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02/10/2021

Josh Blackman & Seth Barrett Tillman on the Impeachment Disqualification Clause
Michael Ramsey

At Volokh Conspiracy, Josh Blackman & Seth Barrett Tillman: New Evidence and Arguments About the Scope of the Impeachment Disqualification Clause: A Response to the House of Representatives' Managers' Trial Memorandum.  From the introduction:

This post will consider the [House Managers'] trial memorandum's arguments concerning the scope of the Impeachment Disqualification Clause. U.S. Const. Article I, Section 7, Clause 3. The clause states: "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."

...

For more than a decade, Tillman has written that the phrase "Office . . . under the United States" reaches only appointed federal positions. In 2014, well before President Trump announced that he would run for the presidency, Tillman published a full-length article opining on the scope of the Impeachment Disqualification Clause, which uses the phrase "Office . . . under the United States." And for the past four years, we have filed multiple amicus briefs and published several articles contending that the phrase "Office . . . under the United States" does not apply to the presidency, an elected federal official. In 2017, we addressed a frequently asked question about our taxonomy:

Under the [impeachment] disqualification clause, can Congress prospectively bar an impeached officer from being elected to Congress or to the presidency?

... [The Impeachment Disqualification Clause] grants Congress the power to prevent a convicted party from being appointed to a federal position, but does nothing to prevent a convicted party from being elected to the House, Senate or the presidency.

...

We also think that our position is the one that is normatively sound. The impeachment process is a political process that allows Congress to cleanse the government between elections: when there is no time to wait for an appeal to the people. But the impeachment process is a political process. The people doing the impeaching may not only be wrong, but they also might be the wrongdoers. Our position in regard to the scope of disqualification allows the voters, not Congress, to have the last word. If the voters return a disqualified defendant to elective office it is because where in doubt, it is the voters, not their agents in Congress, who should have the last word.

And from further along:

Our position was also expressed during the 1799 Senate impeachment trial proceedings of Senator William Blount. He was the first officeholder impeached under the Constitution. During the Senate trial, both Blount's counsel and a House Manager articulated their views about the scope of the Impeachment Disqualification Clause. The views they articulated are consistent with the view we have advanced. 

Blount was represented by Alexander J. Dallas. Dallas is well known in today's legal community for serving as the first Reporter of Decisions of the United States Supreme Court. He also held cabinet positions and high state office in Pennsylvania. Dallas explained that the Impeachment Disqualification Clause serves as "in effect, [as] a check or limitation to the general power of the Executive." How? The Senate, by voting to disqualify an officeholder, "declar[es] that the delinquent officer, shall be removed, and that he shall never be re-appointed." Dallas's understanding of the Impeachment Disqualification Clause's design was limited: the Senate had the power to restrict the "attributes and exercises of Executive Authority" that includes the power "to appoint, to re-appoint, or to abstain from re-appointing." 

Later in the trial, Dallas reaffirmed his position. He said, "it is manifest, that by the power of [i]mpeachment, the people did not mean to guard against themselves, but against their agents; they did not mean to exclude themselves from the right of re-appointing, or pardoning; but to restrain the Executive Magistrate from doing either, with respect to officers, whose offices were held independent of popular choice." Here too, Dallas's position directly supports the view we have advanced. The Impeachment Disqualification Clause was not designed to serve as a "guard against" the People who use "popular choice" to elect federal officials. Rather, this provision would serve to "guard against" the President's undermining a House impeachment and Senate removal. Consider a situation where a defendant is impeached, tried, convicted, removed, and disqualified. Then, the President re-appoints that person to another appointed position, or even to the same position he previously held. This reappointment would undermine the House's and Senate's power in the impeachment context. In other words, the Impeachment Disqualification Clause prevents the President from re-appointing the disqualified defendant to an office "held independent of popular choice." ...