A Textualist/Originalist Case Against the Power to Impeach and Try Former Presidents
My co-bloggers have made powerful arguments for (Mike Rappaport, John Vlahoplus) and against (Andrew Hyman, David Weisberg) Congress’ power to impeach and try former officers. This post restates and expands the textualist/originalist case against Congress’ power.
To begin, a problem with interpreting the Constitution’s impeachment provisions is that they are scattered across three sections in two different articles. The framers would have done better to draft a single impeachment section. The order in which one reads the provisions is important to discerning their meaning.
First, read the impeachment provisions this way:
The President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors. The House of Representatives … shall have the sole Power of Impeachment. The Senate shall have the sole Power to try all Impeachments. … [N]o Person shall be convicted without the Concurrence of two thirds of the Members present. 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: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.
This order makes much sense. Read in this order, the natural interpretation is that the first sentence establishes the impeachment power. It says who can be impeached (the President, etc.), what impeachment accomplishes (removal from office), and for what one can be impeached (“high Crimes and Misdemeanors”). The subsequent sentences describe how this impeachment power is distributed among institutions (the House impeaches, the Senate tries, with a supermajority conviction requirement). The last sentence limits the scope and effect of punishment upon conviction. In this reading, the disqualification clause appears ancillary — in addition to removal from office, the Senate can add disqualification (thus the conjunctive “and”).
But the provisions could be read in a different order:
The House of Representatives … shall have the sole Power of Impeachment. The Senate shall have the sole Power to try all Impeachments. … [N]o Person shall be convicted without the Concurrence of two thirds of the Members present. 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: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law. The President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.
Now the opening sentences convey an undefined power of impeachment (whatever that may mean) divided between the House and Senate. The subsequent sentences limit the power: punishment can be only removal or disqualification, and (in the last sentence) it is directed that if a sitting President or other officer is impeached and convicted for high crimes or misdemeanors, they “shall” be removed (no discretion). This appears to be the reading given by John Vlahoplus here.
The latter order has the advantage of being the order in which the sentences appear in the Constitution. And I agree it is a possible reading. But I think there are a number of reasons to prefer the former order.
First, this appears to be the way the drafters thought about it. At the Constitutional Convention, the delegates spent some time debating the sentence that became Article II, Section 4. In particular, they debated whether “high Crimes and Misdemeanors” was the right standard. The understanding seems to have been that this language defined and limited the impeachment power. That is, they thought that if they adopted the “high Crimes and Misdemeanors” standard, there could not be impeachments for other types of actions that did not meet the standard. In contrast, they did not spend much time at all on the general concept of impeachment, other than as defined in that sentence. Thus they understood the sentence that became Article II, Section 4 as defining the impeachment power. Their reading, in the sense of the alternatives stated above, began with Article II, Section 4.
That approach is consistent with a related understanding reflected in the framing debates: the framers saw impeachment as principally about removal. In the debates, that was the central focus. They did not talk about the advantages or disadvantages of a general power of disqualification, or a general power of impeachment of private citizens. That suggests that the drafters understood disqualification as an ancillary punishment that could be added to removal of officers, not as a freestanding punishment that could be wielded against private citizens.
Second, the alternative reading of a largely unlimited impeachment power seems implausible. The consequence of the second reading is that the House and Senate could impeach and try anyone for any reason. The power wouldn’t be limited to officers or former officers, and it wouldn’t be limited to “high Crimes and Misdemeanors.” True, it would be limited by the scope of punishment: only removal from office or disqualification from future office. But that is still an extraordinary power, and one not mentioned in the drafting or ratifying debates.
Professor Rappaport, responding to an earlier version of this argument, says that limits could be derived from eighteenth century English law. As a general methodological approach, I agree. But in my understanding, eighteenth century English law did not have any material limits on the impeachment power. Impeachment was just a judicial proceeding in the parliament. In particular, it was not clear that “high Crimes and Misdemeanors” was the required standard under English law. Indeed, that is exactly why the framers had their debate over the language of Article II, Section 4. They wanted to specify which standard from English law would govern American impeachments.
Further, the common understanding in the post-ratification period and continuing to today is that Article II, Section 4 limits the impeachment power. That is, people understood that only officers (or perhaps former officers) could be impeached only for “high Crimes and Misdemeanors” — and they understood that this limit arose from Article II, Section 4. For example, in the 1799 impeachment trial of William Blount, the central question was whether Blount (a former Senator) could be tried. And the threshold question there was whether Senators are “Civil Officers of the United States.” Blount was acquitted, and the outcome is commonly taken as indicating that Senators are not such officers (and so not subject to impeachment). But this debate and conclusion makes sense only if Article II, Section 4 defines the scope of the impeachment power.
It’s true that (very occasionally) the Senate held a trial after a former officer had left office (Blount, plus Secretary of War William Belknap in 1876, and perhaps one or two others). But in each case the principal claim was that the impeachment power attached to the officer when that officer was in office (and thus that the limits of Article II, Section 4 were satisfied). But in any event these are scattered precedents — by far the more significant precedent is the longstanding assumption that the Senate cannot try private citizens and cannot try people other than for high crimes and misdemeanors.
In sum, my view is that the best reading of the text’s original meaning is that Article II, Section 4 defines the impeachment power. It provides a way to remove sitting officers for specified misconduct. It does not do more than that. Article I, Section 3 adds that the Senate, in removing an officer pursuant to this power, may also impose future disqualification (removal “and” disqualification).
There are three main counterarguments. The first is that it would be implausible (even “absurd”) to allow an officer to escape future disqualification by the fortuity of the officer’s term expiring or the expediency of an abrupt resignation. One could respond to this claim by implying a power to try officers who resigned, or whose terms expired, after being impeached (as Andrew Hyman and Keith Whittington, respectively, suggest). But in addition to being atextual, I don’t think the power’s purpose compels it. As discussed, the framers’ central focus in creating impeachment power was removal of a miscreant officer, before the officer could do further damage. Once the officer resigned or left office, that purpose would be accomplished. And the threat of future disqualification upon conviction might be seen as an incentive to leave office without contesting the impeachment (sort of in the nature of an implicit plea bargain). One may speculate which approach better suits the framers’ purposes. But neither seems absurd or implausible. A narrow reading (limited to sitting officers) accomplishes the framers’ central purpose of removal.
Second, it’s argued that English law (and some post-Revolution state practice) allowed impeachment of private citizens. I agree that this would be highly relevant if the Constitution’s text didn’t establish its own limits. But it’s quite plausible that the framers wanted to limit the scope of impeachment as compared to English law. We know they did with respect to some aspects, including the extent of punishment.
The third counterargument relies on precedent — especially the Belknap precedent mentioned above. I’m surprised that anyone (especially any originalist or traditionalist) regards this precedent as meaning anything. It occurred 88 years after ratification (so not indicative at all of original meaning); it was a single incident almost 150 years ago (so not indicative of an common historical practice). Moreover, it occurred in a highly partisan atmosphere. The Democrats, in the midst of the intense post-war debate over reconstruction, had recently regained control of Congress and were anxious to further embarrass the scandal-plagued Grant administration in the run-up to the 1876 elections. Ultimately Belknap was acquitted, with voting largely on partisan lines. This does not seem a reliable exposition of constitutional principle. (Perhaps there are other meaningful precedents — some have mentioned the Blount impeachment, which also seems inconclusive — but the surprising focus on Belknap indicates that there aren’t others).
As a result, neither purpose nor precedent seems strong enough to overcome the simple textual argument: Article II, Section 4 establishes the scope of the impeachment power: only officers can be impeached and tried, and only for high crimes or misdemeanors.
