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Rob Natelson on Impeachment and Methodology
Michael Ramsey

At the Federalist Society Blog, Rob Natelson: How to Research the Constitutionality of Impeaching Former Presidents. From the introduction: 

[M]ost impeachment commentary seems to suffer from the handicap of being politically-driven. It often appears around the time a president has been, or is about to be, impeached, and the author writes to cheer on, or pan, the procedure. In such circumstances, the temptation is to seek pleasing evidence and overlook displeasing evidence. Material previously adduced passes through a distorted lens, and is distorted by the passage.

Legal scholars should re-examine the constitutionality of late impeachment when the subject has become a matter of public indifference—when no prospective impeachments are in sight and scholars can work behind a veil of ignorance about the future. Admittedly, it will then be harder to convince student law review editors to accept impeachment articles: The subject will no longer be “hot.” But the product will be better, and more long-lasting.

In this post, I offer a method for proceeding when we reach that time.

In summary:

Again, my purpose is not to answer the question of whether late impeachment is permissible. My purpose here is to suggest a framework for answering the question, as follows:

First, acknowledge that the Constitution’s language creates an evidentiary presumption against late impeachment. Next, go outside the document to collect contemporaneous evidence of meaning/understanding. Finally, determine if the weight of that contemporaneous evidence is sufficient to rebut the presumption created by the text.

Sounds exactly right to me.  And I think (as the author surely intends) that this is generalizable to most originalist inquiries.

I have two quick points to add.  First, the burden of proof question in originalist analysis is sometimes described as a single step: is there enough originalist evidence of a particular position (with debates over whether the claimant or the government bears the burden as a general matter).  But I think Professor Natelson rightly describes it (at least for textualist originalists) in two steps: (1) what does the text on its face appear to say, and (2) is there non-textual originalist evidence sufficient to overcome that apparent meaning. Importantly, that suggests that sometimes the government will have the burden of producing nontextual originalist evidence and sometimes it won't.  (Of course, there will be disputes about which way the text on its face points, as in the late impeachment context.)

Second, I think the text can establish presumptions of varying strength depending on how clear it is.  Text that appears very clear on its face should only be overcome by very clear nontextual originalist evidence to the contrary.  Text that is nearly ambiguous doesn't require much nontextual originalist evidence to shift from one meaning to another.  (I think this is a logical extension of Professor Natelson's framework with which he would agree).