The Constitutionality of Trying a Former President for Impeachment–A Reply to Frank Bowman

President Donald J. Trump speaks from Mar-a-Lago with military service personnel on duty around the world Friday, Dec. 25, 2020 (Official White House Photo by Shealah Craighead/https://flic.kr/p/2kmHRE5/Public Domain) Frank Bowman recently published an essay in Lawfare that criticized arguments I made in an essay on the site. Bowman, whose impeachment book, “High Crimes and Misdemeanors: A History of Impeachment for the Age of Trump,” is one of the standard recent works on the subject, is a thoughtful, serious and knowledgeable scholar. Yet I believe his criticism mistakes the principal arguments I advanced in my piece. In such a situation, the presumption has to be that I made my arguments in a confusing or misleading way, and so I am happy that Lawfare has given me the opportunity to set the record straight. Bowman has organized his critique along the lines of the modalities of constitutional argument, and I will do the same. In each case, I will state my position briefly; repeat the critique; and where I can, rebut it. Constitutional Text Very briefly, the center of my textual argument lies in this language from 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. My point is quite straightforward: T his language is the only text in the Constitution that sets forth who may be impeached and convicted, and on what grounds. It and only it inscribes the limits of those persons subject to the various impeachment clauses. There is no doubt in my mind that the language “The President, Vice President and all civil Officers” does not include former officials. They no more remain “civil officers” than I remain a Princeton undergraduate. Perhaps because I state this conclusion so definitely, Bowman charges me with claiming infallibility in my assessment of constitutional meaning. But the meaning of the constitutional text, as a matter of textual argument, isn’t up to me. It’s up to the ordinary English speaker. That is the nature of this modality of argument in U.S. constitutional construction. If anyone reading this text thinks, “[t]he President, Vice President and all civil officers of the United States” means “all persons who once were or who now are the President, Vice President and all other current or former civil officers,” then there is not much I can say to resolve our disagreement.  I put to one side the patently frivolous argument that the category of officials who can be tried in the Senate is broader than the category of “civil officers” because language in Article I, Section 3, Clause 6 refers to “persons” and not “civil officers.” (“[N]o Person[s] shall be convicted without the Concurrence of two thirds of the Members present.”) Surely, no one is contending that all persons, whether citizens or not, whether natural persons or non-natural persons like corporations, whether minors or most pertinently whether they hold or have ever held or are even eligible to hold office, are subject to impeachment and conviction for the offenses that might lead to the removal of a civil officer.  Now how does Bowman reconstruct my argument?  First, he says the text “does not directly address the question whether a president, vice president or other civil officer can be impeached by the House while in office, but tried, convicted and sanctioned by the Senate after leaving office.” I confess I simply don’t see this. Whatever may be the case with Trump’s impeachment by the House when he was a sitting president, how can he be convicted if he is no longer a “civil officer”? Who is to be convicted according to the text of Article II, Section 4, if not the “President, Vice President and all civil Officers of the United States”? How much more directly could the text specify who is subject to conviction? Second, he takes my argument to be that because the text of Article II requires the removal of the convicted official, it cannot apply to a person who cannot be removed. It’s not possible to impeach a dead person, a person who had resigned or a person previously convicted and removed, a person who had never been elected or appointed in the first place, and so on. This was Justice Joseph Story’s position in “The Commentaries”: If then there must be a judgment of removal from office, it would seem to follow that the Constitution contemplated that the party was still in office at the time of the impeachment. If he was not, his offense was still liable to be tried and punished in the ordinary tribunals of justice. And although a judgment of disqualification might still be pronounced, the language of the constitution may create some doubt, whether it can be pronounced without being coupled with a removal from office. These are perfectly acceptable arguments, but they are not my principal arguments. If the word “removed” were to be replaced with “punished,” my point would be exactly the same. My point is not a matter solely of removal. The Congress has no power to impeach and convict any person not a “civil officer.” Full stop. That is not to say that removal is irrelevant to the issue. There is a rather fey textual argument I have heard that runs like this: Of course you can disqualify someone who is not a civil officer of the United States. After all, once an officer has been impeached, convicted and removed, everyone agrees he can be disqualified from future office even though he is now not a “civil officer.” And if he’s not a civil officer in the first place, well then you don’t need to bother removing him. Therefore, removal is not in fact a predicate for disqualification. This Escher-like reasoning affirms the importance of removal as a predicate and captures a bit of the lunacy loose in the debate at present. Bowman also taxes me with the “subtle” stratagem of putting my discussion of the text of Article II first in my essay, before the texts of Article I, Section 2 and Article I, Section 3. The former provides, “T he House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment,” while the latter provides, “The Senate shall have the sole Power to try all Impeachments.” Article I, Section 3 also provides that 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 Since they come first, they should be read first, he suggests. In fact, the placement of the grounds for impeachment and the persons to whom it applies in Article II is important, but not because it is subordinated by ordinal numbering to Article I. The provisions for the basis for impeachment are in Article II because that is the article that governs the executive and the vast majority of serving civil officers are members of the executive branch; the senators and representatives of Article I are not civil officers. But let us play out Bowman’s suggestion. Bowman argues that reading the provisions in the order he suggests leads to a substantively different interpretation. “Read as part of this more natural sequence,” he writes, “ the removal language of Article II places no necessary restriction on the class of officials who may be impeached, convicted and penalized” (emphasis added ). I will reiterate here that my argument is not about removal, but there is also a more important consideration: If the “class of persons subject to impeachment” requirement of Article II can simply be erased b
The Constitutionality of Trying a Former President for Impeachment–A Reply to Frank Bowman posted first on http://realempcol.tumblr.com/rss