Tuesday, February 02, 2021

What the Constitution's Text Does Not Say Plainly About Impeachment

by Neil H. Buchanan
Last Thursday, I wrote paired columns on Verdict and here on Dorf on Law in which I responded to Senate Republicans' claim that the Constitution does not allow a former president to be impeached or convicted.  I explicitly stated in those columns that my purpose was to show that the constitutional text alone made clear that their argument is wrong.

I did not, of course, endorse textualism as that term is currently understood and used by conservative legal scholars.  And I went to great pains to say that there are excellent non-textual arguments -- based on precedent, original intent, pre-Constitutional history, policy implications, and so on -- that take us to the same conclusion, which is that the Senate can and must uphold our constitutional order by trying and convicting Donald Trump.  One particularly good contribution to that list of other arguments, from Professor Bob Bauer of NYU Law, can be found in today's New York Times.
In short, my sole purpose in writing those columns last week was to point out that even if we were to look at no interpretive method other than the plain meaning of the words in the Constitution, we would have no choice but to conclude that the Republicans are wrong.

Today, I want to think about some of the related issues on which the constitutional text is at best murky and in some cases nonexistent.  What happens when there is no clear, on-point language to which we can appeal?  The possible implications for various situations are surprising.

As I noted last week, there are exactly two relevant clauses from the Constitution regarding impeachment:

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"

Article II, Section 4: "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."
Trump's enablers in the Senate have decided that the second of those clauses is textually dispositive, that is, that because an ex-president by definition cannot be removed from office, he cannot be impeached at all.  As I pointed out, however, Art. II Sec. 4 says nothing of the kind.  It does says something important -- that when a president (or other relevant person) is impeached and convicted, he shall be removed from office -- which actually carries echoes of another Trump scandal, when his lawyers argued that the word "shall" does not mean shall in the statute requiring a president to hand over his tax returns when Congress demands them.   Nothing in the text of the Constitution (and certainly not Art. II Sec. 4), however, says that only sitting presidents et al. can be impeached and convicted.

Similarly, Art. I Sec. 3 puts outer bounds on what can happen to someone who has been impeached and convicted, and in doing so it makes clear that the consequences of conviction are not limited to removal from office.  As I described the situation by analogy, a person who is prosecuted for drunk driving cannot escape the penalty of being barred from getting a driver's license in the future simply by saying, "I no longer have a valid driver's license, so no other consequence of my illegal actions is allowed."

OK, enough of the summary from last week's arguments.  I encourage anyone who wants to get further into the details to read those columns in full.  I offer this recapitulation here to emphasize that my argument was not actually textualist but was instead a text-based rebuttal to an incompetent textualist argument.  The relevant text is indeed minimal, but it at least tells us that the Senate Republicans' argument -- that the Constitution prohibits them from trying and convicting Trump -- is simply wrong as a matter of the meaning of the English language.

In that regard, then, the analysis up to this point is akin to the category of constitutional provisions that are clear simply as a matter of the meanings of words and the construction of sentences.  Famously, for example, the Constitution says that a person "who shall not have attained to the age of thirty five years" cannot be President.  At the other end of the clarity spectrum is the Eighth Amendment's prohibition of "cruel and unusual punishment."  But the clearer end of the spectrum is actually not well populated.

For example, Article III, Section 1 stipulates that judges "receive for their services, a compensation, which shall not be diminished during their continuance in office."  As an economist, I have always been mystified that the word "compensation" in that clause is not deemed to mean "inflation-adjusted compensation," especially given that the people who wrote the Constitution had very recently lived through a hyperinflation occasioned by the Revolutionary War.  To me, then, the text clearly requires that judges' nominal salaries and benefits be indexed to inflation; but the prevailing wisdom is that the Founders' words would allow judges real compensation to be reduced to almost nothing over the space of several years of even high-moderate inflation.

