Thursday, February 11, 2021

Trump's Lawyers' Theory Could Give a President More than One Way to Game Impeachment

by Neil H. Buchanan

The ongoing Senate trial of Donald Trump has been riveting, to say the least.  If ever there were any doubts about the value of following the constitutional process, even when the outcome is a foregone conclusion, those doubts have been definitively extinguished.  The public now has a much better, more complete understanding of what led up to the January 6 insurrection, as well as the horrors of that day itself -- which, we now are seeing, could have been much, much worse.

On Tuesday of this week, I published a column on Verdict under the somewhat misleading title, "Would Senate Republicans Abandon Their Baseless Arguments if There Were a Secret Ballot?"  I describe that title as misleading because the vast majority of my analysis was not devoted to the secret ballot question in any direct sense.  Instead, I used comments by retiring Ohio Senator Rob Portman to expand on my recent critiques of Republicans' text-based claim that the Senate trial is unconstitutional.
I then used Portman as an illustrative counter-example to the supposition -- one widely believed by well informed people -- that Republicans would overwhelmingly vote to convict Trump if only they could do so without anyone finding out how they voted.  Portman, who will be 67 when he leaves office and will never face Trump's voters again, is as close as possible to being in a consequence-free zone to cast a public vote of conscience, yet he is as committed to the crazy as ever.

Although I initially expected that I would endorse the secret ballot idea in that column, I chose not to do so for two reasons: (1) My Verdict colleague Dean Vikram Amar and his colleague Professor Joshua Mazzone wrote a persuasive column on this very topic during Trump's first impeachment, and much more importantly, (2) I am less convinced than ever that the Senate's vote in this trial matters, as I will explain in greater detail in my next Dorf on Law column tomorrow.  Therefore, when I finally reached the point in my column at which I explicitly addressed the question of a secret ballot, I shrugged and said something that is rather out of character for me, which is that I do not have a strong opinion either way.

Here, I want to pick up on an idea that I briefly discussed on Tuesday and which Democrats have emphasized in their case against Trump.  Specifically, they warn that a president should not be allowed to escape all constitutional accountability by committing impeachable offenses shortly before leaving office.  This encompasses Lead Impeachment Manager Jamie Raskin's "January Exception" idea as well as the notion of a strategic resignation.
My question here is: Could a president -- under the Republicans' crackpot theory that Raskin rightly mocks -- craft a strategy that would allow him to stay in office even if two-thirds of the Senate were to convict him of high crimes and misdemeanors?  The surprising answer is: Maybe!

Over the years, two broad themes or patterns have emerged in much of my writing, both in formal legal scholarship and in "public intellectual" writing such as this column.  One is a fascination with the logical flip-sides of arguments, and the other is the surprising emptiness of legal texts, most definitely including the United States Constitution.

In the former category, my work in 2011-15 with Professor Dorf on the debt ceiling was motivated in large part by the observation that purveyors of the conventional wisdom were ignoring the logical flip-side of their own conclusion.  They argued that, when we reach the debt ceiling, a president must refuse to borrow and spend funds that Congress has appropriated, else he would be guilty of violating the law.  We retorted (at great length) that failing to spend the money that Congress has ordered the president to spend would also violate the law, which is a problem (to say the least).
Without getting sidetracked by additional examples here, I confess to having a special fondness for analyses that turn arguments back on themselves.  And as to textual vagueness, I have also been having fun pointing out how vague the purportedly "absolute and unreviewable" pardon power is, along with other examples of how constitutional text is frustratingly inadequate (including my columns about whether the Vice President could control the Senate in more than the traditional ceremonial and tie-breaking roles).
Those two tendencies came together as I was writing Tuesday's Verdict column.  Raskin's "January exception" theme is, as I noted above, a subset of the argument that a president should not be able to get away with impeachable offenses merely by saying, "Hey, I'm no longer in office, so you can't touch me."  Beyond doing terrible things during the last few weeks or months of his term, a president could use the Trumpists' theory of the Constitution to resign before the Senate has a chance to vote to disqualify him from holding office in the future, even long before his term would otherwise end.

That is a sound argument, and it highlights a genuine worry about what it would mean to accept Trump's lawyers' claim.  In my first draft of Tuesday's column, however, I tried to flip the Trumpist claim in the other direction: "For that matter, under this ridiculous reading of the Constitution, a president could escape removal by agreeing in advance to be disqualified from holding future office. 'Now you can’t do both, so you can’t remove me, even though I’m guilty!'"
I chose to delete that argument from the published column, however, because it was superfluous to the immediate point and because I wanted to work out some of the steps of the argument in more detail.  If I were going to state the argument publicly, it at least deserved more than two snark-laden sentences.  Do I believe that argument, now that I have had some time to work it through?

