Feint-Hearted Originalism

Justice Scalia once called himself a “faint-hearted originalist.” I’m thinking of titling an article or book “Feint-Hearted Originalism.”

Too snarky? Or too obscure? I just can’t believe no one has feigned this feint before, as far as I can tell.

“Feign means to give a false appearance or to fake something. Feint also involves deception, but usually refers to physical movements meant to distract an opponent, such as a fake punch…” @MerriamWebster

Chapters on:

The unitary executive and presidential power; race and affirmative action; money = speech under the 1st amendment; voting rights…

What else?

A Unitary Puzzle: Why do conservative decentralizers want to centralize?

This week or next, perhaps this morning in Collins v. Yellen, the Supreme Court may issue another decision advancing the unitary executive theory.

It’s a puzzle in several ways: why are the judges and academics who otherwise are decentralizing states-rights federalists and opponents of the modern administrative state so in favor of centralized and expansive presidential power over the administrative state – in ways that would tend to expand executive regulatory power?

The answer draws on the political bogeyman of the “deep state” and the modern culture war. It also draws on a long Anglo-American political framing of country vs court – the people vs. the insider elites, “Real America” vs. the secular “swamp.” Conservatives think that nationally/electoral college elected presidents are a more likely populist/pro-business/pro-religion check against secular elite egghead expert bureaucrats.

Before explaining, let me note that I am working on a book tentatively titled “The Imaginary Unitary Executive,” which you can find summarized here in an Atlantic article last summer and here in my amicus brief filed last fall in this case. My article “Vesting,” questioning the textual and originalist basis for the unitary assumptions of indefensibility and exclusivity, will appear in the Stanford Law Review in March 2022. SSRN link: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3793213 I also have a paper “The Real Decision of 1789,” on the First Congress’s rejection of the unitary model. SSRN link: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3597496. I also recommend Stephen Skowronek’s article.

The term “unitary executive” emerged in the 1920s, but it was apparently not used to describe the Founding era until the 1940s, and the phrase was not used widely until the 1980s. Why the 1980s? During the Reagan era, conservative politicians and scholars sounded a handful of themes that remain familiar today: The courts were too elitist. Congress was ineffective. The New Deal administrative state had grown too large and too independent. Beltway-insider bureaucrats were out of touch with the public, and needed more centralized presidential power to rein them in. A Cold War demanded a strong presidency.

It was attractive to project these perspectives back onto the Founding, and to imagine a singular president as the democratic representative of the American people during times of crisis. From Eisenhower to Reagan, the Republicans won 6 out of 9 presidential elections, and believed they had realigned a “silent majority” on presidential/national issues (the Cold War/national security plus cultural/religious issues). But the House continued in Democratic hands almost entirely 1930 to 1994. Thus there was more confidence in presidentialism for a nationalist/conservative presidential check on Congress.

It was a defense of Nixon’s conduct, too, both at the time and especially as a post hoc justification for his conduct during Watergate (and Robert Bork’s obedience to Nixon, too). Reaganites were happy to embrace it, but not all Reaganite judges bought it, neither Rehnquist nor O’Connor. But Scalia was more influential than either of them on the conservative legal movement.

Ultimately the two wings of the Reagan movement – Evangelicals and libertarians – bought it as an ideology. It makes sense that Catholic and evangelical conservatives believe in unitary hierarchical power vs. secular Deep State bureaucracies. All of these themes and grievances predated the tenures of George W. Bush, Dick Cheney, and Donald Trump. The unitary myth helped elevate them and centralize their power. On balance, the unitary theory protected and empowered Trump: it weakened Mueller’s investigation (because Mueller had to steer clear of Trump’s finances and aggressive subpoenas to avoid dismissal); it allowed Trump to dangle pardons and obstruct justice with a claim of impunity and presidential immunity; it strengthened Barr’s hand as an extension of Trump and limited the DOJ; it served as his successful defense during the Ukraine impeachment; and it delayed Congress’s subpoena powers and weakened all checks and balances.

The Madisonian separation of powers failed to stop Trump. Instead, federalism — the decentralization of election administration, a domain insulated from presidential interference unitary administration – was his downfall.

“Vesting”: Text, Context, Dictionaries, and Unitary Problems

My new paper up on SSRN here. [Update: the Stanford Law Review will be publishing my article in March 2022.]

“Vesting”: Text, Context, Dictionaries, and Unitary Problems

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3793213

Abstract:

“The executive Power shall be vested in a President of the United States of America.” The Executive Vesting Clause is one of three originalist pillars for the unitary executive theory, that as a strict separation of powers, the president possesses executive powers like removal, exclusive from congressional limitations (i.e., they are indefeasible).

