Tuesday, February 16, 2021

Technicalities and Constitutional Incompleteness: Banning Insurrectionists from Holding Office

by Neil H. Buchanan

What is a technicality?  In the echo chambers of political punditry, certain words and phrases gain favor, allowing writers not to think deeply about issues even as they sound familiar notes to project seriousness.  Lately, among those who are disappointed that the Senate did not reach the two-thirds threshold to formally convict Donald Trump in the impeachment trial, the unfortunate move is to describe Republicans' dodging of the issue as hiding behind a technicality.
 
Aaron Blake, a Washington Post reporter, wrote that "Trump was acquitted at his second impeachment trial largely — if not completely — on a technicality: the argument that the trial itself was unconstitutional."  Similarly, Michelle Goldberg, the progressive New York Times columnist, yesterday disparaged Minority Leader Mitch McConnell for relying on the "manufactured technicality ... that a former president is 'constitutionally not eligible for conviction.'"
 
Blake's larger point is about Republicans' hypocrisy, and Goldberg does say that this was a manufactured technicality, but there is still a problem: The Republican senators who said that a no-longer-sitting president cannot be impeached, tried, or convicted were simply wrong.  Hypocrites or no, their argument that the Constitution required them to vote to acquit on jurisdictional grounds is baseless nonsense.  They did not manufacture a technicality.  They failed to manufacture a technicality, and they then went rogue.

This matters, both for the immediate discussion of Trump's second impeachment and for the question of whether Democrats can use a Fourteenth Amendment provision to the same effect that a Senate conviction would have had: disqualifying Trump from running for president in the future.  That gambit might or might not work, but understanding what is happening requires us to know what is a technicality and what is simply bull crap.

Republicans, who have long reveled in calling themselves the party of law and order, have time and again told the world that they hate technicalities.  Technicalities are what lawyers -- eccchhh ... lawyers -- rely on to subvert justice.  Everyone knows, they say, what is true and right, but sniveling liberals want to hide behind technicalities.

This comes up all the time in the area of criminal justice.  When a piece of evidence is excluded at trial because, say, there was a break in the chain of custody, conservatives scream "technicality!"  If a suspect is denied counsel, food, and bathroom breaks and ends up confessing, trying to get that confession suppressed is derided as relying on a technicality.  Miranda is a technicality.  Foreign diplomats who commit crimes cannot be arrested because technically they are not subject to U.S. criminal laws.  Rules in general, which are technicalities incarnate, can always be attacked if they do not seem to line up with someone's standards.

The Trump era was (and still is, even after he left office) a veritable master class in technicalities.  Did he violate the Emoluments Clause, and if so, who has standing to sue him?  Can a sitting president be investigated, charged, tried, and convicted of crimes, or is even a guilty president not prosecutable on the convenient technicality that a Nixon-era memo says so?  Does Kellyanne Conway get away with blatant violations of the Hatch Act simply because that law allows her boss to choose not to punish her?

For all of these examples of technicalities, however, there is an actual legal basis for saying that the unwelcome outcome is required or permitted.  The Exclusionary Rule has been severely pared back, but there are still times when evidence must not be allowed at trial, because the law so requires.  Even cases in which there are close calls (such as various aspects of the emoluments litigation) or bad law (such as the OLC memo regarding presidential immunity) are nonetheless technically valid applications of the law in all its technical glory, even as they seem to frustrate justice.

As it happens, Trump's acquittal this past Saturday was indeed based on a technicality, which is that the Constitution seems to require a two-thirds vote to convict.  I say "seems to require" because the two-thirds requirement in Article I Section 3 only applies by its own terms to impeachments of the sitting president; but I will get back to that sticking point in a moment.  A clear majority of the Senate voted to convict, but he is claiming exoneration because the vote was not more lopsided.  As a technical matter, as people currently accept the meaning of the law, he was indeed acquitted.

As another example, try to explain the Electoral College to someone from any other country -- or, if we are to be honest, to the vast majority of Americans -- without at least implicitly calling it a technicality.  "Trump lost the popular vote in 2016, but technically, he won and is now the president of what we like to call the greatest democracy on Earth."  His entire 2020 strategy, both before and after election day, was based on exploiting the technical legal avenues that he thought were available to him.
 
