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 in favor – as well as some uncanny warnings about presidents at the end of their terms corrupting of the electoral college to hold onto power and sparking insurrections.

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 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, intuition, 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.

Tracking GOP impeachment votes

I made this Google Sheet tracker of the House GOP members most plausibly to impeach today:
86 who voted No on the challenge to PA’s electors (a smaller number than the AZ challenge).
I noted 26 signers the SCOTUS brief TX v. PA, leaving 60 to track closely.

After 5 House Republicans announced their votes to impeach yesterday (especially Liz Cheney), it seemed possible a dam might open, but so far this morning, the damned MAGA/GOP dam is holding.

I’m live-tweeting the House debate on Twitter here.

Cruz, Hawley, & Bleeding Kansas: The Dangers of Demonizing Democracy

My Slate piece today, written on Monday before the violence:

What happens when political parties reject elections and delegitimize democracy? American history tells us clearly: violence and bloodshed. Wednesday’s riot at the Capitol may seem unprecedented, but it was utterly predictable. On Sunday, I tweeted this thread on how attempts to steal American elections almost inevitably lead to violence, and I drafted much of this essay on Monday. While Wednesday’s violence was foreseeable, the question now is what Congress should do about the national leaders who enabled and inflamed this crisis.

Even after Wednesday’s literal assault on democracy, a significant number of Republicans continue to spread baseless conspiracy theories. Indeed, these members cited the spread of those theories in order to justify their decision to object to Wednesday’s Electoral College count, the precipitating event for all of this madness. As a pro-Trump mob was marching to the Capitol right on cue, Sen. Ted Cruz led the objections, swooning that “39 percent of Americans say the election was rigged. … You might disagree, but it is a profound danger to our democracy.” Yes, Ted Cruz spreading these baseless concerns, and then citing those concerns, is indeed a profound danger to our democracy.

American history is instructive in this regard. Specifically, the 1850s “Bleeding Kansas” episode when pro-slavery election fraud produced voting disputes and then a cycle of murders has a lot to teach… more in the link…

Pence cannot stop the electoral college

I’ve been getting inquiries worrying that Pence will block the Biden electoral college win when he presides in the Senate on January 6th. Don’t worry. Neither the 12th A nor the Electoral Count Act give him that power.

The 12th Amendment merely designates the President of the Senate (the VP) to “open all the certificates.” But then it uses the passive voice: “the votes shall then be counted.” Implicitly, Congress does the counting.

The Electoral Count Act is more detailed on the count process. Note that the president of the Senate (the VP) has no special role in resolving any dispute.

After there are objections to any state’s slate of electors, the only way to override the certified electors is if BOTH Houses “concurrently… reject” that slate. See 3 USC 15. Dems control the House. That’s simply never going to happen. The Senate isn’t going to reject any slate either. “But if the two Houses shall disagree…the votes of the electors whose appointment shall have been certified by the executive of the State…shall be counted.” 3 USC 15 . Governors already certified the Biden win, 306-232.

Don’t forget the Safe Harbor provision that the states all met in time and that legally protects the Biden win (306-232): Certification by Dec 8th “shall be conclusive, and shall govern in the counting of the electoral votes.” 3 USC 5. If Pence or the Senate tried to pull any extra-legal/illegal moves to sabotage the count, Biden could seek a court order immediately in federal court, receive the order, and the Supreme Court would refuse any Trump appeal by denying cert. But I don’t imagine that would be necessary.

My mentor Bruce Ackerman and my friend David Fontana wrote this article (summarized here) about how Adams in 1796 and Jefferson in 1800 counted electoral votes with formalistic problems (Vermont & Georgia, respectively. But there was no Electoral Count Act then. Moreover, the historical record does not suggest a substantive dispute over whether Vermont or Georgia intended the electoral votes to go to Adams or Jefferson, respectively. The vice presidents’ actions in 1796 & 1800 simply are not precedents for Pence to defy the voters or the Electoral Count Act.

Bottom line: There is no secret legal maneuver left to stop a Biden presidency. Pence & McConnell understand these rules & are in an awkward political position of their own sad making. Any drama before or on Jan 6 will be merely a pathetic show of Trump loyalty/cowardice.

PS: I just saw this Washington Post article on Pence and the electoral college by @jdawsey1@ColbyItkowitz. I’m surprised they didn’t try to explain more precisely why Pence has *no legal power* to stop the ElectoralCollege. The word “evident” is too weak.

Fri 5 pm update Pennsylvania

Pennsylvania update:
Remember when I was frantically emailing and posting about Pennsylvania voters who had ordered absentee ballots, but understood it was important to vote in person because they distrust Trump’s mail? And many people were saying you may have to use a provisional ballot?
Many of those voters were Democrats and especially people of color.
Well, update from MSNBC:

“Pennsylvania officials say a lot of the remaining votes are provisional ballots cast in urban precincts on Election Day, and they are the last votes we count.”

Biden already has a good lead with lots of Biden batches to count. Nate Silver says the red areas have a few more votes left than we have thought, but they’re small and not as red as the rest of those counties. The PA count has been slowed down by Trump lawsuits and 2 mechanical/logistical errors, but it’s still on track. Still no legal basis to stop the count or reverse the lead. PA Dems still say they project a win by 100,000, but it’s going more slowly than they hoped.

8 pm update: “The Pennsylvania SOS office is reporting 100K mail ballots left to be counted statewide. The top six counties are all Biden counties, with a combined 70K (inc 35K in Allegheny, 23K in Philly). Biden’s lead will just keep going up.”

And the Biden 80/20 pace continues in Allegheny County: link.