New Evidence and Arguments About the Scope of the Impeachment Disqualification Clause: A Response to the House of Representatives’ Managers’ Trial Memorandum
[This post was co-authored by Josh Blackman and Seth Barrett Tillman]
On Thursday, February 4, 2021, we discussed the First Amendment arguments in the House of Representatives’ Managers’ trial memorandum. This post will consider the trial memorandum’s arguments concerning the scope of the Impeachment Disqualification Clause. U.S. Const. Article I, Section 7, Clause 3. The clause states: “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. Tillman and Blackman’s position on the scope of the Impeachment Disqualification Clause.
For more than a decade, Tillman has written that the phrase “Office . . . under the United States” reaches only appointed federal positions. In 2014, well before President Trump announced that he would run for the presidency, Tillman published a full-length article opining on the scope of the Impeachment Disqualification Clause, which uses the phrase “Office . . . under the United States.” And for the past four years, we have filed multiple amicus briefs and published several articles contending that the phrase “Office . . . under the United States” does not apply to the presidency, an elected federal official. In 2017, we addressed a frequently asked question about our taxonomy:
Under the [impeachment] disqualification clause, can Congress prospectively bar an impeached officer from being elected to Congress or to the presidency?
. . . [The Impeachment Disqualification Clause] grants Congress the power to prevent a convicted party from being appointed to a federal position, but does nothing to prevent a convicted party from being elected to the House, Senate or the presidency.
Congress has disqualified only three impeached officers (all federal judges) from holding future office, and none have subsequently run for elected federal positions. As a result, we have no substantial law here and little commentary. . . .
We also think that our position is the one that is normatively sound. The impeachment process is a political process that allows Congress to cleanse the government between elections: when there is no time to wait for an appeal to the people. But the impeachment process is a political process. The people doing the impeaching may not only be wrong, but they also might be the wrongdoers. Our position in regard to the scope of disqualification allows the voters, not Congress, to have the last word. If the voters return a disqualified defendant to elective office it is because where in doubt, it is the voters, not their agents in Congress, who should have the last word.
If the Senate votes to convict President Trump, a subsequent vote will be held on disqualification. If the Senate follows past practice in regard to voting on disqualification, it will vote on whether Donald J. Trump will be disqualified from “hold[ing] and enjoy[ing] any Office of honor, Trust or Profit under the United States.” That vote will be an up-or-down vote: yay or nay. Although a Senate conviction requires a 2/3 vote, by tradition, the motion to disqualify carries with a simple majority. In our January 20 post, we explained:
Right now, the Senate is not squarely faced with the question of whether a Section 3 disqualification against President Trump would bar him from running for the presidency in the future. Similarly, even if the Senate convicts President Trump in ongoing impeachment proceedings, and votes to disqualify him under the Impeachment Disqualification Clause, it is not the Senate which will finally resolve the scope of that disqualification. To be sure, members of Congress can state on the record that they are barring Trump from ever serving again as President. But those statements are not dispositive of the constitutional issue. Rather, if Trump decides to seek re-election at some future date, state and territorial boards of election would have to decide if Senate disqualification under the Impeachment Disqualification Clause, or, perhaps, a Senate vote to disqualify him under Section 3 [of the Fourteenth Amendment], would bar Trump from the ballot. Alternatively, boards of election would have to determine the effect (if any) should Congress pass a Section 3 concurrent or joint resolution against President Trump’s holding an “office . . . under the United States.” In each of these situations, as a general matter, the determinations of boards of election could be appealed to the courts. In all likelihood, it is not Congress, but the courts which would have the final say in regard to resolving the scope of congressional or Senate disqualification. (emphasis added).
The Senate may choose to impose disqualification. But, as a general matter, subsequent boards of election and independent courts will determine the scope of a Senate disqualification. This fact will remain true even if a Senate disqualification should expressly purport to bar the defendant from holding the presidency. Moreover, such a declaration would break with tradition. We are not aware of any prior Senate that specifically disqualified a convicted person from holding a specific position. Given the Senate’s few historical precedents with respect to disqualification, we were surprised that the House of Representatives’ Managers’ trial memorandum even addressed the scope of disqualification. Albeit, the memorandum devoted only a single footnote to this question.
The Managers’ trial memorandum, at footnote 275, provides:
President Trump may separately contend that the Constitution does not permit a person to be disqualified from seeking the Presidency. But as the DOJ Office of Legal Counsel concluded under President Obama, “The President surely ‘hold[s] an Office of Profit or Trust.'” See David J. Barron, Applicability of the Emoluments Clause and the Foreign Gifts and Decorations Act to the President’s Receipt of the Nobel Peace Prize, 33 Op. O.L.C. 1, 4 (2009). Indeed, this is the only conclusion consistent with the text of the Constitution, which repeatedly refers to the President as holding an “Office”—including in the Natural Born Citizen Clause, the Presidential Oath Clause, and the Twelfth, Twenty-Second, and Twenty-Fifth Amendments. See Saikrishna Prakash, Why the Incompatibility Clause Applies to the Office of the President, 4 Duke J. Const. L. & Pub. Pol’y Sidebar 143 (2009).
This footnote is perplexing for several reasons. First, the footnote addresses disqualification, which the Senate may choose to impose. However, it is not the Senate that is likely to finally resolve the scope of disqualification.
Second, this footnote appears in a section of the brief that has nothing to do with disqualification. It is lodged at the end of a paragraph arguing that Chief Justice Roberts need not preside over this trial.
Third, the footnote states that its conclusion is the “only” conclusion that is “consistent with the text of the Constitution.” We disagree. There is substantial historical evidence that is inconsistent with the Managers’ conclusion. And the footnote does not address any of this historical evidence. Instead, the memorandum relies on a twenty-first century OLC opinion. It stated that the President was “surely” subject to the Foreign Emolument Clause. This provision applies to those who hold “office . . . under” the United States. The Impeachment Disqualification Clause uses language that is nearly identical. In prior writings, we have explained that this observation in the OLC opinion was conclusory. It cites no judicial precedent or any ratification-era sources, or even any pre-Andrew Jackson sources. Indeed, the Congressional Research Service has distanced itself from OLC’s position.
II. Founding Era and Federalist Era Historical evidence supports our reading concerning the scope of the Impeachment Disqualifica
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