The Blount Case and Congressional Precedent

         Today I want to return to a subject mentioned in a prior post relating to the 1799 impeachment trial of former Senator William Blount for acts committed prior to his expulsion by the Senate. Blount’s offenses, though not directly connected to his service in the Senate, were serious. Blount concocted a scheme to get himself out of financial difficulties by starting a war in which Indians and frontiersmen would attack Spanish Florida and Louisiana for the purpose of transferring those territories to Great Britain. A little light treason, as they might say on Arrested Development.

         Nonetheless, Blount’s impeachment was dismissed after the Senate, by a relatively close vote of 14-11, decided that it “ought not to hold jurisdiction of the said impeachment.” The Senate’s deliberations were secret and its order of dismissal did not specify why it had reached this decision. However, the conventional view or interpretation (as I will refer to it herein) is that the Senate was persuaded by Blount’s defense that senators are not “civil officers of the United States” and therefore not subject to impeachment.

         This conventional view has been challenged in modern times, most prominently by Professor Buckner Melton, a leading scholar of the Blount case. Professor Melton argues that because there were three different jurisdictional arguments made by Blount’s defense, it cannot be assumed that the Senate acted because of the “officer of the United States” issue:

Given all the possibilities the arguments had raised, the silence of the motion to dismiss as to the specific jurisdictional reasons for the dismissal is crucial. Given that silence, the dismissal cannot be taken clearly to mean that Senators aren’t civil officers or that they aren’t subject to impeachment. It may mean that; it may not. We simply don’t know.

Buckner F. Melton, Jr., Let Me Be Blunt: In Blount, the Senate Never Said that Senators Aren’t Impeachable, 33 Quinnipiac L. Rev. 33, 38 (2014). He argues that “nowhere in the Blount proceedings did the Senate establish any rule or precedent that Senators cannot be impeached.” Id. at 36.

         At the outset we should distinguish among three potential reasons why the decision in the Blount case might be important. The first is that as a founding era decision of the Senate, it could shed direct light on the original meaning of the Constitution. See, e.g., Marsh v. Chambers, 463 U.S. 783 (1983) (upholding legislative prayer as consistent with the First Amendment in large part based on congressional practice dating  back to the First Congress); id. at 790 (“In this context, historical evidence sheds light not only on what the draftsmen intended the Establishment Clause to mean, but also on how they thought that Clause applied to the practice authorized by the First Congress—their actions reveal their intent.”). For this purpose the weight given to the Blount decision might depend not only on the closeness of the vote, but also on who (i.e., framers and/or ratifiers) voted each way.

         A second and distinct reason for the Blount case’s potential significance is that signified by the conventional view, namely that the case constitutes an authoritative congressional precedent for the proposition that senators (and by extension members of the House) are not impeachable “civil officers of the United States.” Such precedents are recognized both by the courts and Congress, though it is fair to say that the courts have been ambivalent about the weight to give them. See, e.g., Arizona State Legislature v. Arizona Independent Redistricting Comm’n, 576 U.S. 787, 817-19 (2015) (citing favorable congressional precedent while suggesting that a contrary, but divided, precedent should not be relied upon due to likely political motives underlying it); id. at 824-25, 837-39 (Roberts, C.J., dissenting) (accusing majority of ignoring the controlling congressional precedent); Powell v. McCormack, 395 U.S. 486, 546-47 & n.85 (1969) (casting doubt on the value of congressional precedent, apart from its utility in illuminating the intent of the framers). On the other hand, Congress, the most important constitutional actor with regard to impeachment, tends to take its own precedents rather seriously. And as discussed further below, the Blount case (and the interpretation which followed it) should be understood as a particularly significant type of congressional precedent, one which satisfies the criteria for “constitutional liquidation” (a term which is not as ominous as it sounds).