Some of those strategies, such as his hope to have the vote thrown to the House via the Twelfth Amendment, were baseless.  But if he had actually gotten the Arizona and Georgia Republicans to go along, and if Wisconsin had done a slightly better job of suppressing votes in Milwaukee, he would have "won" again.  Using scare quotes there is not to say that he would not be president legally.  It would be a way of saying, as people say when "obviously" guilty defendants are set free, that what is legal is not always fair or just.

So when people start saying that many Senate Republicans let Trump off on a technicality this past Saturday, that sends a dangerous message.  We sometimes regret the effect of technicalities, but we respect them.  I am a fierce supporter of the tenure system, for example, even as I know that that system prevents some truly problematic colleagues from being fired.  Some bad outcomes are inevitable when competing values clash within any legal process.  We follow the technical rules because doing so is required, even when we hate the outcome.

We thus need to be very clear in saying that the claim that the Constitution prevents an ex-president from being impeached, tried, and convicted deserves no such deference.  It is not a technicality.  It is a lie.  It is a lie because it is not required by the text of the Constitution (and actually contradicts it), because it flies in the face of the Founders' intent, because it ignores history and precedent, and because it results in constitutional absurdity.  Prominent conservative legal analysts are included in the nearly universal consensus on this question.
 
And even if none of that were true, it is a lie because the Senate itself voted under its own rules that it had jurisdiction in the case.

This is no technicality.  McConnell and other Senate Republicans are simply saying that they are willing to violate the law in order to acquit Trump.  Call injustice what it is.

As I noted above, however, there might be another way to take a bite at the Trump-disqualification apple.  Section 3 of the Fourteenth Amendment provides (in its entirety):
"No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability."
As I described in a Dorf on Law column last week, I have become fascinated with "the surprising emptiness of legal texts, most definitely including the United States Constitution."  Section 3's exclusion of insurrectionists might be the perfect example.
 
As I noted above, the Constitution's text does not plainly require a two-thirds vote to convict a former president.  Relatedly, I have pointed out that, "by the text alone, it would be possible (but not required) for Congress to proceed against a former president based on his having committed something other than high crimes and misdemeanors while in office.  In addition, Congress could even impeach and convict someone who has never been president for offenses that would not even be high crimes and misdemeanors if that person were in office."
 
I am not at all a textualist, as that word has come to be understood by legal scholars.  I am only saying that even imprecise words can be precise enough to rule out some possibilities while allowing others.  Some of those not-excluded possibilities are almost surely bad ideas, such as impeaching Bill Clinton for something that he did in, say, 2007 -- or impeaching me for what I did in 1985.  And when the text is actually silent or unclear on the relevant point, then of course we should apply all of our interpretive skills to put flesh on the bones of the Constitution.

Pursuing Trump under Section 3 would, to be clear, not be a matter of exploiting a technicality.  It is not saying that some greater substantive justice has to be set aside in the service of an important legal principle that we must obey for the greater good of the rule of law.  It would simply be a choice to apply the law as written.
 
What Section 3 does present, however, is a nasty set of questions about how the goal of barring insurrectionists and rebels (and their aiders and comforters) from office is to be achieved.

Section 3 does not, as an initial matter, explicitly say that it applies to the President (or Vice President).  It does say "any office, civil  or military," which should cover the President, but it is at least odd to think that the people who wrote Section 3 would explicitly list senators, representative, and electors who vote for President and Vice President, but then sweep the top two offices in the land under a vague miscellaneous category.  Again, we need not stop at the text, but we should acknowledge when and why we add to its minimal meaning.

But it gets worse.  Section 3 ends with an explicit two-thirds voting rule to undo disqualification of insurrectionists and rebels, but it does not give us a voting rule for the disqualification itself.  Indeed, it does not even tell us which body determines who has engaged in insurrection or rebellion.  It is a conclusion -- an important conclusion, to be sure -- in search of a process.  Speculation about the process, such as in this piece by The Post's Jennifer Rubin yesterday, covers all kinds of possibilities.

Rubin reports, for example, that "Congress could go even further and, as one lawyer exploring this avenue told me, 'expressly authorize the Attorney General to bring an action to enforce Section Three against President Trump before the D.C. Circuit Court of Appeals (or a three-judge federal district court panel) and allow for immediate and expedited appeal to the U.S. Supreme Court.'"  She also asserts that such a concurrent resolution would not be subject to filibuster.