However, unitary judges and scholars have not provided historical evidence that “vest” had such an original public meaning. This Article offers a close textual reading of the word “vesting” and an examination of its context, with the first survey of the available dictionaries from the era and the word’s usage in early colonial charters and American constitutions, the Convention, and ratification debates. The bottom line is that, in this era, the word “vest” did not connote exclusivity, indefeasibility, or a special constitutional status for official power. At best, the meaning of “vested” was unclear, and more likely, its ordinary meaning was a simple grant of powers without signifying the impermissibility of legislative checks and balances.

Modern assumptions about “vesting” for official powers are likely semantic drift from property rights and ahistoric projections back from the later Marshall Court doctrine of “vested rights.” They also reflect flawed assumptions about English royal removal powers, Blackstone, and the context of early American administration.

In the first survey of the word “vest” in fifty of the era’s available dictionaries from 1640 to 1846 (33 before 1787, 18 after 1787), this Article finds that they generally defined “vest” in terms of individual property rights (usually landed property) without any reference to official powers. Some legal dictionaries referred in Latin to full possession of land or estates, but this evidence is less relevant to ordinary public meaning and to offices. Few had any definitions related to offices and powers, and none referred to exclusive or indefeasible powers.

Other early constitutions (especially the Articles of Confederation), the Convention and Ratification debates, and related documents similarly reflect a limited meaning. The word “vesting” first appeared in the Convention in the Virginia Plan, in a context of relatively weak anti-unitary executive power. A method of “intratextualism” and the canon of expressio unius offer clues about the meaning of “vest” when used in constitutional contexts. Other clauses often used other words to convey exclusivity and completeness: “all,” “exclusive,” “sole,” and “alone.” However, those words are missing from the Executive Vesting Clause.

This research has implications for Article I and Article III “vesting” (both for and against claims about formal non-delegation and jurisdictional exclusivity). If the Executive Vesting Clause does not convey exclusivity (and given the weaknesses of relying on “take Care,” “faithful execution,” or the Decision of 1789), it is unclear what remains of an originalist argument for Free Enterprise, Seila Law, and indefeasible removal powers.

Celtics trade deadline: Wise small move.

The Celtics didn’t make a bigger move for Vucevic (a good center) or Aaron Gordon. Instead, they made a smaller move for good-shooting small forward/guard Evan Fournier, trading two 2d-round picks (they gave up nothing, other than using up some of their trade exception from the Hayward move).

Lots of people are complaining that Ainge didn’t make a bigger move with the trade exception of $27M that expires before next season. The team is stuck in a glut of .500 teams fighting for a low playoff seed. This move isn’t going to make the Celtics a championship team, but no move could do that this year. And yet I think this move makes sense to make a middling move, rather than nothing.

Maybe Ainge understands that this Celtics team needs to make the playoffs and compete, but doesn’t think it’s good enough to go all in. This team missed one opportunity last year, but it still has a 4-year window. Save draft picks and some trade exception money as capital for this winter, while competing for the playoffs now.

If the Celtics get just a bit better, they can grab the 4th seed. And this move does make them better. They were missing a big and a wing-shooter, but the price for good bigs was too high. Fournier allows them to decrease the playing time of their fragile and inconsistent point guards Kemba and Teague or their rookie Pritchard, and they can roll with this line-up:

PG/defensive stud Marcus Smart, wing shooter Fournier, Brown, Tatum, and a big (more time for Time Lord Robert Williams!!!). If Kemba keeps improving, then Fournier can mix in as a scorer when Brown and Smart come out.

They can win in the 1st round, and they can knock off any of the top-3 seeds if their chemistry improves – and if the other top teams don’t get better chemistry. Strange things can happen in the playoffs. It is not obvious that the Nets can stay healthy and can play defense. It is not clear that the Bucks or Sixers are so great or healthy. No one in the West is scary. So make sure to be in the mix this year, but don’t overpay for any of these players who would not have been a big difference maker.

I still think Ainge made a lot of mistakes over the past year. Not making the Hayward-for-Myles-Turner deal this fall was a big mistake, because they needed a legit big. But if Ainge is thinking about saving capital for next year, I’m fine with it. Don’t give up a ton for Vucevic now. And I think there are legit concerns that Aaron Gordon is an underachieving chemistry problem.

