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02/16/2021

Senator McConnell on Impeachment of Former Officers
Michael Ramsey

In the Wall Street Journal, Senator Mitch McConnell: Acquittal Vindicated the Constitution, Not Trump.  This is the best short explanation I've seen anywhere of the unconstitutionality of trying former officers:

Everyone agrees that “treason, bribery, or other high crimes and misdemeanors” [in Article II, Section 4] exhaust the valid grounds for conviction. It follows that the list of persons in that sentence—“the president, vice president, and all civil officers”—likewise exhausts its valid subjects.

If that list of current officers is not exhaustive, there is no textual limit. The House’s “sole power of impeachment” and the Senate’s “sole power to try all impeachments” would constitute an unlimited circular logic with no stopping point at former officers. Any private citizen could be disqualified. This is why one House manager had to argue the Senate possesses “absolute, unqualified” jurisdiction. But nobody really accepts that.

I side with the early constitutional scholar Justice Joseph Story. He observed that while disqualification is optional, removal is mandatory on conviction. The Constitution presupposes that anyone convicted by the Senate must have an office from which to be removed. This doesn’t mean leaving office provides immunity from accountability. Former officials are “still liable to be tried and punished in the ordinary tribunals of justice.” Criminal law and civil litigation ensure there is no so-called January exemption.

Of course, there are counterarguments.  But no counterargument I've seen wrestles with the fundamental point that either Article II, Section 4 is a limit -- or it isn't.  It can't be a limit as to some things and not others.

As an aside, Senator McConnell does not even mention the argument that impeaching and trying a private citizen would amount to an unconstitutional bill of attainder.  The House Managers' Reply Memorandum (discussed here) also did not mention that argument. Yet it was actually the lead argument in the Defense Memorandum regarding the unconstitutionality of the trial.  As the memorandum argued (p. 15, Section A.1(a)): 

An impeachment trial of Mr.Trump held before the Senate would be nothing more nor less than the trial of a private citizen by a legislative body.  An impeachment trial by the Senate of a private citizen violates Article I, Section 9 of the U.S.Constitution, which states that “[n]o bill of attainder . . . shall be passed.”

I have no idea why the defense lawyers thought this was a winning argument, and it seems wrong on multiple levels. For one, impeachment and attainder were separate legal processes in English law.  Attainder was a legislative act; impeachment was in the nature of a judicial proceeding.  The question in the Trump impeachment was whether a former officer could be impeached and tried.  No one doubted that this could happen under eighteenth-century English law, nor that when it did happen it was called an impeachment, not a bill of attainder.  The issue therefore was whether the U.S. Constitution carried this idea of impeachment over from English law, or limited it (in Article II, Section 4).  The Constitution's separate limit on bills of attainder is irrelevant because, again, everyone understood these to be two separate processes.  Indeed, the text confirms this: when the Senate convicts after an impeachment, it is surely has not "passed" a "bill."  Moreover, the defense memorandum cites no founding-era authority (or any modern scholarly authority) supporting its view of bills of attainder.  The entire argument is misconceived and was rightly ignored by both the House Managers and Senator McConnell.  And at the same time, the defense memorandum failed to cleanly make the textual argument Senator McConnell provides in his op-ed, which I would have expected to be its opening argument.  If Senator McConnell is an indication, the defense may have prevailed in spite of its arguments, not because of them.