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Is the Presidency an Office “Under” the United States?

Applying Benjamin Cassady’s “electoral pardon” principle might suggest that the Disqualification Clause is inapplicable to the presidency (and vice-presidency). After all, if voters are allowed to disregard a candidate’s prior impeachment (or expulsion) and elect “their crook” to Congress, why shouldn’t the same hold true for a candidate for president? Professor Tillman maintains that the Disqualification Clause doesn’t apply to any elected offices, whether in Congress or the executive branch, thus consistently preserving the “electoral pardon” principle. Cassady, on the other hand, contends that the Framers did not take the principle that far:

[I]t should be noted that the Presidency was a uniquely American institution, substituting an elected and impeachable chief executive for an English monarch who was legally unreachable because he was presumed incapable of wrongdoing. As a result, the Wilkensian lessons of popular sovereignty and electoral pardon did not develop in the context of the executive branch, and it is sensible that the Framers would settle on a different default rule (impeachment and disqualification) for the elected President than the rule (expulsion and re-election) applied traditionally to the people’s legislators. Put another way, disqualifying an elected President for official wrongdoing couldn’t encroach on the people’s traditional right to pardon and re-elect a chief executive, because no such right existed in English history.

Cassady, 32 Quinnipiac L. Rev. at 276 n. 332.

Frankly, this explanation strikes me as rather circular. As indicated in my last post, however, I don’t find the “electoral pardon” principle all that persuasive in explaining the Disqualification Clause in the first place, and it seems to me that there is a stronger policy reason for disqualifying candidates for the presidency than for other offices, elected or appointed. But, as I am sure Professor Tillman would be quick to remind me, my policy intuitions are not constitutional law.

The precise question is whether the president holds an “Office of honor, Trust or Profit under the United States” as that phrase is used in the Disqualification Clause. Cassady’s article sheds some light on the origin of this language. He provides examples in English statutory law that referred to some variant of an “Office of honor, Trust or Profit,” where it almost always referred to offices conferred by the Crown. Id. at 278-80. As such, the offices were often identified as being “under” the Crown.

Early state constitutions also used terminology like “offices of honor, trust or profit” to refer generally to positions in the executive and judicial branches. See id. at 280-81 (“The overwhelming majority of examples from state constitutions distinguishes sharply between those who hold offices of honor, trust, or profit and members of the legislature”) & n. 355. Sometimes these offices were identified as being “under this state,” “under this commonwealth,” or “under the government.” See, e.g., Ga. Const. of 1777, art. XI (“No person bearing any post of profit under this State . . . shall be elected as a representative.”).

An obvious question then is whether the governor of a state was considered to hold an office of honor, trust or profit “under” the state or the state government. If so, it would seem exceedingly odd that the Framers would have used a similar phrase and expected the president to be excluded without any explicit statement to that effect.

The Virginia Constitution of 1776, for example, contains the following:

The Governor, when he is out of office, and others, offending against the State, either by mal-administration, corruption, or other means, by which the safety of the State may be endangered, shall be impeachable by the House of Delegates. Such impeachment to be prosecuted by the Attorney-General, or such other person or persons, as the House may appoint in the General Court, according to the laws of the land. If found guilty, he or they shall be either forever disabled to hold any office under government, or be removed from such office pro tempore, or subjected to such pains or penalties as the laws shall direct.

(emphasis added). Does “any office under government” include the governorship? I don’t know, but the Virginia delegation to the Philadelphia Convention must have had an understanding of that question one way or the other.

The Massachusetts Constitution of 1780 provides:

The senate shall be a court, with full authority to hear and determine all impeachments made by the house of representatives, against any officer or officers of the commonwealth, for misconduct and maladminstration in their offices; but, previous to the trial of every impeachment, the members of the senate shall, respectively, be sworn truly and impartially to try and determine the charge in question, according to the evidence. Their judgment, however, shall not extend further than to removal from office, and disqualification to hold or enjoy any place of honor, trust, or profit under this commonwealth; but the part so convicted shall be, nevertheless, liable to indictment, trial, judgment, and punishment, according to the laws of the land.

