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I’m Not Dead . . . . I’m Just in Congress.

In Impeachment and Assassination, Professor Josh Chafetz makes the inventive argument that impeachment, at least presidential impeachment, is best viewed as a metaphorical form of political assassination.  Chafetz argues that impeachable offenses should be viewed as “assassinable” offenses, by which he means the type of offenses that warranted assassination in historical instances known to the Framers.  To illustrate the scope of such offenses, he provides a fascinating description of two examples that were foremost in the mind of Benjamin Franklin– the assassination of Julius Caesar and the execution of Charles I.

Chafetz’s provocative theory is challenged by Seth Tillman in The Originalist Who Came In From The Cold: A “New” View of the Incompatibility Clause, the Removal & Disqualification Clause, and the Religious Test Clause–A Response to Professor Josh Chafetz’s Impeachment & Assassination.  Tillman focuses on Chafetz’s claim that impeachment (and conviction) is the equivalent of “political death.”  Tillman argues that impeachment is unlike death, even metaphorically speaking.

I tend to agree with Tillman on this.  To begin, being a former president, even one who is a private citizen, is not quite political death.  How much like political death it is will depend on a variety of circumstances, of which impeachment is only one.  No president, of course, has ever been impeached and removed, but former President Clinton (impeached but not removed) seems to be enjoying quite an influential post-presidency, although he holds no formal office.

Moreover, as Chafetz acknowledges, the Constitution does not empower the Senate to disqualify anyone from holding state office.  Tillman points out that this means a disqualified official can serve in positions such as Governor or state legislator, offices which are not only significant in themselves but may involve the exercise of powers that affect the federal government (such as a Governor’s appointment of an interim US senator to fill a vacancy).  While the fact that disqualification is not applicable to state officers is understandable on federalism grounds, it tends to attenuate the “impeachment as political death” metaphor.

Tillman points to a number of other positions that a disqualified officer might hold; these include White House advisor (at least if one accepts the proposition that such an advisor is not an “officer” under the Appointments Clause), presidential elector, and delegate to an Article V convention to propose amendments (or to a state ratifying convention).  And, President Clinton might add, First Spouse.

Even more tellingly, as discussed in a prior post, a disqualified officer is still eligible to serve in Congress.  Indeed, a current Member of Congress, Representative Alcee Hastings, was formerly a federal judge who was impeached and removed from office (though not disqualified).  Hastings’ post-impeachment experience can hardly be called a political death.

Perhaps most importantly, the Constitution does not require that the Senate disqualify those who are impeached and convicted.  Thus, if the Senate were ever to remove a sitting President, it is free to decide that his “high crimes and misdemeanors” do not merit disqualification at all.  In that case, the former president would clearly suffer no “political death.”

All of which suggests that the “impeachment as political death” metaphor is considerably  overstated.  Tillman, however, is not content to stop there.  He contends that the Disqualification Clause does not authorize the Senate to disqualify anyone from future service as president (or vice president).  This contention I will address another day.

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