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Originalism in the House Managers' Brief
Michael Ramsey

In the Reply Memorandum filed by the House Managers in the Trump impeachment trial, on the subject of trying ex-Presidents, the Managers say (p. 15):

The “originalist” case for the Senate’s jurisdiction here could hardly be stronger.

Again, originalism is (a part of) our law.  (Though in scare quotes, apparently.)  I don't think a document filed in this context 30 years ago would have invoked originalism by name.  Of course, the memorandum goes on to discuss other types of constitutional evidence, particularly precedent, but it shows that originalism has a "seat at the table" in a way it didn't in earlier times.

I should probably just declare victory there, but while on the subject, how strong is their originalist case?  I would say they overstate quite a bit in saying it "could hardly be stronger."  First, here's their originalist argument (leaving aside arguments based on text) (footnotes omitted): 

President Trump does not dispute that the Framers looked to English practice as a model for the federal impeachment power. And President Trump concedes that, in the English system, officials could be impeached and disqualified after leaving  office. In fact, as we described in our opening brief (at 51), Warren Hastings, a former official, faced impeachment charges in England even as the Framers gathered in Philadelphia to draft our Constitution—and the Framers cited his case as one in which impeachment was appropriate. President Trump is therefore left to make the implausible argument that the Framers intended to depart from this settled English practice without saying so.

President Trump similarly concedes that numerous state constitutions during the founding era provided for the impeachment of former officials. None prohibited such impeachments. Indeed, in some states, only former officials could be impeached, which confirms that the Framers surely understood that the impeachment power could also encompass former officials. Had they intended to depart from that understanding, they would have said so.

Precedent dating back more than 200 years makes the Senate’s jurisdiction here even clearer... After leaving office, President John Quincy Adams recognized that he was “amenable to impeachment by [the] House for everything I did during the time I held any public office.” And the Senate has several times affirmed that it has the power to try, convict, and disqualify officials after they leave office. When Senator Blount was expelled from the Senate after being impeached in 1798, he expressly disavowed at his Senate trial the radical claim (made here by President Trump) that former officials were categorically exempt from trial.

I agree these are plausible originalist arguments.  But they aren't airtight.  As to English practice, it's true that it included trials of former officials (as in the Hastings episode), and it's true that the Framers looked to the English practice to some extent.  But the Framers also rejected English practice to some extent (for example, by limiting the types of punishments that could be imposed).  Nonetheless, it's surely relevant that the Framers knew about the English practice.  Indeed, I think that is probably the best originalist evidence on this side.

The other points seem weaker.  The fact that some state constitutions expressly allowed impeachment and trial of former officials seems inconclusive at best.  Arguably it cuts the other way.  It might suggest that if former officials are to be subject to impeachment, that needs to be stated expressly.  The originalist case would be stronger if practice under state constitutions without an express provision allowed impeachment of former officials.  But I'm not aware of such practice, and the Managers don't claim there was any.

The Quincy Adams quote indicates that he thought former officials could be impeached.  But Adams was not a Framer (nor was his father, for that matter), and the quote is from long after ratification.  Also, it's a single isolated quote, which wouldn't be decisive originalist evidence even if closer to ratification. The originalist case would be stronger if quotes from nearer ratification (especially from the drafting or ratifying debates) indicated a general consensus around impeachment and trial of former officials.  The Managers don't cite anything like this, and as far as I know it doesn't exist.  My impression is that in the Convention and in The Federalist, the Framers talked about impeachment only as it applied to current officers.  That doesn't prove it couldn't apply to former officers, but it weakens the argument somewhat.

The Managers also acknowledge that Story's Commentaries (from around the same time as the Adams quote) seem to indicate that impeachment and trial are limited to current officers.  They say Story is "equivocal," and that seems right -- here is the Story quote (Section 801 of the Commentaries): 

[I]t would seem to follow [from Article II, Section 4], that the senate, on the conviction, were bound, in all cases, to enter a judgment of removal from office, though it has a discretion, as to inflicting the punishment of disqualification. If, then, there must be a judgment of removal from office, it would seem to follow, that the constitution contemplated, that the party was still in office at the time of the impeachment. If he was not, his offence was still liable to be tried and punished in the ordinary tribunals of justice. And it might be argued with some force, that it would be a vain exercise of authority to try a delinquent for an impeachable offence, when the most important object, for which the remedy was given, was no longer necessary, or attainable. And although a judgment of disqualification might still be pronounced, the language of the constitution may create some doubt, whether it can be pronounced without being coupled with a removal from office.

I'd say this indicates Story thought it was an open question, though he leaned toward thinking former officials could not be impeached or tried.  At least, it indicates that Quincy Adams wan't stating a consensus position.

Finally, Blount's main argument was that Senators couldn't be impeached and tried because they weren't covered by Article II, Section 4.  (It appears the Senate decided not to proceed with the trial on this ground).  But this argument cuts against the Managers' interpretation.  Their position is that Article II, Section 4 

“simply establishes what is known in criminal law as a ‘mandatory minimum’ punishment: If an incumbent officeholder is convicted by a two-thirds vote of the Senate, he is removed from office as a matter of law." (p. 13, quoting Charles Cooper).

However, Blount's argument that Senators can't be impeached relies on Article II, Section 4 being a limit on who can be tried, not just a "mandatory minimum."  Thus it indirectly supports Trump's argument that Article II, Section 4 also excludes former officers from being tried.

In sum, originalist evidence in support of the House position could be a lot stronger.  As it is, I think it's largely inconclusive.  (I'm persuaded by the textual argument, as discussed before, and I don't find the non-textual originalist evidence enough to overcome it.)

[Ed.: yes, I know I said no more discussion of the impeaching-former-Presidents argument, but at least I held off for a week or two.]