         The third reason why the Blount case may be considered important, and the one which has given the case some attention in recent months, relates to the interpretation of section 3 of the 14th amendment. As we have discussed previously, the Blount case helps to explain why the framers of section 3 thought it necessary, or at least prudent, to separately enumerate senators and representatives, rather than assuming they would be covered by the general categories of “officer of the United States” and “office . . . under the United States.” It should be noted that the Blount case’s relevance here does not necessarily depend on its precedential status; what matters for the section 3 issue is what the framers of the 14thamendment thought the Blount case stood for, not whether their view was correct. Even those who question the Blount case’s precedential status, such as Professor Lederman, acknowledge that there was “ongoing debate and uncertainty” at the time of the 14th amendment’s framing about whether members of Congress were officers of the United States, which could explain the decision to separately enumerate members out of an abundance of caution.

         Our subject today, however, is only the second of these three reasons—the precedential status and effect of the Blount case apart from any bearing it might have on original meaning. I will endeavor to show, contra Professors Melton, Lederman and others, that the conventional view of the Blount case is in fact the correct one.     

Congressional Precedents and Constitutional Liquidation

         Professor Melton argues that the senators who voted to dismiss the Blount impeachment may have only agreed that the Senate lacked jurisdiction but not on the specific reason; for that matter, some may have had prudential or political reasons for voting to dismiss that were not jurisdictional at all. See Melton, 33 Quinnipiac L. Rev at 38, 40-41. He further notes that the Senate deliberations went unreported; he says “[t]his is a shame, for if we had an account of those debates, we might be able to say with greater certainty what the Senators were thinking when they dismissed the impeachment.” Id. at 39. I suppose it is true that a transcript of the deliberations might give us “greater certainty” about what the senators were thinking. Then again, it might not. But I doubt either way it would make a material difference to the Blount case’s strength as a congressional precedent.

         Unlike judicial precedents, congressional precedents very rarely involve a written statement of reasons explaining the decision reached. Instead, they are typically established by votes on bills or resolutions which may not directly state the particular legal proposition at issue, much less any supporting reasoning. Even when deliberations are public, members often make ambiguous or inconsistent statements, have differing understandings of the issue before them, or say nothing at all.

         Consider, for example, the “Decision of 1789,” one of the most significant congressional precedents, which has long been cited for the proposition that the Constitution’s grant of executive power to the president includes the authority to remove executive offers. See Saikrishna Prakash, New Light on the Decision of 1789, 91 Cornell L. Rev. 1021, 1023 (2006). Academics have spilled large quantities of ink debating whether a majority in Congress actually endorsed this proposition or whether the key votes in favor of presidential removal represented a coalition of those who believed that the president had a constitutional removal power and those who merely favored congressional authorization of such a power. See id. at 1024 (describing debate). This debate cannot be resolved with direct or conclusive proof about why the members voted (or even why they said they voted); instead, the best reading of the precedent must be constructed through a careful analysis of and reasonable inferences from the legislative action in question. See, e.g., id. at 1067 (arguing that while “[o]ne cannot conclusively declare that all members of the enigmatic faction believed wholeheartedly in the executive-power theory . . .  it seems likely that all of them felt comfortable with the executive-power theory, at least to the extent of voting for bills that apparently endorsed it.”).

         Perhaps more significantly, the validity and strength of a congressional precedent is not determined by a single legislative action. As Professor Prakash explains, it is important to look at how the precedent was interpreted contemporaneously and subsequently, whether the principle(s) it (ostensibly) endorsed were later reaffirmed or repudiated, and whether its guidance was followed in official practice. See id. at 1063 (arguing that these considerations support the conclusion that the “Decision of 1789” should be read as an endorsement of the executive-power theory).

         What Professor Prakash describes is an example of the more general process of “constitutional liquidation.” See William Baude, Constitutional Liquidation, 71 Stanford L. Rev. 1 (2019). As we have discussed before, Professor Baude identifies a three-part test, drawn from James Madison’s thinking, for determining when historical practice can fix or “liquidate” the meaning of a constitutional provision: (1) the provision must be ambiguous or indeterminate; (2) there must be a course of deliberate practice based on a widely-understood interpretation of the constitutional provision; and (3) the practice must result in a lasting constitutional settlement where the practice/interpretation is widely accepted in government and the general public. Id. at 13-21.

