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.