On the other hand, there are provisions that actually use clear words but that Republicans simply choose to ignore.  In 2020, when Trump's lawyers looked at the Fourteenth Amendment's requirement that Representatives be apportioned by "counting the whole number of persons in each state," they said that "persons" does not mean persons but actually excludes the group of persons known as undocumented immigrants.  The Constitution was written and amended by people who clearly understood how and when to use the word "citizen" as opposed to "person" as opposed to "the people," yet Trumpists decided that "persons" is not clear.
But that is simply bad faith.  More interestingly, what do we do when the language of the Constitution stops short of telling us enough to clearly guide action?  In a way, I cannot believe that I needed to ask that question, because that is the entire enterprise of constitutional analysis: When confronted with a necessarily incomplete and sometimes maddeningly vague document, what do we do?

When it comes to impeachment, the paucity of text does leave open quite a few important questions.  In my Dorf on Law column last Thursday, for example, I noted the noxious argument from Ted Cruz (who makes nothing but noxious arguments) that trying Trump in the Senate opens up the possibility that Republicans in the future could impeach and try former Presidents Carter, Clinton, and Obama.  I stipulated that the text actually is unclear about that question -- that is, that it neither explicitly authorizes those kinds of impeachments nor prohibits them -- but I observed that this outcome seemed unlikely, even in a hyper-toxic political system.  After all, given that the most that one can do to an impeached and convicted person is to remove him from office (where relevant) and prevent him from holding office again, at most Barack Obama would be a meaningful target.  Some Republicans might enjoy this, but if they did, so what?

This, however, is where non-textual interpretive moves become interesting.  For example, one could say that the possible grounds for impeachment -- "Treason, Bribery, or other high Crimes and Misdemeanors" -- would limit the pool of possible impeachees at least to former officeholders and their activities while in office.  That is, if treason and bribery are two examples of high crimes and misdemeanors (implied by "other"), and if "high" specifies offenses committed while holding elevated office, then what, say, Bill Clinton or George W. Bush did before or after being president would not qualify them for impeachment, no matter how bad it was.

I happen to think that that is a pretty good way to interpret the relevant language, but I am the first to admit that it is not required by the text.  For example, one could argue that Art. II Sec. 4 ("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") only specifies which offenses can be the basis for the required removal of a current officeholder.  It does not in fact say that those are the only offenses for which a person could be impeached and convicted.

The text itself, then, does not limit who can be impeached and convicted, nor does it even limit the offenses for which a sitting president could be impeached in the first place.  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.

Would that be a good idea?  Of course not.  Are there interpretive methods that the courts (if they viewed these questions as justiciable in the first place) could use to read meaning into the legal gaps in the text?  Of course there are.

Frankly, however, this exercise soon becomes an illegitimate attempt at reductio ad absurdum, saying that Trump -- who was impeached (again) while President -- cannot be convicted because an overbroad use of what the text seems to allow could be abusive.  It is similar to, but actually much weaker than, the "broccoli argument," by which conservatives fulminated that the Commerce Clause has to mean that Congress cannot give people the choice of buying health insurance or paying money to the government, else Congress will soon require everyone to eat broccoli.
That is, even setting aside how many other barriers there would be to stop a future Congress from skiing to the bottom of that hill, some things are self-limiting.  If a future Republican-led Congress wanted to go about impeaching all past and possible future Democratic politicians, and if the courts refused to be anything but textualist (or simply refused to intervene), then politics would become truly weird.  But trying and convicting Trump in his post-presidential life does not represent a big move down that supposedly slippery slope.

In short, the impeachment clauses do not actually offer much guidance on many questions, and what they do offer might not extend well to other situations.  Pointing out that the text does not answer every question, however, in no way means that the text never answers any question.  We know that presidents have to be at least 35 years old.  We know that when a sitting president is impeached and convcited for high crimes and misdemeanors, he must be removed from office.  We know that the only other thing that can happen to a person as a result of being impeached and convicted is to be disqualified from holding office in the future.

Those are all genuine limitations, and they are clear.  Other possibilities are "not plainly unconstitutional," which is not a double negative but in fact simply says that other interpretive moves must be made to add to the framework provide by the Framers, because that framework is as skeletal as it is.
And again, in the case of Trump's latest impeachment, every single one of those interpretive methods points to the same conclusion.  In other cases, there might actually be conflicting guidance provided by different methods, which is when judgment calls need to be made, based in part on input from constitutional scholars.