Last point: It was crucial to improve this year. Missing the playoffs this year would be a disaster for team growth and confidence. They need to be in position for a 4 seed, but most fundamentally, Ainge needed to make a move, to improve the team, and give a vote of confidence that this team is worth some investment. But the key is making a bigger at the end of this summer by trading the picks Ainge didn’t trade now.

The Right Call Not to Call Witnesses

Before people get upset about the House Democrats not calling witnesses:
I think they understood the chances have increased significantly over the past 48 hours of Trump being criminally prosecuted for Jan. 6 (with witnesses, a real judge, and full legal process).
Plus they can bring these witness during a state or federal prosecution of the Georgia call (because Trump’s conduct before snd during the riot is context and evidence of intent.

I had said earlier and often that Trump would not face prosecution: the speeches themselves were not criminal incitement.
But now: new questions of contacts before and during the insurrection arose. I think a criminal investigation is now likely, and an indictment is plausible.

I think the House managers have done a great job. The problem is the Senate “judge and jury,” and as we’ve seen, the GOP Senators are only interested in obstruction and partisan spin.
Let prosecutors investigate and then – in a real courtroom – get a clean shot at questions.

If this Senate trial called witnesses now:
1) It would have been an unprepared circus;
2) that GOP Senators would use to their advantage to muddy up the testimony and taint the testimony in bad faith;
3) and decrease legitimate need for prosecution. Only 1 bite at this apple.

And 4) A delayed Senate trial does interrupt other urgent business, when the Democrats cling to a precarious 50/50 “majority” and a death or illness among any one of those 50 would endanger Covid relief, judicial confirmations, administration confirmations, voting rights legislation (we need all the luck and every vote and every minute for this agenda). Plus it is obvious that witnesses won’t switch 10 Senate Republican votes.

A courtroom is the more effective venue to question, with more time to prepare and make cooperation agreements and plea deals. Flip more co-conspirators to get all the way up to the crime boss.

And don’t forget tort civil suits for the personal injuries during the riot, with discovery and depositions of Trump and his contacts:

Impeach an Ex-President? GOP Senators Reject Originalism 44 to 6

The Trump legal team is getting history wrong—and, oddly, the Senate GOP just voted against their own legal philosophy.

My piece in Politico:

The majority of Donald Trump’s defense against his second impeachment so far is that the trial being held in the Senate right now is unconstitutional. His lawyers devoted half their brief and half of their speaking time this week to arguing that the Senate cannot try former officers. Senate Republicans voted 44 to 6 in agreement.

But what did the authors of the Constitution say about the timing of impeachment? That answer should matter a lot to Republicans, who are known for placing great weight in “originalism” when they invoke the Constitution—the meaning of the document when written in 1787 and then ratified by the public.

And if that’s the standard, those 44 Republicans might want to think again. The historical record reflects that the original public meaning of impeachment included trying and disqualifying former presidents. Those Senators simply ignored what the Founders said, and effectively voted against originalism 44 to 6…

Conclusion:

Along with Trump, originalism was on trial this week in the Senate. The point of originalism—and I say this as an originalist legal scholar—is that our Constitution is not supposed to be a wordy document narrowly fixing every point of law, but a framework that depends upon historical context to find meaning and purpose. As Senator Sasse and then-nominee Amy Coney Barrett explained in a helpful exchange during her confirmation hearings, the text is not enough to understand what the Constitution calls for; that’s why, Barrett explained, the Fourth Amendment right against unreasonable searches applies to cars, cellphones, and heat detection outside houses.

Contradicting the arguments they conveniently invoke for judicial appointments, the vast majority of Republican Senators this week ignored the whole principle of originalism. The historical record before the Senate is clear: The founding generation understood that former officials can be impeached and tried. In looking at the Republicans’ vote this week, it’s hard not to say that the Republicans didn’t just get their history wrong: They imposed their own preferred meaning on the Constitution, following partisanship rather than historical evidence. They embraced the very lawlessness they claim to reject. They used Trump’s four years to fill the federal bench urgently with ostensible originalists. But when the rule of law is now on the line, the Senate Republicans effectively voted to disqualify “originalism” itself.

Why didn’t Trump issue *more* corrupt pardons? State Law, Politics and Strategy

My article in the UK Independent: “Why didn’t Trump pardon himself and his family? It could be strategic.”

I offer my conjecture about why Trump pardoned so *few* cronies this week: Pardons can backfire… like I think they will for Steve Bannon because he faces even more state prosecutions and more backlash for receiving this pardon.

