More on the Constitutionality of Impeaching Ex-Officials

Then–President Donald Trump departs the White House, January 12, 2021. (Kevin Lamarque/Reuters)

Like Ramesh, I believe it is constitutional for the Senate to conduct impeachment trials for former officials, so it’s no surprise that I am in lockstep with his critique of the essay by professors Robert Delahunty and John Yoo, who’ve made a comprehensive case for the unconstitutionality position — which they style as “the originalist case,” though I find Dan McLaughlin’s more persuasive. (After all, Dan agrees with me!)

In particular, Ramesh is right that Robert and John are mistaken in inferring that our “it’s constitutional” side has conceded the force of their textual argument in support of the “it’s unconstitutional” position.

The misunderstanding, I think, is based on the subtle but significant difference between A) acknowledging that a textual argument is plausible, and B) conceding that it is dispositive (such that our only recourse is to argue against the text). Some proponents of the textual argument for unconstitutionality (John Bolton, for instance) are so convinced by it that they portray it as incontestable. This leads to a flawed assumption that those of us who rely on historical and precedential evidence are, indeed, making a wholly atextual argument.

What we’re saying (or, at least, what I am saying) is that, while the “it’s unconstitutional” side’s reading of the germane provisions is rational, it is not nearly as airtight as they suggest.

For example, Article II, Section 4, says that “The President . . . shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” Now, it is rational to read this as meaning conviction in an impeachment trial is meant to apply to the incumbent president who can be removed from office as a result, and thus infer its inapplicability to a former president who cannot be removed. Yet, to acknowledge that a construction is rational is not the same thing as saying it is the only possible rational construction. It would also be rational to read the clause (as I do) merely to mean that if the defendant in the impeachment trial happens to be the incumbent president, he must be removed from office. That is, the clause says nothing about — i.e., it places no limitations on — who else might be properly subjected to an impeachment.

Notice, moreover, that the clause also says nothing about what other penalties besides removal might be imposed on an incumbent president. If Article II, Section 4 was meant to have the all-encompassing force that the “it’s unconstitutional” side gives it, one would think that the only available penalty for impeachment would be removal — after all, just as the clause only refers to incumbent presidents, it also only refers to the removal penalty. But we know removal is not the only penalty. Article I, Section 3 states that, besides removal, judgment in an impeachment case may include disqualification from future office.

Also notice that we can say with certainty that removal and disqualification are the only two impeachment penalties. How do we know? Because Article I, Section 3 explicitly says so. Why is that worth noting? Well, it suggests that when the Framers wanted to write a clear exclusion, they did so. But they did not write one excluding former officials from impeachment — and at the same time took pains to include a disqualification penalty that would make it rational to impeach a former official even if the official could no longer be removed.

Again, that’s not the only plausible reading. I do not pretend to be in possession of some Rosetta Stone that enables me to make an undeniable, dispositive textual claim. I am simply saying there is no such textual claim. We are all groping for rational inferences from the disconnected clauses. That is what lawyers do when a text is not indisputable.

What lawyers in that situation also do is consider evidence besides the text that may tell us what the public understanding of a term or clause was at the time the Constitution was adopted. To repeat, to do this is not to make an atextual argument; it is to make an interpretive argument about the disputed text.

For example, Parliament’s impeachment of Warren Hastings clearly influenced the Framers’ thinking about impeachment. Now, the fact that Hastings was no longer in office (as governor-general of Bengal) at the time of his impeachment does not necessarily mean the Framers intended to adopt Parliament’s application of impeachment to former officials. It would be rational to infer, however, that if the Framers were convinced that Parliament’s approach on this point was ill-advised, they would have said so some place — at least in the debates if not in the Constitution itself. But there is no indication of that. Instead, the Framers invoked a term, impeachment, that was known at the time to apply to former officials — just as, in lieu of “maladministration,” they adopted “high Crimes and Misdemeanors,” the then-longstanding British standard that was alleged against Hastings by Edmund Burke, who led Parliament’s impeachment prosecution.

Finally, some general thoughts on why I’ve become convinced that all the lawyering is missing a fundamental point. This is one of those situations in which lawyers are wielding undue influence over something that, in essence, is not a legal issue.

Because lawyers dominate debates over constitutional questions, they can’t help but bring to bear the constitutional-law toolkit: all the principles about construction, textualism, original public meaning, the effect of precedent, “organic” interpretation, and so on. That is the professional discipline. And it is all well and good — indeed, it’s essential — when we are dealing with a legal issue.

The Framers, however, made impeachment political, not legal. In doing so, they gave plenary authority over impeachment trials to the Senate, a political body. They did so precisely in the expectation that, in resolving impeachment, senators would bring to bear knowledge, experience, and political sensibility. That is, they would have much broader discretion in arriving at a judgment than is permitted in a judicial proceeding, where jurors A) are expected to consider only the factual evidence admitted into the record, and B) may apply only legal principles on which they’ve been instructed by the judge, who must derive those principles from settled law.

The Constitution’s text does not settle the question whether a non-incumbent may be subjected to an impeachment trial, conviction, and disqualification. What the Constitution’s text does settle, though, is that impeachment trials are completely controlled by the Senate. The only real boundary the Constitution sets is that the Senate may conduct an impeachment trial only if the House has found an impeachable offense. But whether and how to conduct the trial are political questions, not legal ones. The Supreme Court is not going to weigh in — except, perhaps, to direct any lower federal court that presumes to weigh that it must butt out.

In then-president Trump’s first impeachment, there was an issue that was similarly political but pored over nonetheless by constitutional legal beagles: What are high crimes and misdemeanors? It is another term that the Constitution’s text does not settle. As a result, there was no shortage of resort to Hamilton’s explication of the concept; to the exchanges between Mason and Madison during the Philadelphia Convention; to the laundry-list of offenses that Burke alleged against Hastings; and so on.

In the end, though, is was the commonsense reasoning of a seemingly lesser light, Gerald Ford, that carried the day. In the early Seventies (ironically, four years before he became president due to the near impeachment of Richard Nixon), Ford was the House minority leader trying (with Nixon’s encouragement) to launch impeachment proceedings against Supreme Court Justice William O. Douglas. Pressed on the question of how to define high crimes and misdemeanors, Ford said that they are “whatever a majority of the House of Representatives considers them to be at a moment in history.”

Yes . . . and similarly, with the Constitution’s text providing no definitive answer, if the House has voted an article of impeachment against a current or former federal officer, including a president, then an impeachment trial may he conducted if a majority of the United States Senate considers it appropriate to do so at that moment in history.

It should go without saying, this is not about whether conducting such a trial is prudent, just whether it’s permissible. That’s up to the Senate.

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