Here the disqualification language applies to “any place,” which may be a different or broader term than “any office.” It might, for example, embrace legislative seats as well as offices. But there would seem to be little doubt that a governor holds an office (and in any event the Constitution is clear that the president holds an office); thus, the real issue would seem to be whether the Massachusetts governor holds an office “under” the commonwealth. Again, the Massachusetts delegation to the Philadelphia Convention would presumably have had an understanding of this issue.

Another provision of the Massachusetts Constitution also may shed light on the question:

And no person shall ever be admitted to hold a seat in the legislature, or any office of trust or importance under the government of this commonwealth, who shall in the due course of law have been convicted of bribery or corruption in obtaining an election or appointment.

If the governor did not hold an “office of trust or important under the government of this commonwealth,” this provision would be inapplicable to the governorship, which would be an exceedingly odd result.

Moreover, it appears that colonial governors would have held, pursuant to English law, offices of trust, honor or profit under the Crown. Presumably, if the early state constitutions had wanted to exclude the governor, they would have used different terminology or been explicit in excluding the governor from this general category.

More generally, there have been numerous state constitutions throughout our history that contain their own disqualification clauses or otherwise use phrases similar to that in the Disqualification Clause. If there were a broad understanding that governors (or other elected state officials) were excluded from the term, one would think that there would be some evidence of that somewhere.

There have been few impeachments of governors during our history and even fewer that have resulted in disqualification. What evidence there is, however, suggests that judgments of disqualification have been understood to preclude the individual from serving as governor again. For example, in the 1871 impeachment of Nebraska Governor David Butler, a senator declined to vote for conviction on the grounds that there would be no judgment of disqualification, explaining “[i]f the Governor is a suitable person to hold office hereafter, I do not see why we should remove him at the present time.” The implication is that Butler could have been disqualified from future service as governor had the senate chosen to do so.

In 1917, the Texas senate convicted Governor James Ferguson after an impeachment trial, decreeing that he be removed from office and “be disqualified to hold any office of honor, trust or profit under the state of Texas.” (hat tip: Eugene Volokh). Ferguson later decided that he would like to run for governor again, and he raised a number of challenges to the verdict, all of which were rejected by the Texas Supreme Court. See Ferguson v. Maddox, 263 S.W. 888 (Tex. 1924). It does not seem to have occurred to Ferguson, however, that he might be eligible because the governorship was not an  “office of honor, trust or profit under the state of Texas.”

This seems to leave us with three possibilities. One is that a governorship was generally understood not to be an office of honor, trust or profit under the state at the time of the framing, but that this understanding dissipated without ever leaving a trace that it ever existed. A second is that the Framers decided that the president should be treated differently than a governor in this regard (for reasons that are not clear), but never felt the need to make this explicit in any way.

Neither of these possibilities strikes me as likely, and the burden of proof should be on the party advancing them. Otherwise, I will stick with the third possibility, namely that the presidency is indeed an office of honor, trust or profit under the United States.

One Comment

  1. Seth Tillman says:

    Mike,

    In regard to the question of whether or not a state governor is an “office under the State” or an “officer under this State,” early state (constitutional, statutory, and judicial) materials were mixed and ambiguous. This is not surprising — some times governors were elected popularly, other times they were chosen by the legislature. Similarly, it is not surprising that the nomenclature changed, particularly as election procedures changed over time (shifting from legislative choice to more popular election modes).