As it stands, however, even though Trump has the votes of Republican senators who are willing to ignore the plain meaning of the Constitution (as well as every other element of sound legal reasoning), that does not change the fact that convicting Trump as an ex-president is simply not prohibited by the Consititution.


Hashim said...

I'm glad to see your tacit retreat from the assertion in your original post (i.e., that ""Impeaching a Former President Is Plainly Constitutional") to the narrower point in my original comment (i.e., that the constitution's text alone does not "plainly" address the question one way or the other). In other words, the mere fact that there's no express prohibition on impeaching a former president doesn't mean that doing so is "constitutional", let alone "plainly" so, whether textually or otherwise.

But you still haven't addressed the most obvious *textual* way to fill in the textual gap -- namely, by reading A1, S.3 *in pari materia* with A2, S.4. In other words, because A2, S.4's *mandatory removal* provision specifies both a standard for impeachment and the types of officers subject to impeachment, those categories should be understood as also applying to A1, S.3's *impeachment authorization* provision, given the implausibility of the conclusion that the Framers left the constitution *silent* on such an important question, thus committing the question to the political branches (and any judicial review that may be available, cf. Walter Nixon case). Indeed, I think it's basically conceded by everyone that "high crimes and misdemeanors" was meant as a *limit* on impeachment (not just as a limit on mandatory removal), and if the standard applies under both provisions, the most natural textual inference is that the types of officers covered does too. Again, that alone doesn't answer the question about *former* officers (as opposed to individuals who have never been officers, but whom congress may wish to impeach to prevent them from becoming officers), which requires additional textual and historical analysis.

Finally, I can't help but flag that your suggestion that text can be "clear" regardless of history contributes to your erroneous discussion of the 14A's apportionment clause. You say that "persons" means "persons*, but *everyone* (including the pltfs and the lower courts) agreed that it does not, which is why foreign tourists and diplomats aren't included in the apportionment base. Rather, the drafting history of the constitution and its consistent application from the Founding demonstrates that "persons in each state" means "inhabitants" or "usual residents" of each state -- and thus the fight in the apportionment context was how those much vaguer terms apply to a subset of non-citizens who arguably lack the enduring ties connoted by those terms.

CEP said...

Hashim, I can't agree with the fundamental assumption that you're making — that the Framers would have "left the constitution silent on such an important question." Here are three representative matters:

The constitution is silent on what constitutes a Republican form of government.

The constitution is silent on whether there are any time limits imposed on proposed amendments... and, indeed, on time limits on its own ratification.

The constitution is silent on whether a person whose indenture or other condition of servitude was itself unlawful would have counted as a "free" person or an "other" person for apportionment (and this was a nontrivial problem in the nascent Kentucky territory).

The real problem, as is true of all textual arguments, is that the source of authority for the "plain meaning" is itself, inherently and always, subject to dispute. The very meaning of "impeach" is a great example; there is a lot of "useage" material (particularly in Blackstone and Coke, both of which were known to the more-legally-sophisticated of the Framers) that clearly includes former officials in its "plain meaning." Contrariwise, for many persons of the time, the only time they may have encountered the word was in the context of "impeach a witness," which is an orthogonal-at-best gloss to "impeach a public official." This is especially problematic in the eighteenth century because the newfangled concept of "dictionary" was an archly political document.

Hashim said...

CEP, I certainly agree with you that the constitution is silent on *many* important questions. I was making a more modest point. Namely, given that the constitution carefully specifies who can impeach (solely the House), who can convict (solely the Senate), what the punishment is (at most removal and disqualification), and who must be removed (specified officers convicted of high crimes and misdemeanors), it is implausible that the constitution bothered to spell out all those details but was silent on what seems to me the more fundamental threshold questions of which persons are subject to impeachment and what the standard is, thus leaving those matters entirely to the discretion of Congress. The more natural reading is that those questions were addressed implicitly, based on the historical context of impeachment and/or an in pari materia inference from the mandatory-removal provision.

