The Federal Anti-Bribery Statute of 1790 Doesn't Prove that the U.S. Presidency is Not an Office of Honor, Trust, or Profit Under the United States
Andrew Hyman
There has been considerable discussion recently about whether the U.S. Constitution bars the U.S. President from simultaneously being a U.S. Senator or Representative; bars him from accepting presents, emoluments, and offices from foreign nations without the consent of Congress; and allows the U.S. Senate to bar him from returning to the presidency after being impeached and removed. Many people have written on this subject, and I have argued in the affirmative because the President is an "officer under the United States" subject to all those generic constitutional prohibitions.
Professors Seth Barrett Tillman and Josh Blackman have written a new blog post arguing the other side, in which they point to a federal anti-bribery statute from 1790, which says that a defendant convicted of bribing a federal judge....
shall forever be disqualified to hold any office of honor, trust, or profit under the United States.
Since the President's qualifications are to be found exclusively in the Constitution, ergo (they suggest) the presidency must not be within the meaning of the term "office...under the United States" as described in this 1790 statute, and therefore presumably not within the meaning of that same term in the Constitution itself. This is not a new suggestion; for example, Professor Tillman wrote about it in a 2013 law review article (see p. 316). I disagree, because there is a big difference between a criminal disqualification and a civil disqualification, and the Constitution refers only to the latter in Article II, Section 1:
No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States.
Same for the 22nd Amendment which disqualifies people who have already served two terms, which is a civil rather than criminal provision. Consequently, the expressio unius canon bars Congress from adding further disqualifying characteristics of a civil nature, whereas disqualifying convicted criminals is quite another matter, especially if the disqualification is explicitly stated in a federal statute in advance, rather than merely being asserted retroactively when an elected convicted criminal requests to be seated in Congress. In short, the 1790 statute does not show that the President is not an officer under the United States.
Professors Blackman and Tillman mention Federalist 52 by James Madison, which is relevant here even though it discusses qualifications for members of Congress instead of presidents, and it's well worth quoting at length:
A representative of the United States must be of the age of twenty-five years; must have been seven years a citizen of the United States; must, at the time of his election, be an inhabitant of the State he is to represent; and, during the time of his service, must be in no office under the United States. Under these reasonable limitations, the door of this part of the federal government is open to merit of every description, whether native or adoptive, whether young or old, and without regard to poverty or wealth, or to any particular profession of religious faith.
This is a proper use of the expressio unius canon; Madison lists a bunch of civil qualifications, and then concludes that a bunch of other civil qualifications are impermissible. Tellingly, Madison did not add anything like this: "whether convicted criminal or innocent citizen." I do not mean to suggest that Congress can (or cannot) bar criminals from being seated, but if Congress cannot do that, then it is likely because (per Hamilton), "Its authority would be expressly restricted to the regulation of the TIMES, the PLACES, the MANNER of elections" (see Fe
Even if the Constitution bars Congress from using presidential disqualification as a punishment for federal crimes (and I doubt it does for the reasons explained above), that could easily be understood as creating an exception to the general rule provided by the 1790 anti-bribery statute, instead of proving how the founders defined “officer” or “officer under the United States.” After all, the 1790 statute did not say, “shall forever be disqualified to hold any office of honor, trust, or profit under the United States including the presidency.”
Although Blackman and Tillman go on to discuss Section Three of the Fourteenth Amendment, I'll refrain from going there now. I just wanted to point out that the implications of the 1790 anti-bribery statute are not as profound as Blackman and Tillman make out.