Could Judge Porteous Become President?

To return to a subject from a few weeks ago, Seth Tillman argues that the Disqualification Clause does not authorize the Senate to disqualify an impeached and removed official from serving as president. See 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.  The clause authorizes the Senate to disqualify a removed official from holding an “Office of honor, Trust or Profit under the United States,” but Tillman contends that this term does not embrace the presidency.  Thus, a disqualified official like Judge Porteous would remain eligible for the presidency.

Tillman’s argument begins with the premise that the President is not an “Officer of the United States” within the meaning of Article II.  To substantiate this position, he points to the language of the Impeachment Clause, which states that the “President, Vice President, and all civil Officers of the United States” are subject to impeachment and removal.  Tillman points out that if the President and Vice President were considered to be “civil Officers of the United States,” the clause would more naturally refer to “all other Civil Officers.”   Moreover, a draft of the Constitution did use that very term, but it was removed by the Committee of Style, suggesting that the drafters deliberately chose not to leave the implication that the President is a “civil Officer of the United States.”  See S. Tillman, Opening Statement: Why President-Elect Obama May Keep His Senate Seat After Assuming the Presidency, University of Pennsylvania Law Review PENNumbra, Vol. 157, pp. 134, 137-38 (2008).

While this aspect of Tillman’s argument is controversial, I think it is persuasive. It is supported not only by the text of the Impeachment Clause, but the Commissions Clause, which provides that the President shall commission “all the officers of the United States.”  As Tillman notes, Presidents have never commissioned themselves or their Vice Presidents.  Similarly, Presidents and Vice Presidents are not appointed in accordance with the Appointments Clause, which would seem to be required if they were “officers of the United States.”

But granting that the President is not an “officer of the United States” under Article II, does it follow that he does not hold an “Office under the United States” within the meaning, for example, of the Incompatibility Clause of Article I?  Given that the President clearly holds an “office” (see, eg, Art. II, sect. 1, cl. 1, President “shall hold his Office” during a four year term), it is not obvious, as a textual matter, why his office would not be one “under the United States.”  The fact that the President is not treated as an “officer of the United States” for the specific purposes of Article II would seem to shed little light on the question.

Moreover, if the President does not hold an office under the United States, it would have a number of unsettling consequences: (1) Incompatibility Clause– as Tillman acknowledges (indeed proclaims), a sitting President would be able to simultaneously serve in Congress; (2) Foreign Emoluments Clause– a President would not be covered by this clause and would therefore be permitted to receive gifts and emoluments from foreign governments.  This seems like a peculiar exclusion, particularly since Article II expressly prohibits the President from receiving emoluments (other than his congressionally prescribed compensation) from either the United States or any of the states; and (3) Disqualification Clause– the Senate could not disqualify a convicted official from serving as president (or vice president) in the future.  Thus, if a sitting President were impeached, convicted and removed from office, he could be barred from holding appointed offices (such as federal judgeships or cabinet positions), but not from again serving as president.  

Tillman argues that the fact that these results seem absurd (or nearly so) to us does not necessarily mean that they would have seemed so to the Framers.  Fair enough, but there is little reason (at least that I can see) to think that the Framers would have found these results any more sensible than we do.  So, for the time being at least, I have to stick with the conventional wisdom on this one.