Is all of that true?  I doubt that Rubin knows, or would even claim to know with any certainty.  For what little it is worth, I look at Section 3 and "see" a judicial process, not a legislative one.  Among other things, the un-disqualification clause at the end seems like a congressional pardon, which would follow a judicial outcome.
 
If so, however, we do not know from the text where the judicial process should even take place, nor do we know whether insurrection, rebellion, or giving aid and comfort are to be given their strict legal meanings -- and if so, does "aid and comfort" mean the same thing as "aid and abet"?  We know that the Founders did not use "high crimes and misdemeanors" in the legal sense.  Should we conclude that the Reconstruction Amendments were written by men who similarly used crime-laden language in not-strictly-criminal ways?

The constitutional text here is so vague as to be self-defeating, especially because we are talking about using it in the most highly charged political environment imaginable.  Suppose that Democrats convince themselves that they can pass a resolution without a super-majority vote, and they then try to say that Trump is thus disqualified from holding office ever again.  What would happen?

Trump, as is his habit, would be tempted to litigate.  But his smarter move would simply be to say that the Democrats are afraid to run against him, announce his candidacy, and file papers in the Republican primaries and caucuses for every state.  Would any court say that the Republicans cannot allow their voters to choose someone who might not be eligible to run?  Who has standing, and why would a court rule when the case is not ripe?
 
Once Trump is on the ballot in my hypothetical version of 2024, would it even matter if the Democrats could convince the Supreme Court that their Section 3 action was legitimate (assuming that they could convince the Court to hear the case at all)?  At that point, with a sufficiently roused Republican base -- including people who might have hoped that Trump would fade but who became outraged by liberals' refusal to "give the man a break" -- the Republicans' replacement candidate would surely announce that he was a Trump avatar.  Trump would then wield power without even the possibility of being removed from office.

If Trump is going to continue to have influence in the Republican Party, the country is almost certainly going to descend into autocracy, even if Trump is somehow excluded from running.  Keeping him out of office on what (in this hypo) would be a genuine technicality -- "You can't hold office because the Fourteenth Amendment says so, even if you were to run and win," just as a 33-year-old or a Canadian-born candidate could not become president -- would be the right outcome for the rule of law in the narrow sense.  It would happen, however, as the rule of law in the more meaningful sense would be ending by other means.  The Fourteenth Amendment would not stop that from happening.

Even more depressingly, this is all in the context of Republicans' efforts to suppress votes and rig the elections in 2022 and 2024 so that they will become a permanent minority ruling party.  That future might be less bad in certain ways with a Politburo run by Tom Cotton rather than Donald Trump, but what matters is stopping the system from collapsing in the first place.  In the end, pursuing action under Section 3 of the Fourteenth Amendment seems likely to make matters worse in that regard.

2 comments:

egarber said...

Thanks very much for this post.

I'm most curious about what a 14th, sec 3 bill would look like. Throwing out a starting point for discussion.

1. My first assumption is that sec 5 has to be invoked, since it's hard to see how sec 3 is self enforcing / executing.

2. So from there, can Congress specifically name Trump and thus avoid wading into a bill of attainder, as long as the decision forum is an Article III Court? To Neil's point, it's really hard to see how this wouldn't involve the courts for enforcement; unlike the impeachment or expulsion clauses, sec 3 doesn’t directly designate Congress as the deciding actor.

3. If (1) and (2) are in place, how is it actually litigated? Does a prosecutor have to decide wether to pursue a case? Or can Congress directly launch the case for the courts? Or I guess Congress could direct the AG specifically, per that opinion piece in Neil's post (that seems weird to me, but who knows)?

4. If Trump challenges the law as improper use of the Congressional power, would it be on “congruence and proportionality” grounds – i.e., does Boerne apply?

5. Ok, getting a headache with all this - time for some aspirin. :)

Unknown said...

I can describe the Electoral College without implication of technicalities. “ each state hold an election to choose individuals who will then choose the president. Wow some individuals may have mistaken these elections for one single national election, they are in reality 51 separate and simultaneously held elections, just as we hold 435 separate and simultaneously held elections for the House of Representatives and 33 to 35 separate and simultaneously held elections for the Senate every two years.”