Analyzing the Rationale of the Blount Case

         With these considerations in mind, let us turn to this recent blog post by Professor John Mikhail. Mikhail covers a number of issues relating to the meaning of “officer of the United States” in the original Constitution. Much of what he has to say is interesting and insightful, but his discussion of the Blount case requires refinement. Mikhail approvingly cites Melton for the proposition that “the Senate’s action was essentially a political decision, which did not entail a judgment that Senators were not impeachable;” he then argues that “the best historical account of the Blount affair yields a different lesson about the original meaning of the Constitution.” Specifically, Professor Mikhail cites substantial evidence that prior to the Blount trial dozens of framers and ratifiers, along with many others in the founding generation, had in one way or another expressed the view that senators were impeachable. Some, like Edmund Randolph, Alexander Hamilton, and George Mason, had stated or intimated this view during the ratification process. Others, including the members of the House that unanimously voted to impeach Blount, did so in connection with the impeachment case itself. Mikhail points out, for example, that George Washington was notified in advance of the impending Blount impeachment and tacitly expressed his approval.

         To be sure, we cannot be sure how much, if any, consideration these individuals gave to the question whether senators were “civil officers of the United States” within the meaning of the Impeachment Clause. Some may have assumed they were without thinking about it, some may have not realized it was an issue, and some may have believed that everyone was impeachable regardless of whether they were civil officers. One could not confidently infer, for example, what George Washington thought (if anything) about this particular issue.

         Taken as a whole, however, this evidence at least shows that there was no consensus or widely shared understanding, prior to the Blount trial, that senators were not “officers of the United States.” This is of some significance because the evidentiary inferences Professor Tillman has attempted to draw from various historical incidents (see here and here) make little sense if there was no consensus that elected officials were not “officers of the United States” and did not hold “offices under the United States.” Put another way, if Washington’s approval of the Blount impeachment does not tell us much about his view on whether senators were officers of the United States, his acceptance of gifts (arguably) covered by the Foreign Emoluments Clause tells us even less about his view on whether presidents hold “offices under the United States.”

         But this evidence has no bearing on the precedential status of the Blount case. It may provide some support for the proposition that the Blount case was wrongly decided, but how much is questionable. After all, it was not until the Blount impeachment trial that the question whether a senator was an “officer of the United States” for purposes of the Impeachment Clause was seriously debated and the constitutional arguments on both sides fully presented. In any event, the precedential status of the Blount case is not determined by what happened before the trial, but what happened during the trial and thereafter.

         There are a number of reasons to conclude that the Senate’s dismissal of the Blount impeachment was based primarily, if not exclusively, on the determination that a senator was not a civil officer of the United States. As Professor Currie has pointed out, the two other jurisdictional arguments (Blount was only a former senator because he had been expelled from the Senate prior to his trial and that impeachment was only proper for misconduct in the course of performing official duties) were weak and not pressed that strongly by Blount’s defense. David P. Currie, The Constitution in Congress: The Federalist Period 1789-1801 278-79 (1997). Instead, “[t]he defense placed most of its money on the argument that a Senator was not a ‘civil officer of the United States’ . . . and thus not subject to impeachment at all.” Id. at 279.

         Furthermore, although the Senate’s final dismissal did not specify why jurisdiction should not be exercised, just one day earlier it had rejected, by an identical 14-11 vote, a motion which began by expressly declaring: “That William Blount was a civil officer of the United States, within the meaning of the Constitution of the United States, and, therefore, liable to be impeached by the House of Representatives.” Melton, 33 Quinnipiac L. Rev. at 38. Professor Melton contends that this motion was ambiguous because it contained additional language that could be interpreted to embrace Blount’s other jurisdictional defenses. Id. at 39-40. While this might be literally so, the “civil officer” issue was most clearly and prominently presented, and thus it is reasonable to surmise that those voting against the resolution were comfortable rejecting the view that senators are impeachable “civil officers.” (A caveat is that then, as now, some legislators may be more interested in the political and practical effect of their vote then in the legal rationale supporting it.)

