common interpretive practice of relying on historical branch practice in determining the constitutionality of presidential exercises of power.

And from later on:

Prakash clearly thinks originalism is a superior alternative—the book is subtitled “An Originalist Argument Against [the Living Presidency’s] Ever-Expanding Powers.” But, if the primary critique of the “Living Presidency” is how it has operated in practice to expand the scope of the president’s power, it seems important to ask whether originalism would operate any better in its stead. But the focus of Prakash’s important and erudite book is elsewhere. Prakash’s book operates largely as a comparison of how a rigorous and principled form of originalism (i.e., Prakash’s) compares to how the interpretive method of looking to past branch practice has fared in reality. It is thus largely a comparison of originalism in theory versus resort to past practice in practice. Largely left out of the picture is the more apples-to-apples comparison of how originalism in practice compares to resort to past practice in practice. It is this comparison that lingered with me after reading Prakash’s terrific book and the one I’ll explore in the remainder of this review.

In my view, this comparison is well worth making. If the major critique of “living constitutionalism” is how it has operated in practice to produce a more expansive, less originalist vision of presidential power, then it seems fruitful to ask whether potential alternatives would fare better in practice. After all, as noted above in relation to the historical gloss approach, resort to past practice in theory could result in much narrower views of presidential power than have resulted in reality. Comparing how these methods are likely to operate in the world seems important in assessing their relative strengths and weaknesses.

Admittedly, how originalism would fare in practice as compared to so-called “living constitutionalism” is largely a counterfactual question, so we’ll never really know the answer. But I confess that I have my doubts that originalism as practiced in the executive branch, at least, would necessarily fare better than what Prakash terms “living constitutionalism.” Below I flesh out two reasons for these doubts—the first, institutional, and the second, empirical (albeit anecdotal)....

01/13/2021

Jeremy Rozansky on Precedent and Burke
Michael Ramsey

At National Affairs, Jeremy Rozansky: Precedent and the Conservative Court. From the introduction: 

The [Supreme Court's] recent overrulings [of prior cases] have provided an opportunity for the justices to reason about the nature and authority of judicial precedent. To the nation's great benefit, several justices in the conservative majority have forthrightly described the conditions under which they would vote to overrule precedent. By publicly elaborating criteria for overruling past decisions, these justices have provided a way for the governed to hold them accountable to a neutral set of principles. They also offer some valuable clues as to which way the Court's new majority may be headed and the internal divisions that may characterize it. More important still, their discussions illuminate the role and the limits of judicial authority in our constitutional system.

And introducing the discussion of Burke:

A conservative looking to take sides in these debates has many proof-texts to choose from. The writings of The Federalist and the opinions of Chief Justice John Marshall and Justice Joseph Story may be especially relevant, since their discussion of the "judicial power" vested by the Constitution will have some legally binding force for the originalist. But frequently these debates also focus on the Anglo-Irish philosopher-statesman Edmund Burke, who may have some particularly useful insights to offer.

Before serving as a member of British Parliament, Burke studied law. He trained at Middle Temple, one of London's four Inns of Court, around the same time as John Dickinson, the conservative American founder and author of Letters from a Farmer in Pennsylvania. Burke is reputed to have called a legal education one that "sharpens the mind by narrowing it" and, despite his training, determined never to practice as a barrister. Yet the common law clearly left an impression on his thought. Indeed, if one takes a close look at many of the most quotable and essential passages in Burke's writings, one usually finds a metaphor from the English common law of trusts, agency, or property.

Because of these passages, modern legal scholars routinely look to Burke as a kind of theorist of precedent — a conservative who prefers stare decisis to original meaning. As luminaries like David Strauss, Cass Sunstein, Thomas Merrill, and Ernest Young have described it, Burkeanism begins from a perception of the limits of individual reason. Strauss summarizes the Burkean's beginning proposition as the acknowledgement that "no single individual or group of individuals should think that they are so much more able than previous generations." Instead, it advises we look to traditions and other multigenerational institutions that aggregate both the insights of many limited minds and the knowledge gained through centuries of trial and error — what Burke called the "general bank and capital of nations and of ages" — which are presumed wiser than any individual's reasoning.

...