And while some have argued (unpersuasively) that impeachments disable a president’s pardon power as a matter of constitutional law, the events of January suggest that a House impeachments and a looming Senate trial had an effect (politically!) on the pardon power.

Finally, the remarkable number of pardons for corrupt former Republican congressmen or the cronies of current Republican congressmen may be Trump trying to stay in the good graces of Congressional Republicans… or recruiting politicians to his possible new “Patriot Party.”

A Textual Argument for Trying Ex-Presidents: Why “Conviction” and not just “Removal”?

As a follow-up to my piece yesterday on an originalist case for the Senate to try a former president (“The Originalist Case for Impeaching Ex-Presidents: Mason, Randolph & G.Morris”), I suggest an implicit textual argument as a reply to why disqualification requires a 2/3 vote, not a simple majority vote:

Why did the Framers use “convict” and not “remove” or “convict and remove” in Article I for impeachments, if removal was always a necessary first step?

Here is Article I, Sec. 3, Clause 6 and 7 (emphasis added):

Cl. 6: “The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.”

Cl. 7: “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: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”

If the Framers thought impeachment was available only to sitting officers, then one would think that removal was the necessary punishment as a first step, and then disqualification was a possible second step. Thus, removal would have been the only necessary word in Clause 6. (It seems silly to suggest a sitting officer could be disqualified after not being removed).

If impeachment applied only to sitting officers, and thus removal was the necessary first step in all cases, they could have written, “And no Person shall be removed without the Concurrence of two thirds of the Members present.” But they did not. Instead, they wrote “convicted.” Why use the word “convicted,” unless removal and disqualification were two separate and severable penalties?

And the Framers could have written: “Judgment in Cases of impeachment shall not extend further than to removal from Office, and then disqualification.” That would have signified the necessary first step, instead of leaving ambiguity about severability.

First, this is an important rebuttal to anyone who suggests disqualification could be by a bare majority, and also an answer to those who argue against a former officer’s disqualification trial because it may be misused by a bar majority.

Second, and relevant for this debate, it seems the Framers understood that “convictions” was a larger category in the first clause (clause 6). In the next clause, they specify two punishments (removal and disqualification) as a follow to convictions, just like criminal trials have a guilt/conviction phase and a penalty phase. There is nothing in these two clauses that suggests that removal is necessary before disqualification.

Thus, Article I’s text implies that conviction is trial phase, and removal and disqualification are penalty phase, and severable. If the Framers intended removal to be a necessary step, one imagines they also would have written “And no Person shall be convicted and removed without the Concurrence of two thirds of the Members present.” By separating conviction from removal and disqualification, the Framers suggest that the Senate can convict (by two thirds) and then disqualify a former officer.

An Originalist Case for Impeaching Ex-Presidents: Mason, Randolph, and Gouverneur Morris

Can a former president be tried by the Senate? The Constitution’s text may not address this question clearly, but the Convention debates of 1787 offer some significant evidence that the answer is yes.

Over the last few days, Judge Michael Luttig and impeachment expert Ross Garber have been making a formalistic textual argument that the Senate can put only sitting presidents on trial, and not former presidents. Others have made important textual, historical, and practical counterarguments (Vladeck, Kalt & Bowman, Whittington, Tribe, Gerhardt). [Update: I add a textual argument based on Art I, Sec 3, cl. 6 & 7 here]. Unfortunately, the post-ratification history is indecisive (especially to originalists). For example, the impeachments of Sen. Blount in 1797 and Sec. of War Belknap) are unclear as precedents (as Kalt acknowledges to Jack Goldsmith here), given that neither led to convictions. Moreover, even though the Blount impeachment occurred in the first decade of new Constitution, it has problems as evidence of original public meaning.

A crucial overlooked counterargument is the original public meaning revealed in the 1787 Convention itself. Together, delegates George Mason, Edmund Randolph, and Gouverneur Morris indicate a broad purpose of impeachment, especially in the context of election fraud (and electoral college controversies), which is most relevant at the end of presidential terms. Such misconduct occurs too late to be punished in the same term. One apt quotation if we are concerned with a narrow or broad reading on timing: Randolph, who identified the danger of presidential misconduct and insurrections, said, “Guilt wherever found ought to be punished.”

They do not answer the narrow question directly, but they are more persuasive that the original public meaning and the purposes of the impeachment clauses apply to former officials than an excessively close reading of one clause.