Recall the relevant text from Article I, Section 3: "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."  Trump's lawyers and his Republican enablers in the Senate now claim that because a former president obviously cannot be removed from the office that he no longer holds, he also cannot be disqualified from holding office in the future.  Because those two "judgments" -- removal and disqualification -- are connected by the word "and," Trump's people say that it is not permissible to do one without doing both.  (If they want to argue that their theory is somehow asymmetric, they can try to do so.  I can only say that the text-based argument, based on the connecting "and," has to be symmetric.  The text clearly does not say "and then," for example.)

Before flipping the argument, I should note that the text here does not in fact support what everyone currently takes to be the proper procedure.  There seems to be broad acceptance that, in a case where a sitting president has been impeached, the Senate holds a trial and then decides two things: a two-thirds vote on whether to remove, followed by a simple majority vote on whether to disqualify.  The clause preceding the quoted text, however, says that "no person shall be convicted without the concurrence of two thirds of the members present."  Because "judgment" is a result of "conviction," conviction is a necessary precondition to being disqualified, which means that the disqualification vote must also be by two-thirds majority.  Again, the constitutional text is at best murky, and the current understanding actually seems difficult to justify on textual grounds.

In any case, the question in my deleted sentences is whether one could turn around the logic that says that one cannot be disqualified if one cannot also be removed.  That is, could a sitting president argue that he cannot be removed if he is already disqualified?  If the two go together, then they go together, right?  If he could arrange it, could such a president inoculate himself against removal by following the Trumpists' theory and saying that it is an all-or-nothing totality?

But how would such a sitting president purport to do that?  He could announce that he will never try to hold public office again, but who would take an impeachable president at his word?  Would he be able to make it stick by signing an executive order, declaring himself to be disqualified from ever again holding and enjoying any office of honor, trust or profit under the United States?  One might point out that the president could later unilaterally cancel that order, but that is true of all executive orders -- and, for that matter, all regulations, statutes, judicial precedents, and constitutional provisions can later be changed.

A president could thus say that, under the law as it currently exists, he has already been disqualified.  Under the Trumpists' theory, he could then serve out the remainder of his term, even if the Senate unanimously voted to convict him in an impeachment trial.  I obviously am not endorsing that reading of the relevant text.  Instead, I am saying that one absurd implication of Trumpists' reasoning necessarily implies the other.
To play out the logic a step further, the Senate could try to include a fallback clause in its trial verdict: "If the president ever again becomes un-disqualified, he shall immediately be removed and disqualified."  That would not stop the rogue president from finishing his term, of course, but it would prevent him from re-qualifying himself before leaving office.  If a future president or congress decided to reverse that disqualification, however, would the Trumpists' logic mean that he could indeed be re-qualified, because the Senate's fallback provision would at that point fail the all-or-nothing test when applied to an ex-president?

Does any of this make sense?  Of course not, which is precisely the point.  The exercise here is designed to expose the illogic of the Trump-can't-be-tried-because-he's-already-gone reading of the Constitution.  As I have been arguing in all of these columns, "shall not extend further than" is limiting only in the sense that it rules out other consequences, but it does not require that both possible consequences be imposed (or even available).

As I have stipulated all along, I am in no way arguing that any legal analysis should be limited to reading the text and nothing more.  We must also use all of the other available interpretive tools, and it is clear under all of them -- including the naked text itself -- that the Constitution allows the Senate to try a former president.  My additional point today is simply that mangling the meaning of Article I Section 3 is not necessarily a one-way gambit: "He cannot be disqualified, because he has already been removed" (including by his own resignation) is nonsense, and so is "He cannot be removed, because he has already been disqualified."

In short, the conventional wisdom is correct: disqualification has to be available as a separate consequence of conviction, because we cannot allow a president to avoid disqualification by resigning.  And another way to understand why that is correct is to point out both sides of the absurdity.  Senate Republicans -- all but six of them -- will continue to hide behind this baseless procedural objection; and they will continue to be wrong.


Hashim said...

The view that both removal and disqualification must be available doesn't at all imply that constitutional disqualification, and thus removal, can be rendered unavailable by subconstitutional disqualification. Despite any sub-constitutional disqualification, constitutional disqualification remains available precisely because sub-constitutional disqualifications can later be removed. Just as no one could doubt the ability to adopt a constitutional prohibition that duplicated an existing statutory prohibition, no one could doubt the ability to impose an otherwise-authorized constitutional disqualification despite an existing sub-constitutional disqualification. (Removal is different because it is backward-looking rather than forward-looking - once a term has ended by resignation or duration, it is no longer possible to remove the officer. But it remains possible to impose a forward-looking constitutional disqualification on top of a sub-constitutional one.)