Chief Justice Roberts explicitly took up this conventional view of Burke at the end of the Supreme Court's most recent term. In June Medical, he cited Burke for the proposition that judges should adopt "a basic humility that recognizes today's legal issues are often not so different from the questions of yesterday and that we are not the first ones to try to answer them." Ironically, Roberts was defending his reliance on a precedent that was merely four years old. Nearly all the current justices had been the first to try and answer the question posed in that case, a point Justice Thomas made with his own quote of Burke. As Thomas put it, a true Burkean respects not just any prior decision, but only those decisions old enough to be revered as an inheritance. Yet Thomas did not ultimately disagree with the conventional view of Burke as an expositor of the wisdom of precedent; he merely rejected the idea that Burke would presume wisdom from a four-year-old decision.

There is certainly some truth to the conventional view of Burke. In Reflections on the Revolution in France, Burke praised the common-law "science of jurisprudence" as "the pride of the human intellect" and "the collected reason of the ages." Yet this picture of his thought is fundamentally incomplete....

Via Ed Whelan at NRO Bench Memos, who comments;

By Rozansky’s account, a “basic mistake the conventional view of Burkean jurisprudence makes is to think of judicial precedent as law” rather only as evidence of what the law is. (The same mistake is routinely made by those who refer to Supreme Court decisions as “constitutional law”—a bad practice reinforced by decades of legal miseducation.) Burke “believed a precedent should be followed only if it can prove itself to be good evidence of the law” (my emphasis), and he “is therefore even less friendly to precedent as such than is Justice Thomas.”

Burkean jurisprudence allows a Supreme Court justice to consider “a whole host of prudential factors” in deciding whether to grant review of a case. But “[w]hen the question of overruling is squarely presented to the Court, Burke offers the justices no justification for upholding an erroneous precedent.”

01/12/2021

Impeachment and Silver Blaze
Andrew Hyman

Arthur Conan Doyle wrote a short story in 1892 titled “The Adventure of Silver Blaze” about the disappearance of a racehorse and the murder of the horse’s trainer.  It's not quite incitement to insurrection, but still very relevant to current events.  The story is most remembered for this dialogue....

Detective Gregory of Scotland Yard: “Is there any other point to which you would wish to draw my attention?”

Sherlock Holmes: “To the curious incident of the dog in the night-time.”

Detective Gregory of Scotland Yard: “The dog did nothing in the night-time.”

Sherlock Holmes: “That was the curious incident.”

The Constitution says a lot about impeaching incumbent office holders, but is totally silent about impeaching other people.  That silence is very curious indeed. It seems like an indication that impeachment is only for incumbents.  People who believe impeachment is not just for incumbents ought to describe just how many paragraphs of the Constitution would have to be exclusively devoted to impeaching incumbents, in order to deliver the message that impeaching non-incumbents was not intended.

To get around this conclusion, some people point to the rare situation where an impeached official leaves office before the final vote in the Senate.  Actually, that has happened, and the Senate trials of William Blount and William Belknap are briefly described in this excellent Washington Post piece from 2019 (emphasis added):

The House impeached Sen. William Blount of Tennessee in 1797 on treason charges related to land speculation, and the Senate quickly expelled him. Senators held an impeachment trial after expelling Blount, but later acquitted him.  President Ulysses S. Grant’s secretary of war, William Belknap, resigned shortly before being impeached by the House for bribery. The Senate nevertheless heard from more than 40 witnesses in his 1876 trial, “as House managers argued that Belknap should not be allowed to escape from justice simply by resigning his office,” according to the Senate Historical Office.  Neither precedent really settles the question ... [Frank O. Bowman III of the University of Missouri School of Law] said. The Constitution requires a two-thirds Senate majority to convict an official on impeachment charges, but can a simple majority set a working precedent?  “The tricky thing about Belknap is that there are actually two votes at the end of the trial, and one of them was a vote on whether the Senate had jurisdiction in light of the fact that he resigned, and the Senate voted that it did have jurisdiction,” Bowman said. “They voted 37-29 that they had jurisdiction. But on the other hand, then they voted 35-25 for conviction, but that didn’t meet the two-thirds threshold, and one conventional interpretation of that is that many of the senators who voted for acquittal concluded that they lacked jurisdiction. … What does it mean constitutionally? I don’t know.”

