Thursday, January 28, 2021

Why Are Republicans Unable to Understand the English Language? (impeachment edition)

by Neil H. Buchanan

At this point, I think Republicans have done Democrats a favor by insisting on delaying the start of the impeachment trial.  To be clear, I am talking about the second delay, which pushed the trial back from the first few days of President Biden's term to the week of February 8.  The first delay, when Mitch McConnell refused to take up the issue at all before the end of Donald Trump's term, was both dangerous (because we are simply lucky that nothing worse happened in Trump's final few days) and dishonest ("It's too soon" having been immediately followed by "It's too late!").

But as to the second delay, I think that Democrats have to be pretty happy.  Republicans are disgracing themselves once again, all the while forcing an outcome that their most fully disgraced members -- presidential pretenders all -- truly do not want but have to pretend to support.  Meanwhile, more and more evidence continues to pile up regarding Trump's culpability, even as we learn additional depressing facts about the organization and execution of the January 6 coup plot.
Even though the Republican caucus will almost surely not see seventeen defections, this is still good news for Democrats, from a political standpoint.  There is a point at which further delay would be more damaging than helpful, but I do not think that two weeks is anywhere near that limit, and if it were up to me, I would be fine with an additional postponement.  If, as Republicans self-fulfillingly insist, this is to be a partisan show trial with no doubt as to the outcome, it will be a better show if it includes even more evidence to put on display.

But of course, Senate Republicans -- led by Rand Paul,  the poster child for the Dunning-Kruger effect and the man who is in over his head on every issue (seriously, does he know less about economics or law, his two favorite subjects on which to issue self-important pronouncements?) -- tried and failed to prevent a trial from happening at all.  They loudly proclaimed to the world that it is unconstitutional to impeach an ex-president.  That assertion is so wrong that it is worth exploring just how crazy the Republicans' position is.  And that exploration leads inexorably to a rhetorical question: Can they not read?
Today, I published a new Verdict column: "Impeaching a Former President Is Plainly Constitutional."  I chose the modifier "plainly" in the title to make clear that this argument can be fully resolved by looking at the relevant constitutional text itself.  It is not difficult at all to determine what that text does and does not say.  Much like my writings about the presidential pardon power (most recently here), I wrote in exasperation, wondering how supposedly informed and at least semi-literate people can say with a straight face that text means something other than what it means.
When it comes to pardons, my added frustration is with the large numbers of liberals who have thrown up their hands and agreed with a ridiculous over-interpretation of the text; but on the question of impeachment, it is at least a relief to see that everyone except Trump's slavish enablers has gotten it right.  Indeed, in my Verdict column, I take pains to say that there is nothing at all wrong with liberals' invocation of historical precedent, original public meaning, the founders' intent, or the future dangers that would be created by exempting a former president from being impeached and tried.
It is just that none of that is necessary here.  For a party and political movement that supposedly exalts textualism, Republicans and so-called constitutional conservatives can be conveniently bad at reading text.  Or put differently, a nativist movement that screams at immigrants to "Learn English!" ought to be led by people who do not struggle to understand their native tongue.

Although I discuss some additional ancillary issues, the heart of today's Verdict column is the textual analysis, which ends up being quite simple to explain.  Trump's excuse-makers have seized on Article II, Section 4 of the Constitution, which reads: "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."
Somehow, Paul and others have decided that this means that only sitting presidents, vice presidents, and civil officers can be impeached.  But that is simply not how the English language works.  That clause is a basic if-then statement: If the sitting president is impeached and convicted, then he shall be removed.  It does not say that no one else can be impeached, nor does it say that the only people who can be impeached are current officeholders.
What I did not point out in today's column is that the appropriate interpretation of this text does not rob it of any meaning or turn it into surplusage.  That is, the correct reading does not limit who can be impeached, but its import lies in making it obligatory that impeachment and conviction result in being kicked out of office -- "shall be removed" is different from "can be removed" or "will be removed only if additional steps are taken or conditions are met."  The Senate cannot, for example, follow up a conviction by saying, "... but we'll only censure him while leaving him in office."