Narrow textualism, while appropriate for statutes that are supposed to specify details, has widely been understood to be less appropriate for Constitutions, which are not meant to have “the prolixity of a legal code.” Luttig and Garber make a fundamental mistake of treating the Constitution like a statute, and being hyperformalistic about the impeachment process. Luttig’s main argument (and I think his only argument) is a close reading of one clause, Article II, Section 2:

“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.”

Luttig asserts that “[T]he Constitution itself answers this question clearly” with its “plain text.” The only way the Constitution could answer this question clearly is if it said “Congress may not impeach and convict a former official.” One might argue that the actual wording implies a negative, but it does not say so explicitly or clearly.

Luttig adds another clause: “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.” However, one can read this as a disjunctive: Judgment includes removal and/or disqualification, but no more. The first interpretation is initially a plausible textual argument (demanding further inquiry), but the second is a tellingly weak textual overreach.

Luttig claims “[t]he purpose, text and structure of the Constitution’s Impeachment Clauses confirm this intuitive and common-sense understanding,” but Luttig offers only a hypernarrow textual reading for a conclusion that actually contradicts purposes, structure, intution, and common sense.

Before we turn back to 1787, let’s think about common sense. Several commentators have pointed out that Luttig’s interpretation would allow any impeached official to dodge trial and disqualification by resigning even a minute before trial, especially once they had a sense the vote was headed to conviction. As Brian Kalt has pointed out, this rule would have a perverse effect that the most guilty officials would be most likely to avoid disqualification, and it would be odd to put a process so entirely in the hands of a defendant.

Moreover, what does common sense tell us about when a sitting president is most dangerous? Obviously at the end of his term when running for re-election or facing a possible election defeat and trying to hold onto power. That’s precisely what has happened since Nov. 3.

It turns out that the Framers in the Constitutional Convention articulated these concerns.

The key debate was on July 20th (I provide full quotations below, but only partial quotations here). According to Madison’s notes, George Mason was especially concerned with election fraud and the electoral college: presidents corrupting electors to get elected and again to stay in power “by repeating his guilt.” It is important to acknowledge Mason used the term “whilst in office” to punish someone who attained office by fraud, but Mason was clearly worried about a president abusing power at the end of a term to stay in power. To deter such late-term re-election conduct, it would be odd to say that only a president who succeeds should be impeached and disqualified, but a president who tried and failed should be immune from disqualification.

A few speeches later, Randolph emphasized broad application: “Guilt wherever found ought to be punished. The Executive will have great opportunitys of abusing his power; particularly in time of war when the military force, and in some respects the public money will be in his hands. Should no regular punishment be provided, it will be irregularly inflicted by tumults & insurrections.” It is prescient that Randolph worried about presidents and insurrections, and it seems plausible that Randolph worried about not only insurrection against abusive presidents, but also a president losing an election and fighting against a transition. In the latter case, such conduct would happen only late in the term, and should be punished whether or not that president succeeded. Should a technicality of being out of office matter? As Randolph said, “Guilt wherever found ought to be punished.”

Perhaps the most remarkable speech was Gouverneur Morris, who was one of the key supporters of a strong presidency and a skeptic of impeachment. But after Mason, Randolph, Madison, Franklin, among others spoke for a broad power of impeachment, he conceded that his “opinion had been changed by the arguments used in the discussion.” After noting the infamous “Secret Treaty of Dover” in which Charles II made a corrupt deal with King Louis XIV that led to war, Morris concluded, “The Executive ought therefore to be impeachable for treachery; Corrupting his electors, and incapacity were other causes of impeachment. For the latter he should be punished not as a man, but as an officer, and punished only by degradation from his office.” The latter case was incapacity, and morally unobjectionable, and thus Morris would limit the punishment to removal. But by contrast, Morris implied that treachery and “corrupting his electors” should be punishable by more than just degradation (removal) from office. Morris was more clearly addressing corruption during a re-election effort — and the significance of disqualification beyond just removal. Morris seems to think that disqualification is crucial for presidents who cheated in the electoral college. The same logic applies with equal force to former presidents who might cheat and corrupt their way back to power.

Keep in mind that at this stage, there was no term limit for presidents, no 22d Amendment limiting presidents to two terms. The Framers had to worry about a president who might abuse power to hold on to office not just once, but multiple times. Without term limits, it was even more important to deter presidents from using their vast powers to stay in office for long periods of time.

Taken together, a fair reading of the Convention debate indicates that the Framers supported a broad impeachment process for presidential misconduct at the end of their terms, especially with respect to re-election abuses, corrupting or contesting electors, and insurrections. They also implicitly viewed disqualification as an important punishment after they were out of office.