Indeed, reading a2 s4 as literally limited solely to mandatory removal renders the provision largely meaningless, because the senate could always just refuse to convict if it didn't want to remove a covered officer who had committed a covered offense -- note that the provision doesn't require the Senate to convict, but rather requires removal upon conviction; since the Senate retains the right essentially to acquit despite the evidence (much as juries do), a mandatory-removal provision is basically toothless, but the provision still does important work if it is also construed to set forth the general standard for impeachment and impeachable officers (even though the OP is correct that it doesn't literally say that).

Greg said...

I do believe Prof. Buchanan is using an overly simplistic form of textualism to make some of his arguments, whereas many textualists suggest something more nuanced.

The text of articles 1&2:

Clearly Allows:
*Impeachment of the President, Vice President, and Civil Officers of the United States [the listed offices.]
*Impeachment and conviction for Treason, Bribery, or other high Crimes and Misdemeanors [the listed offenses.]
*Removal from office as a punishment for impeachment.
*"Disqualification to hold and enjoy any office of honor, trust or profit under the United States" as a punishment for impeachment.

Clearly Requires:
*Removal from the listed offices upon impeachment & conviction for the listed offenses.
*Impeachments to be tried in the Senate, with certain listed procedures.
*The Chief Justice to Preside when trying a sitting president.
*Conviction in the Senate by at least a 2/3 majority.

Clearly Prohibits:
*Impeachment by anyone besides the House of Representatives.
*Impeachments to be tried by anyone besides the Senate.
*Any other punishment for impeachment.

Is unclear on:
*What exactly constitutes "high crimes and misdemeanors."
*If a former holder of a listed office can be impeached.
*If a person who does not currently hold and who has never held a listed office can be impeached.
*If a person can be impeached for actions taken when not holding a listed office.
*The procedure for impeachment by the house, including the voting standard.
*If a standard of greater than a 2/3 majority can be used for conviction in the Senate.
*Who presides when a former President is tried.
*Who presides when someone besides the current President is tried.
*Interestingly, who presides when the current Vice President is tried.
(Does the Vice President preside over their own impeachment trial?)

While technically unclear. a reasonable reading of the text likely allows:
*Trying a former holder of the listed offices who was impeached while holding that office.

While technically unclear, a reasonable reading of the text likely prohibits:
*Impeachment for offenses other than the listed offenses.
Otherwise, the text does not require a listed officer to be removed from office if impeached and convicted for a reason other than the listed offenses.

In general, I suspect the text of the constitution is intentionally vague for a number of good reasons. For instance, consider a hypothetical former 1-term President who is found to have accepted bribes from a foreign adversary to allow that adversary to attack the US and then conspired with that adversary to fraudulently win the election, but that no clear evidence has been found that they did anything inappropriate after being inaugurated? Surely the constitution would allow impeachment in that scenario. A reasonable argument could be made that the framers would have even wanted to allow impeachment if this was discovered before the President-Elect actually took office.

Michael A Livingston said...

I have given up on arguing these points—my position is well-known and I don’t have much to add. However, I do have a point about the authors’ (plural) choice of words in recent Dorf on Law posts.

At least once, and perhaps more often, the authors refer to Republican "bleating” about alleged constitutional violations. The suggestion appears to be that these arguments are repetitive and unconvincing, resembling the bleating of sheep.

Whether or not this is fair to Republicans, it is manifestly unfair to tthe sheep. Bleating may sound repetitive to us, but I will be you a dollar that it doesn’t sound that way to the sheep. For a blog that features several well-known vegans, this is a serious error.

It may be that the authors anticipate, or hope for, the destruction of conservative Republicans, and are referencing the rather well-known Biblical verse “like sheep (lambs) to the slaughter” (Isaiah 53:7). Yet—or so I was taught—this image was originally an indication of faith and only later, in our modern world, became a synonym for indifference or passivity. One way or another, it seems unfair to the sheep, at least some of whom live in upstate NY and many of whom, I am told, are avid DOL readers. An apology, or at every least a qualification, appears to be in order.

Phil said...

To point out your factual error, foreign tourists, diplomats, and whoever else submits a census form is counted for the purpose of apportionment. Also, if you include your guinea pig as a person, your guinea pig is counted. So, no, foreign tourists and diplomats are not per se excluded.