In other words, the constitutional text that Republicans think is their slam-dunk case against after-term impeachments and convictions has nothing to do with that question at all.  They might as well point to, say, the Commerce Clause as proof that the Constitution does not allow such impeachments.  It would be just as (ir)relevant.
And as an aside, I feel obliged to note that Republican bothesidesism on this question -- including Ted Cruz's lulu: "Apparently every January we’re going to be doing another impeachment,” he said. “So I guess next year, I don’t know, maybe it’ll be the impeachment of Jimmy Carter, or the impeachment of Bill Clinton, or the impeachment of Barack Obama, because that’s what we do in Januaries." -- should not cause any non-Republican to say, "Gee, I guess I wouldn't like it if the shoe was on the other foot."  If Republicans (or anyone else) can prove that Jimmy Carter committed high crimes and misdemeanors as president, I will be surprised but nonetheless willing to listen to evidence and legal argument.  I am at least highly confident that there were no attempted insurrections led by Carter, Clinton, or Obama of which we have until now been unaware.

But if the Republicans' mangling of Article II, Section 4 is embarrassing, what can one say about their pretending that Article I, Section 3 does not exist?  "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" means that there are at most two consequences that can follow after being impeached and convicted: removal from office, and being barred from holding office again.  This text obviously does not say that we can only do the second thing when we can also do the first thing.  It says only that nothing more than those two things can happen.  Again, it is simple to know what those words mean.  That is, I am not making a deep interpretive move but rather saying that the phrase "shall not extend further than" actually has an obvious and unambiguous meaning.

So what can we do when only the second consequence is available, because the convicted person is already out of office?  Again, there is no mystery here, and to belabor the point, the text says that two things can happen, and if one has already happened but the other has not, then you can go ahead and do that second thing.  Notably, that text is not obligatory, so disqualification from future office is not required, but it is available.  Again, then, the text provides clear and limiting meaning -- just not the meaning that the Paul/Cruz crowd have invented.
In today's Verdict column, I offer this analogy: "Suppose that a state’s drunk driving law were to say that, upon being convicted of driving while intoxicated, the driver shall lose his license and be prohibited from driving in the state for the next ten years. A person who was driving drunk and without a valid driver’s license would obviously not be able to say: 'Sorry, I don’t have a driver’s license for you to revoke, so you can’t do anything to me!'"  It would be nonsense to say that the state could not prohibit the person from getting a driver's license going forward.
After putting that column (and then myself) to bed last night, I realized that the analogy could be tweaked to make it fit the current question even more tightly.  As it stands, the analogy demonstrates the absurdity of saying that multi-part consequences of bad actions are an all-or-nothing deal.  But applying it to Trump's situation, we would say that the drunk driver did have a valid driver's license at the time of his offense, that the license was going to expire in two weeks, and that his lawyer delayed the court appearance until after the license had expired.

Does that tweak change the textual analysis?  Not really, because the purpose of the analogy is to show that defendants who cannot be punished in one legal way can still be punished in other legal ways.  But the tighter analogy does shine a light on why this is appropriately an impeachment proceeding in the first place, because the bad acts occurred at a time when both consequences of impeaching and convicting Trump -- removal and disqualification -- were possible (and entirely justified).  Trump was a sitting president when he incited an insurrection.  He might try to do it again in the (near) future, and if he does, he will be a private citizen who can (even under the crabbed reasoning of that old Office of Legal Counsel memo about criminally charging presidents) be prosecuted, convicted, and imprisoned for his crimes.

We can query whether Trump could be impeached (beyond being criminally prosecuted) for something that he did after he has left office.  Nothing in the Constitution says explicitly that this is prohibited, and again, if Bill Clinton has committed what would be impeachable offenses since 2001, we can argue about how to deal with that.  I am confident that the political process would police itself (even in wholly polarized times), because there is simply no reason to think that it is important to disqualify Clinton from holding office in the future.
At the very least, however, we can say that the Constitution's text does not definitively answer that question.  What the text does say, in language that could not be clearer, is that sitting presidents who are impeached and convicted shall be removed from office, and that anyone who is impeached and convicted can be barred from future service.  It is right there in plain English.