The View of Treatise Writers

         Equally if not more important to the precedential status of the Blount case is that constitutional scholars of the early 19th century uniformly understood the case to have decided that senators are not impeachable “officers of the United States.” See Luther Stearns Cushing, Elements of the Law and Practice of Legislative Assemblies in the United States of America 985 & n. 1 (1856); 2 Joseph Story, Commentaries on the Constitution: With a Preliminary Review of the Constitutional History of the Colonies and States Before the Adoption of the Constitution 259 (1833); Thomas Sergeant, Constitutional Law 376 (1830); William Rawle, A View of the Constitution of the United States of America 184 (1829); St. George Tucker,Blackstone’s Commentaries: With Notes of Reference to the Constitution and Laws, of the Federal Government of the United States, and of the Commonwealth of Virginia App. 335 (1803). This consensus, including the most influential constitutional treatises of the time, is significant for two reasons. First, it shows a “widely-understood interpretation” of the Impeachment Clause, as required by the second prong of the constitutional liquidation test. Second, the treatises also tend to corroborate the conventional interpretation of the Blount case. Tucker’s treatise, for example, was published only a few years after the Senate verdict and most likely reflected direct or indirect information from participants in the proceedings. Although Rawle published his treatise more than a quarter century after the Blount trial, he was a prominent government attorney in the 1790s and even had a tangential role in the Blount case (he was one of the authors of a legal opinion prepared for President John Adams regarding Blount’s prospective impeachment). Finally, as Ben Cassady has pointed out to me, Story was an apprentice at the law firm of Samuel Sewall, one of the House managers, during the Blount trial and therefore would have been in a position to get direct information about the Senate’s decision. It seems unlikely that each of these noted lawyers would reach the same firm conclusion based solely on guesswork.

         Moreover, two of these authors, Tucker and Rawle, explicitly disagreed with what they believed to be the Senate’s reasoning in dismissing the impeachment. It is difficult to see why they would have ascribed this reasoning to the Senate unless they were confident about it. It also seems unlikely that no one would have contradicted this “conventional wisdom” if it were not accurate. After all, at the time Tucker published his treatise in 1803, the impeachment was a relatively recent event and at least some of the participants in the case were surely aware of the relevant passages of his treatise.

Historical Practice

         The widespread understanding of the Blount’s case’s meaning is most powerfully demonstrated by the fact that in the succeeding two and a quarter centuries there has never been another impeachment of a senator or representative. Thus, the conventional view of the Blount case resulted in an unbroken pattern of behavior in which the relevant government actors (i.e.,members of Congress) did not use, or even attempt to use, the impeachment power to address misconduct by their colleagues. Like the Decision of 1789 (but more so), this type of deliberate practice demonstrates a lasting settlement satisfying the third prong of the constitutional liquidation test.

         Melton, however, contends that this practice reflects (or might reflect) mere happenstance. Although he acknowledges that no senator has been impeached since Blount, he argues that little can be inferred from this fact because the total number of impeachments of all kinds is so low. Melton, 33 Quinnipiac L. Rev. at 42. Furthermore, he suggests that the frequency of federal impeachments has declined even as the size of government has expanded, making the effective rate of impeachment even lower relative to the extremely partisan early years of the Republic when Blount was impeached. See id. at 45 (“In light of these trends, to say that only one Senator has been impeached is to say little, if anything, about whether Senators can be impeached.”) (emphasis in original).

         Melton’s analysis is questionable even if one looks only at actual impeachments. Since the Blount impeachment there have been a total of 21 additional impeachments (15 judicial, four presidential, and two of cabinet officers). There have been no impeachments of senators or representatives. Considering that there have been more than twice as many individuals who have served in Congress (about 13,000 by my rough calculation) than in the judiciary, presidency, vice-presidency, and cabinet combined (maybe 5,000 at most), this seems like more than a coincidence.