I know.  It means the general rule is that impeachment by the House and trial by the Senate are for incumbents only, but there may well be a narrowly limited exception that lasts throughout the normal term of office for a person who leaves office early.  Assuming President Trump is guilty of a high crime or misdemeanor but does not resign, then the House and Senate are perfectly free to amend their rules so as to quickly impeach and convict him before his term ends, but if they are too slow then they cannot.  

If the Senate tries to create a bigger exception than the one in the Blount and Belknap trials, then we would all be in danger of impeachment to prevent us from ever holding office.  That would go far beyond Hamilton's cautionary words in Federalist 65 that the subject of impeachment is "the misconduct of public men, or, in other words, from the abuse or violation of some public trust."  It would be no less of a disaster for public officials to be subject to impeachment decades after they leave office.

I'm not a fan of manufacturing exceptions to the Constitution years, decades, or even centuries after it was written.  In this situation though, I think there's a reasonable argument that the exception was baked into the original document.  For instance, the Constitution says about the President, "He shall hold his Office during the Term of four Years." Taken literally, this would bar resigning like Richard Nixon did, but everyone knows as a matter of common sense that it does not mean that (Article II elsewhere discusses “Removal of the President from Office, or of his Death, Resignation, or Inability...”).   Given that fuzziness about resignation, it is plausible to infer that a President who resigns his office (or otherwise leaves office early) cannot resign from the possibility of being impeached and convicted during the remainder of his term.  If I am mistaken about the effect of resignation (i.e. I am wrong that both the Blount and Belknap trials were constitutional), then impeachment by the House and conviction by the Senate would all have to happen before the president leaves office, or not at all.

FURTHER NOTE BY ANDREW: Blount was a member of Congress, and it may well be that members of Congress are not subject to impeachment.  That was a primary reason why he was acquitted by the Senate.  If indeed members of Congress are not subject to impeachment, then that would strongly support the idea that non-incumbents are not subject to impeachment either, because the rationale is the same: the Constitution is silent about impeaching them.

MICHAEL RAMSEY ADDS: Former Court of Appeals Judge (and Scalia clerk) Michael Luttig has an op-ed in the Washington Post arguing that impeaching or trying a former President is unconstitutional.  It's behind a paywall, but Byron York at the Washington Examiner  quotes Judge Luttig on the matter:

"The crux of my argument is that the very purpose of the impeachment power is to remove an incumbent official," Luttig said. "That seems to me to be crystal clear and inescapably true under the text of the Constitution itself."  

Also , the National Constitution Center has a good balanced analysis by Scott Bomboy.  Here's his description of the Blount precedent that Andrew mentions, which is the only one (that I'm aware of) close enough to the framing to matter to originalists: 

Jared Ingersoll, a signer of the Constitution, was one of the attorneys representing Blount at the trial. Ingersoll argued a senator was not a “civil officer” subject to impeachment, unlike the President and other officials. Representative James A. Bayard of Delaware, the House’s lead manager, replied that the considerations for the Northwest Ordinance of 1787 and the Constitution’s plain language made it clear that senators were civil officers subject to impeachment.

Rep. Bayard and Alexander James Dallas, Blount’s other attorney, debated that secondary question. Bayard believed a civil officer could not escape impeachment through resignation. “The party, by resignation or the commission of some offense which merited and occasioned his expulsion, might secure his impunity. This is against one of the sagest maxims of the law, which does not allow a man to derive a benefit from his own wrong.”

Dallas conceded that argument, but then said Blount had been expelled by the Senate, which was a different matter. “I certainly shall never contend that an officer may first commit an offense and afterwards avoid punishment by resigning his office; but the defendant has been expelled. Can he be removed at one trial and disqualified at another for the same offense?”

In the end, the Senate voted 14 to 11 on January 11, 1799, to dismiss a motion that “William Blount was a civil officer of the United States within the meaning of the Constitution.” It then passed another resolution by a vote of 14–11: “The court is of opinion that the matter alleged in the plea of the defendant is sufficient in law to show that this court ought not to hold jurisdiction of the said impeachment, and that the said impeachment is dismissed.” Many scholars see this as evidence a senator cannot be impeached, and expulsion by a two-thirds vote is instead the proper remedy, but that was not conclusively stated by the Senate.