Hashim said...

While I take no position on the ultimate question because I haven't studied the history concerning impeachment of former officials, your analysis of "the English language" is facially flawed.

While you are correct that A1, S3 and A2, S4 do not "plainly" *prohibit* impeachment of former officials, you are wrong that those provisions "plainly" *permit* impeachment of former officials. A1, S3 is *silent* on *who* can be impeached, so the only way it "plainly" permits impeachment of former officials is if the silence means authorization to impeach *anyone* (as opposed to the types of persons who were historically understood as subject to impeachment at the time the constitution was enacted). But that seems "plainly" wrong.

To begin, it is pretty dubious that the textual silence is properly construed, in light of historical context, to mean that Congress could impeach someone who had *never* held public office, based on private misconduct, in order to prevent them from being elected or appointed in the first place. And this is underscored by the fact that A1, S3 is *also silent* on the *standard* for impeachment. The phrase "high crimes and misdemeanors" is present *only* in A2, S4 -- which you assert imposes only a duty, not a limit, on congress. So on your view, A1, S3 "plainly" permits congress to impeach anyone (even non-officials) for conduct that doesn't even meet the "high crimes and misdemeanors" standard. That's even more dubious.

In short, on your view, a Republican House and Senate could "plainly" have impeached Barack Obama when he first ran for president on the ground that he'd previously admitted to cocaine use, even though the voters were unfazed by that. After all, according to you, nothing in either A1, S3 or A2, S4 imposes any limits on *who* can be impeached or for *what*. Suffice it to say that this seems "plainly" wrong, both as a matter of the "english language" and any sensible view of constitutional interpretation. Absent pretty compelling historical evidence to the contrary, it seems almost certain that the "high crimes and misdemeanors" standard in A2, S4 is not just a ceiling at which removal is required, but a floor below which removal is not permitted--and indeed, I'm pretty sure the history confirms this, since the point of the phrase was to prohibit impeachment for mere "maladministration." And likewise, unless history demonstrates otherwise, it seems quite likely that only the officials listed in A2, S4 are subject to impeachment -- though that alone doesn't answer the question whether *former* officials of that type are subject to impeachment, especially for past *official* acts.

In short, the open-ended authorization in A1, S3 is properly construed in light of the substantive mandates in A2, S4 and the historical understanding of impeachment that the constitution was adopted in the shadow of. I don't know what the right answer is for former officials under that analysis, but i know that the wrong approach is the simplistic parsing of text that you've proposed.

Unknown said...
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Craig J. Albert said...

I agree with the textual analysis, and I'll simply add context. There have been some references to the Hastings impeachment in the press and in the historical literature. Warren Hastings wasn't merely an interesting anecdote in 1787; he was the news. It was the first English impeachment in 50 years. If we were to characterize what he was accused of, a good modern equivalent (because the terms didn't exist back then) were genocide and war crimes. His impeachment commenced in May 1787, contemporaneous with the Constitutional Convention. It dragged on for 8 years. (It was so contentious and so drawn out that several years in Commons demanded that the managers - led by Edmund Burke - report on why the thing was taking so long.)

But here's the thing: Hastings had resigned two years before the impeachment, and the position he resigned wasn't even a government position. He was a director of the East India Company, carrying on Crown business pursuant to a Crown charter. The fact that he was a former officer made no difference, and his was the paradigm that formed the basis for the discussions about impeachment in the Convention (mostly Mason and Madison). So one would think that if this were a problem, it would be mentioned and planned for. It wasn't.