         The point becomes even clearer, though, when one considers impeachment resolutions or proceedings that do not result in an actual impeachment. These are many times more frequent than impeachments. For example, while only 15 judges have actually been impeached, the Congressional Research Service reports that 98 have been the subject of impeachment resolutions. CRS, The Impeachment Process in the House of Representatives, R45769, 2 n.8 (Jan. 25, 2024). Although only three presidents have been impeached (one of whom managed to be impeached twice), at least 12 have faced some type of impeachment proceeding in the House.

         Similarly, while only two cabinet officials have actually been impeached, many more have been the subject of impeachment efforts. This Wikipedia page details impeachment resolutions that have been filed against dozens of cabinet and other executive branch officers. Just in the last decade or so, impeachment resolutions have been filed against three Attorneys General (Merrick Garland, William Barr and Eric Holder), a Deputy Attorney General (Rod Rosenstein), an EPA Administrator (Gina McCarthy), an IRS Commissioner (John Koskinen) and a Secretary of Homeland Security (Alejandro Mayorkas), the latter who was actually impeached. Even vice presidents (who are hardly worth the effort) have faced impeachment efforts. Two resolutions have been introduced to impeach Vice President Kamala Harris alone (one sponsored and the other co-sponsored by Representative Lauren Boebert).

         It follows, therefore, that there must be some explanation other than chance for the fact that no senators or representatives (as far as I have discovered) have been the target of impeachment resolutions or proceedings since 1799.

         Perhaps it is because their conduct has been consistently above reproach? Don’t make me laugh. Or better yet, don’t make famed congressional lawyer George Hoar laugh. During the 1876 impeachment of William Belknap, the former Secretary of War, Hoar served as a House manager. Responding to arguments by Belknap’s defense that the Blount case was precedent for the proposition that former officers were not subject to impeachment, Hoar objected that this interpretation would undermine the well-settled understanding of the Blount case as deciding that members of Congress are not impeachable:

Of the soundness of the decision in the Blount case no question as far as I can remember has been raised since. That the members of either House of Congress should be impeachable by or before the other, or that an officer whose duties are legislative should be called into question elsewhere for official acts, could never be tolerated and is repugnant to the nature of the office itself. Would Blount have been impeachable if he had staid in office? Does the learned counsel maintain that? There has been no attempt to do it. Although I am sorry to say that there have been cases enough of official misconduct, no attempt has been made to impeach a Senator or Representative from that day to the present.

Proceedings of the Senate Sitting for the Trial of William W. Belknap, Late Secretary of War, on the Articles of Impeachment Exhibited by the House of Representatives59 (1876) (Rep. Hoar) (emphasis added).

         Hoar thus not only states the conventional view of the Blount case but he avers, apparently without contradiction, that there had been no attempt to impeach any senator or representative in the intervening 77 years, reflecting a deliberate practice that relied upon the conventional interpretation. Essentially Hoar is saying to the senators that they should disregard Belknap’s position because it implicitly relies on an interpretation of the Blount case that they all understand to be wrong.

         While Melton acknowledges that a majority of the Senate rejected Belknap’s “former officer” defense, 33 Quinnipiac L. Rev. at 38 n. 17, he neither cites nor responds to Hoar’s argument. Did Belknap’s counsel in fact contend that senators were impeachable or deny that the Blount case found to the contrary? Could counsel identify any instance in which an attempt was made to impeach a senator or representative between the Blount and Belknap trials? In the (apparently plentiful) cases of official misconduct by members of Congress, did anyone suggest that impeachment was an option?

