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08/22/2022

May the Senate Properly Try a Former Officer Who Was Impeached by the House While Still in Office?
David Weisberg

Although one fervently hopes that the timeliness of the issue has very much receded, there recently has been more commentary on impeachment.  Prof. Michael McConnell has written an article contending that, if a president, vice-president, or civil officer is properly impeached by the House (whatever that requires) while still in office, that person may properly be tried by the Senate even after he or she has left office.  Andrew Hyman dissents in a recent post, and I join him.  (I previously expressed my own opinion here.)  But I’d like to add two additional points to the mix.

First, Prof. McConnell writes:

To be sure, sitting officers convicted on impeachment must be removed, but any person convicted on impeachment may be disqualified from future office. There is no textual or logical reason to assume that only person[s] who can be removed can be tried and convicted.

With respect, I disagree with that conclusion.  There is, I think, strong textual support for the view Prof. McConnell rejects. 

In relevant part, Art. I, Sec. 3, Cl. 7 recites:

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[.] 

I agree completely with Prof. McConnell that “sitting officers convicted on impeachment must be removed.”  But, with that understanding, one would expect that, if former officers who had been impeached while in office could properly be tried in the Senate when out of office, the clause would read:

Judgment … shall not extend further than to removal … , or disqualification … , or both[.]

With those very minor textual modifications, it would have been made manifest that disqualification may properly be imposed without removal, that is, that a former officer may be disqualified.  But that is not the actual text.  The actual text, which uses the word “and,” implies that disqualification must always be coupled with removal; it is not a stand-alone punishment.   

The second point turns on a certain symmetry between impeachment in the Senate and disciplinary proceedings in Congress.  I assume everyone agrees that members of the Senate and the House of Representatives may not be impeached under Art. I, Sec. 2, Cl. 5.  They are instead subject to discipline by the body in which they serve pursuant to Art. I, Sec. 5, Cl. 2, which recites:   

Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.  

It is indisputable that neither House may punish a non-member.  The clause explicitly provides that each House may punish “its Members”—not non-members who formerly were members.  It also does not provide that a former member may be punished if disciplinary proceedings had been formally commenced before he or she became a non-member.  I’m no historian, but I’m not aware of any precedent for either House purporting to punish a former member. 

There is what I consider a highly significant similarity between disciplinary proceedings in the Houses of Congress and discipline via impeachment in the House and trial in the Senate: A two-thirds vote is required both in either congressional body to expel a member and also in the Senate to remove a sitting president, vice-president, or civil officer.  It is difficult to imagine that the necessity of a two-thirds vote in both proceedings is a mere coincidence.

It is true that the Senate may impose disqualification, and there is no analogous punishment for expelled members of Congress.  So, the symmetry between the two proceedings is not perfect.  The lack of perfect symmetry is not, I would think, a reason to embrace a position that exacerbates asymmetry. 

I personally can think of no persuasive reason why former members of Congress should not be subject to further discipline, while former presidents, vice-presidents, and civil officers in the executive and judicial branches should continue to be subject to further discipline.  I therefore believe that, because former members of Congress are not subject to congressional discipline (even if disciplinary proceedings against them had been formally commenced before leaving Congress), the better view is that former presidents, vice-presidents, and civil officers in the executive and judicial branches should not be subject to trial in the Senate (even if they had been formally impeached before leaving office).