Conversely, the "January problem" seems overstated. A second-term president faces no meaningful impeachment risk in January, because a third term is constitutionally barred and it is highly unlikely that a two-term president will ever serve again in some other federal office. Yet no other impeachment sanction is available. And if that's tolerable for a second term president, it's hard to see why it is much more problematic for a first term president, given the relative implausibility of being reelected four-plus years after having committed an impeachable offense. Simply put, even if impeachment is available, it isnt a meaningful constraint on a lame-duck president.

CEP said...

There's an interesting corollary to rejecting the "January Exception": It also, implicitly, rejects the "Garland Nomination Exception." It's extraordinarily difficult to rationalize "The Senate majority may choose to abrogate its sole constitutional duty regarding Presidental nominations — providing its 'Advice and Consent,' whatever that means — during the last full year of a term-limited President's term in office" as consistent with "There is no 'January exception' for otherwise-impeachable conduct."

OK, it's also hard to rationalize the "Garland Nomination Exception" with the concepts of democracy, of governance, and of the oath taken by every Senator to support and defend the Constitution of the United States (which, by its own terms, doesn't cut off a President's ability to nominate anyone to any office of the United States — principal or inferior — at any time other than noon on 20 January of every fourth year). Maybe what this means, though is that the "Garland Nomination Exception" necessarily implies belief in the "January Exception"... which is enough reason for me to demand those individuals professing such belief be thrown out of office for violation of their oaths, regardless of their seniority, their ideology, their tribe, or their popularity.

Unknown said...

What about this scenario? The president is corrupt. The opposition party controls the house and senate. The president wins re-election and his party takes the house. His is impeached in January after the election. He resigns in response to the impeachment and therefore cannot be removed or disqualified (under at least one Republican theory). He then takes office again on inauguration day. Free & clear!

Greg said...

Hashim, I think you're right to an extent on both points, but you can argue that the "January Problem" is not a problem only if you believe that symbols are meaningless.

Beyond removing the perpetrator of impeachable offenses from office (and potentially barring them from future service) impeaching a President also sends a clear message that "this conduct is unacceptable, to the point of successful impeachment and conviction." It serves as a warning to future Presidents that the conduct producing the impeachment will be impeached if it occurs in the future.

Consider a would-be dictator looking at the results of this impeachment trial. I think the message is quite clear: You can send an angry mob at Congress, and the majority of your party will continue to stand behind you, no matter what you do. I can't imagine that Nixon would resign today, after seeing how Trump has been defended. A future President can look at this and far more actively and successfully plan an attack on Congress (or the Supreme Court) and count on their party in Congress to defend them, no matter how heinous the crime. All they need is some nonsense procedural argument for why this particular action doesn't qualify for impeachment.

Thus, the impact of not convicting a lame-duck President is real, but comes primarily in the form of constraining future Presidents.

Greg said...

To put it another way, after Trump fails to be impeached, what would stop President Biden, after a stream of failures at the Supreme Court, from holding a rally near the Court and saying "We need to defend our country from these would-be oligarchs in robes. It's time to take up arms to defend the constitution!"

Trump's behavior is unacceptable, and CANNOT be allowed to become the norm. That's why impeachment and conviction is important.

Hashim said...

Greg, I dont see how the acquittal based on lame-duck timing would send a signal to future presidents that the same conduct would lead to acquittal outside the lame duck. That signal would be sent only if the timing rationale was perceived by future presidents as pretextual - and if so, then the problem won't be limited to january.

egarber said...

Please help me clear up something.

A little while back, sec 3 of the 14th was swirling around.

1. An office holder can be disqualified from office if he / she takes part in an insurrection or rebellion.

2. It appears to only require a majority vote.

Do we think that once Republicans acquit, Democrats might pivot to a vote on 14th, sec 3 grounds?

Greg said...

Hashim, given the history of past impeachments for other positions having been tried after the accused left office, why would this be seen as anything but pretextual?

And yes, my point is that the problem won't be limited to January.

Hashim said...

Greg, I havent studied the history, so can't comment on that, other than to say that mere disagreement with past practice is pretty weak evidence of pretext, given the alternative explanation of a willingness to reconsider questions afresh. It is not like any of the current senators themselves previously agreed that former officials are impeachable, si they may just think their predecessors were wrong. Given the ambiguous text and structure of the constitution on this issue, the historical tradition would have to be pretty compelling to conclude that the position of the 44 is not just wrong, but pretextual.

But this is a tangent from the original point. Imagine if the constitution were unambiguous that former officials were not impeachable. As discussed, that wouldn't create much more of a January problem than already exists, given that lame duck presidents aren't likely to be chilled by impeachment anyway. And it wouldn't send a bad signal to future presidents, as they wouldn't be lame ducks. Accordingly, my initial point remains - neither the January problem nor the future signal problem seems like a good reason to construe the constitution to permit impeachment of former officials, though historical tradition may be such a reason.