         Fortunately, we need not rely solely on circumstantial evidence to draw the connection between the Blount case and the fact that impeachment has not been used against members of Congress in the past 225 years. Ben Cassady has identified an early post-Blount precedent that directly illuminates the connection:

Less than a decade after the Blount trial, the Senate again had to consider disciplining a wayward senator for alleged disloyalty.  This time, it was Senator John Smith from Ohio, who was accused of conspiring with Aaron Burr. Before the Senate could take action against Smith, though, Burr was acquitted of treason in a jury trial, and a prosecutor dismissed the criminal charges against Senator Smith himself. Nevertheless, the Senate established a committee on November 27, 1807, to write a report on whether Smith should be expelled.  (Annals of Congress at 39-42, Entry of November 27, 1807).  Chairing that Committee was John Quincy Adams.  Critically, one of the members of the Committee was Senator Joseph Anderson of Tennessee.  Anderson took Blount’s seat after Blount was expelled, and he was a member of the Senate when it reached the mystery verdict declining to convict Blount.

A month later, on December 31, 1807, the Committee issued a report (with no noted dissents) recommending expulsion.  In that report, the Committee discussed the critical role that expulsion plays in keeping a legislative body pure:

“The spirit of the constitution is, perhaps, in no respect more remarkable than in the solicitude which it has manifested to secure the purity of the Legislature by that of the elements of its composition. [He then discusses how qualifications of age, residency, and citizenship, as well as the Incompatibility Clause, secure good legislative behavior.]. Yet, in the midst of all this anxious providence of legislative virtue, it has not authorized the constituent body to recall in any case its Representative. It has not subjected him to removal by impeachment….”  Annals of Congress at 58 (December 31, 1087).

Later, during the expulsion arguments, Adams directly stated that this—Senators are not impeachable civil officers—was the lesson of Blount (Annals of Congress at 238, April 8, 1808).  He responded to Smith’s arguments that the Senate’s expulsion power was limited to offenses committed in the legislative chamber:

“There is no such limitation in the letter of the Constitution; there is none such in its spirit; and to introduce such a limitation would involve us in the absurdity . . . that a man might be convicted of the most infamous crimes that can disgrace the human character, and unless their punishment be capital, would be entitled perhaps for years to hold his seat in the Supreme Councils of the nation.  This consequence is inevitable; for his constituents cannot recall him; and it has been determined upon the fullest determination, and by a solemn decision, that a member of the Senate is not liable to the process of impeachment.”

Importantly, Senator Anderson—who was one of the Senator-jurors in the Blount impeachment trial—was on the Committee; voiced no dissent; and did not object to Adams’s characterization of Blount’s holding on the Senate floor. To the contrary:  he stood behind the Committee’s recommendation and urged expulsion in his floor speech.  (Annals of Congress 302, 308.)

Senator Hillhouse was another one of the Blount jurors who was still serving in the Senate during Smith’s trial.  He vociferously took the Adams Report to task:  “of the many erroneous principles contained in that report, there is but one of which I shall think it necessary particularly to notice.”  (Annals of Congress at 266).  And he expressly disagreed with Adams’s description of certain aspects of what happened in Blount. Specifically, he said the report “misapprehended” and “entirely misstated” the facts.  He elaborated that in Blount “I was an actor in the scene, being then a Senator and have a perfect recollection of the facts, and know the statement to be wholly erroneous.”  (Annals of Congress at 268). But the misrepresentation related to how Adams characterized the Senate’s treatment of an evidentiary issue in Blount as well as how it recounted the history of its expulsion decision.  He never once disagreed with the Report’s statement, or Adams’s assertion on the floor, about what Blount held:  that senators are not impeachable.

Not only that, but one of Smith’s defense attorneys was Robert Goodloe Harper—one of the House managers in Blount who argued in favor of Blount’s impeachment but lost.  One presumes he would have corrected Adams’s report or floor statement if he thought Adams’s account of the Blount verdict was inaccurate.  (I don’t think it’s a stretch to say that individual senators probably informed their colleagues in the House why their efforts to impeach Blount had failed—similar to jurors sticking around to explain the logic behind their verdict to the parties). Indeed, Harper addressed Blount for other reasons in his floor speech.  (Annals of Congress at 208-09, April 6, 1808). Nowhere did he suggest Adams misstated Blount’s holding.