This is a classic case where a close reading of a constitutional text is only the beginning of interpretation, not the end. Given the lack of clarity of the text itself, the Framers clarify the purposes of the clause, and it lines up with common sense: The original meaning of the impeachment clauses is that they applied to ex-presidents, as well as presidents.

Col. MASON. No point is of more importance than that the right of impeachment should be continued. Shall any man be above Justice? Above all shall that man be above it, who can commit the most extensive injustice? When great crimes were committed he was for punishing the principal as well as the Coadjutors. There had been much debate & difficulty as to the mode of chusing the Executive. He approved of that which had been adopted at first, namely of referring the appointment to the Natl. Legislature. One objection agst. Electors was the danger of their being corrupted by the Candidates; & this furnished a peculiar reason in favor of impeachments whilst in office. Shall the man who has practised corruption & by that means procured his appointment in the first instance, be suffered to escape punishment, by repeating his guilt?

Mr. RANDOLPH. The propriety of impeachments was a favorite principle with him. Guilt wherever found ought to be punished. The Executive will have great opportunitys of abusing his power; particularly in time of war when the military force, and in some respects the public money will be in his hands. Should no regular punishment be provided, it will be irregularly inflicted by tumults & insurrections. He is aware of the necessity of proceeding with a cautious hand, and of excluding as much as possible the influence of the Legislature from the business. He suggested for consideration an idea which had fallen [from Col Hamilton] of composing a forum out of the Judges belonging to the States: and even of requiring some preliminary inquest whether just grounds [FN11] of impeachment existed.

Mr. Govr. MORRIS‘S opinion had been changed by the arguments used in the discussion. He was now sensible of the necessity of impeachments, if the Executive was to continue for any [FN12] time in office. Our Executive was not like a Magistrate having a life interest, much less like one having an hereditary interest in his office. He may be bribed by a greater interest to betray his trust; and no one would say that we ought to expose ourselves to the danger of seeing the first Magistrate in forign pay, without being able to guard agst. it by displacing him. One would think the King of England well secured agst. bribery. He has as it were a fee simple in the whole Kingdom. Yet Charles II was bribed by Louis XIV. The Executive ought therefore to be impeachable for treachery; Corrupting his electors, and incapacity were other causes of impeachment. For the latter he should be punished not as a man, but as an officer, and punished only by degradation from his office. This Magistrate is not the King but the prime-Minister. The people are the King. When we make him amenable to Justice however we should take care to provide some mode that will not make him dependent on the Legislature.

The Chief Justice Should Preside in the Senate Trial

For Trump’s post-presidency Senate trial, I tentatively think, as a matter of constitutional interpretation, that the Chief Justice should preside.

It’s a reasonable question: “When the President of the United States is tried, the Chief Justice shall preside.” After Jan 20, Trump is no longer “President,” even if the misconduct was during his presidency. If he is not “the President,” then the presidential exception seemingly does not apply to former presidents, and the default rule stands: The Vice President presides.

But formalistic textualism is not the most appropriate method for the interpretation of concise (laconic and often deliberately abstract or inevitably imprecise) constitutional texts, even if it may be the best approach for the “prolixity” of statutes. The best reading of Artice I, Sec. 3 is first, originalist/purposivist: It’s not just the direct conflict problem for VP to preside in removal. Trying presidential conduct is fraught w/ political, partisan & personal conflicts.

Second, if one tries to apply the more formalistic/textual argument that a former president is no longer “president” (and, yes, that’s true), there is still a textual practical reading for the Chief to preside: In a normal Senate trial, who would preside during any *disqualification stage* after removal vote? When the sitting president has already been removed? He/she would be formally no longer the president. The formalistic textual reading (the Chief presides only for formally sitting presidents) would lead to the strange conclusion that the Chief Justice can never preside over Disqualification, even after presiding over the entire trial up to that point. The impeached president has been removed, and thus is no longer technically/formally “President of the United States.” Moreover, the vice president has been transformed into the President. Thus, according to the strict formalist textualist reading, the Chief Justice may never preside over the disqualification stage, and after a presidential removal, there is formally no Vice President anymore. So there is no Vice President left to preside.

Maybe a solution in the DQ stage for a just-removed president is the Senate chooses one of its own to preside (officer like Pro Tem). But that solution creates other problems: A “juror” would also be presiding as judge? It’s not a criminal trial, but this dual role would be an odd situation.

Thus, the best reading that is most consistent with the original constitutional principles and that makes common sense of the text in practice is that the Chief Justice should preside over an impeachment of presidents and former presidents.