The far better approach to the language here is to look at it subtractively, particularly because the bulk of the Constitution is written as affirmative grants of power with express limitations. In that context, one asks "What was an impeachment under English law?", and then ask "How does the Constitution limit that?" The answer is then pretty simple: the Constitution cuts back the possible range of punishments, and does it in a way that's consistent with the "corruption of blood", "ex post facto", and "bill of attainder" clauses. Same thing with impeachment: applies to anyone, but the penalties are limited to just two.

egarber said...

I mean, to play this out:

Suppose a president has 30 days left in his term. And knowing there’s no time for the full impeachment process before he leaves, he burns down the place - giving foreign adversaries access to national security insider information, whatever conservatives think is impeachable. And because it’s presidential authority, there’s no statute making his behavior illegal*

Under the theory at play here, impeachment and conviction are off the table if time runs out (maybe this stuff isn't even discovered until inauguration day for the next president), because he won’t be president anymore by the time the trial hits.

Should we read the Constitution - which is silent on the exact question - to require that vulnerability? "Sorry guys, this dude can run for president again in 4 years, merely because he knew how to game the rules."

*even if Congress passes a law in the aftermath, it’s ex post facto and can’t apply in this situation. So he’s free as a citizen too.

James Freiberger said...

The DUI analogy is excellent. I'll be sharing that with friends (and encouraging them to read this site, as usual).

egarber said...

So mixing up the pieces, could the Senate disqualify from future office WITHOUT removal? That would be bizarre for sure - just testing how decoupled these provisions are. 

egarber said...

Here’s another analogy.

Suppose we had this in a company’s bylaws:

“The company can terminate an employee and mark her as disqualified from future hiring.”

Based on the GOP interpretation, if the employee is going to be fired but quits before being let go, the company cannot disqualify her from future jobs via this policy. How does that make any sense?

egarber said...

This whole thing leads me to another axiom:

Conservatives are textualists, until they’re not. :)

kotodama said...



The same analogy had occurred to me too, but you beat me to the punch!

While Prof B.'s DUI hypo is very good, in my view, the employment one ("you can't fire me, I quit!") better captures the temporal aspects of what's going on with T's impeachment situation.

I can also think of another similar reason why impeachment of former officials is quite sensible. Slightly tweaking your analogy, what if the employee conceals the relevant misconduct and then conceals long before it's discovered? At that point, firing the (now ex-)employee is obviously moot, but it's bizarre to say that s/he can't be stopped from applying for a new job at the company.


I think Prof. B. made it clear in at least a few places that removal is mandatory upon conviction, but disqualification is an extra option. That doesn't seem to pose any problems in the case of a former official either. If the official is already gone, then removal just becomes moot—again, you can't fire the misbehaving employee who quit preemptively. But as Prof. B. explained, disqualification can still be available in that case.

kotodama said...

Sorry for the seriatim comments—the second "conceals" in the third paragraph should have been "departs".

egarber said...

good stuff hardreaders. If I could make any request of blogger, it would be to allow comment edits. So many platforms have that feature these days. Big headache saver for me, since I tend to screw up first posts. God forbid I proof my words, right? :)

kotodama said...

Agreed! I generally like this platform, but the lack of editing capability is a big drawback. Until that feature's added, I guess we just have to be very rigorous in our drafting (or maybe stop caring about little errors? :]).

Phil said...

"a Republican House and Senate could "plainly" have impeached Barack Obama when he first ran for president on the ground that he'd previously admitted to cocaine use."

Duh, of course Obama should have been removed from office before he was in office. Congrats.

Greg said...

I tend to agree with Hashim that this isn't plain. Further, I think there's a reasonable enumerated powers argument that as a whole, Article II Section 3 does limit the scope of the impeachment power in Article I Section 2.

THAT SAID, I also agree with Prof. Buchanan that if the impeachment itself occurred while the accused qualified under Article II, that Article I does not limit when the trial can occur.

I am among those who consider it foolish for the Chief Justice to decline to preside over the trial, although the best reading of the obligation to preside in Article I Section 3 probably does apply to the office of the accused at the time of the trial, even if eligibility for the impeachment power in Article I Section 2 and Article II Section 3 applies at the time of impeachment.