    My own view is that generally officer under this State-language does not reach the office of governor, i.e., an official at the apex of governmental authority (within a branch of government). See, e.g., DEL. CONST. of 1792, art. III, § 5 (“No member of Congress, nor person holding any office under the United States or this State, shall exercise the office of Governor.”). This Delaware constitutional provision—enacted some three years after ratification of the Constitution—would seem to exclude the office of governor from the category of office under . . . this State (apparently referring to lesser offices). Such antebellum materials are quite common; they appear in each and every decade prior to the Civil War. See, e.g., PA. CONST. of 1790, art. II, § 5 (“No member of Congress, or person holding any office under the United States, or this state, shall exercise the office of Governor.”); KY. CONST. of 1792, art. II, § 5 (“No member of Congress, or person holding any office under the United States or this State, shall execute the office of Governor.”); N.H. CONST. of 1792, § 93 (“No governor, or judge of the supreme judicial court, shall hold any office or place under the authority of this state, except such as by this constitution they are admitted to hold . . . .”); OHIO CONST. of 1802, art. II, § 13 (“No member of Congress, or person holding any office under the United States, or this State, shall exercise the office of Governor.”); IND. CONST. of 1816, art. IV, § 5 (“No member of Congress, or person holding any office under the [U]nited States, or this State, shall exercise the office of Governor, or Lieutenant Governor.”); ME. CONST. of 1820, art. V, § 5 (“No person holding any office or place under the United States, this State, or any other power, shall exercise the office of Governor.”); MICH. CONST. of 1835, art. V, § 16 (“No member of congress, nor any other person holding office under the United States, or this state, shall execute the office of Governor.”); N.J. CONST. of 1844, art. V, § 8 (“No member of Congress, or person holding an office under the United States, or this State, shall exercise the office of Governor . . . .”); CAL. CONST. of 1849, art. V, § 12 (“No person shall, while holding any office under the United States, or this State, exercise the office of Governor, except as hereinafter expressly provided.”); OR. CONST. of 1857, art. V, § 3 (“No member of Congress, or person holding any office under the United States, or under this State, or under any other power, shall fill the office of Governor, except as may be otherwise provided in this Constitution.”).

    There is a line of state judicial authority supporting my view of such language. See The State ex rel. Ragsdale v. Walker, 33 S.W. 813, 814 (Mo. 1896) (Macfarlane, J.) (“An office under the state must be one created by the laws of the state. The incumbent must be governed by state laws and must exercise his powers and perform his duties in obedience to a statute of the state.” — which would seem to exclude the governor).

    Undoubtedly, some contrary authority also exists. See, e.g., PA. CONST. of 1790, art. IV, § 3 (”The Governor, and all other civil officers, under this commonwealth, shall be liable to impeachment for any misdemeanor in office . . . .”); OHIO CONST. of 1802, art. I, § 24 (“The Governor, and all other civil officers under this State, shall be liable to impeachment for any misdemeanor in office . . . .”).

    When state constitution drafters wanted to include the governor as a “civil officer”, they used “other” prior to “civil officer” in their state analogue to the federal impeachment clause. The word “other” preceded “civil officer” in a draft version of the federal impeachment clause, but it was dropped by the Committee of Style and thus “other” does not appear in the final draft of the federal constitution. As Justice Story explained:

    ‘[C]ivil officers of the United States’ [as used in the Impeachment Clause] meant such, as derived their appointment from, and under the national government, and not those persons, who, though members of the government, derived their appointment from the states, or the people of the states. In this view, the enumeration of the president and vice president, as impeachable officers, was indispensable; for they derive, or may derive, their office from a source paramount to the national government. And the [Impeachment Clause] of the [C]onstitution . . . does not even affect to consider them officers of the United States. It says, ‘the president, vice-president, and all civil officers (not all other civil officers) shall be removed,’ &c. The language of the clause, therefore, would rather lead to the conclusion, that they were enumerated, as contradistinguished from, rather than as included in the description of, civil officers of the United States.

    And one 19th century commentator concluded:

    DAVID A. MCKNIGHT, THE ELECTORAL SYSTEM OF THE UNITED STATES: A CRITICAL AND HISTORICAL EXPOSITION OF ITS FUNDAMENTAL PRINCIPLES IN THE CONSTITUTION, AND OF THE ACTS AND PROCEEDINGS OF THE CONGRESS ENFORCING IT 346 (Philadelphia, J.B. Lippincott & Co. 1878) (noting that “[i]t is obvious that . . . the President is not regarded ‘as an officer of, or under, the United States,’ but as one branch of ‘the Government.’”).

    Seth

    Seth Barrett Tillman, Interpreting Precise Constitutional Text: The Argument for a “New” Interpretation of the Incompatibility Clause, the Removal & Disqualification Clause, and the Religious Test Clause–A Response to Professor Josh Chafetz’s Impeachment & Assassination, 61 CLEVELAND ST. L. REV. 285-356 (2013), available at
    http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1622441

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