[Note: the cites are to the 17th volume of the Annals of Congress and the bolded portions are Cassady’s emphasis].

         As Cassady notes, the Smith case provides further evidence that the conventional interpretation of the Blount case is correct. Collectively this evidence is strong, but circumstantial. We can say that the predominant issue at the Blount trial was whether a senator was an impeachable civil officer, that there is no evidence that anyone voted to dismiss for any other reason, that the contemporaneous understanding was that the impeachment was dismissed based on the civil officer issue, that participants and others with access to inside information implicitly corroborated this understanding, and that no one disputed it. Professor Lederman’s claim [see footnote 4 of this blog post] that “there’s no basis for believing that at least three” senators who voted to dismiss the Blount impeachment did not do so for reasons other than the “civil officer” issue is therefore inaccurate and overstated. However, it is impossible to definitively disprove that some number of senators voted to dismiss for other reasons (or no reason) and chose to keep this information to themselves. (This is also true, I would contend, for virtually any other congressional precedent).

         On the other hand, the evidence is overwhelming that the conventional interpretation represented a consistent, longstanding, and widespread understanding that resulted in a deliberate practice of not subjecting senators and representatives to impeachment. The Smith case shows that as early as 1807 Congress believed that the impeachment of senators was foreclosed by the decision in the Blount case, and all of the evidence demonstrates that this view has prevailed ever since.

          Indeed, it is not clear if Melton himself really disputes this. After all, he says that “[f]or the better part of two hundred years, scholars have erroneously and repeatedly claimed that the Blount Senate declared that [sic] Senators not to be impeachable.” 33 Quinnipiac L. Rev. at 53. Moreover, he acknowledges that the current congressional manuals of both the House and Senate, as well as the relevant CRS report, still reflect the conventional interpretation of the Blount case. Melton, 33 Quinnipiac L. Rev. at 35 n.9. Nor is this a recent phenomenon; it goes back to the earliest publication of congressional precedents. See, e.g., 3 Asher C. Hinds, Hinds’ Precedents of the House of Representatives of the United States Including References to Provisions of the Constitution, the Laws, and Decisions of the United States Senate 307 n.1 (1907) (“A Senator is not a ‘civil officer’”) (citing to discussion of Blount case). It should hardly be a surprise, therefore that members of the House and Senate believe or assume that senators and representatives are not impeachable.

         There is no other way to explain, for example, the fact that no impeachment resolution has been filed against Senator Robert Menendez, who is accused of Blount-level misconduct. Menendez is on his second federal corruption trial, one in which he is alleged to have accepted money, gold bars, and a Mercedes-Benz convertible in exchange for using his position as chair of the Senate Foreign Relations Committee on behalf of foreign interests. He is deeply unpopular with his constituents and has lost the support of most of his Senate colleagues. Moreover, the notoriously slow Senate Ethics Committee is unlikely to take any action against him for the remainder of his term. If senators were impeachable, it would be a no-brainer for some enterprising member of the House (Rep. Boehbert, for example) to score some political points by at least filing an impeachment resolution. The only thing preventing that from happening is the longstanding conventional interpretation of the Blount case.


         It should be noted that the above does not attempt to resolve whether the result in the Blount case, assuming it was based on the finding that senators are not impeachable “civil officers of the United States,” was the correct one. I tend to think that it was because constitutional text and structure point strongly in that direction. On the other hand, Melton and Mikhail amass considerable evidence that the original intent and expectation was that senators (but perhaps not representatives) would be impeachable. And there are consequentialist considerations on both sides of the argument.

         The point of congressional precedent/constitutional liquidation, however, is to enable the settlement of ambiguous or indeterminate constitutional questions. My objective above is to show that the Blount case and the interpretation/practice that followed it did just that. Thus, while we could spend the next 225 years arguing about whether members of Congress are impeachable, thanks to Senator Blount we do not have to.


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