Some Legal Questions About the Second Trump Impeachment Trial

The second impeachment of Donald Trump raises some significant legal issues, which I sketch out below. All I can say is that we could have avoided a lot of trouble if anyone ever listened to me.

Can the Senate Try a Former President? This is, of course, the most fundamental question. While Trump was president when the House impeached him (and still is for a few more hours), his term will have ended by the time the Senate trial begins. Trump and his supporters (as well as some legal scholars) argue that this precludes further proceedings because impeachment applies only to “[t]he President, Vice President and all civil Officers of the United States,” and Trump will no longer be any of these on January 20. Other legal scholars, such as Professors Keith Whittington and Steve Vladeck,  argue that the constitutional text does not expressly limit impeachment to current officeholders and the constitutional purpose, structure, history and precedent support “late impeachments,” that is, impeachments and/or trials of former officeholders for high crimes and misdemeanors relating to their time in office.

In the heat of the current moment it may be difficult to reach an objective answer to this question, which has long been debated in Congress and the legal academy. So it is helpful to review the past scholarship on this issue, which was written at a time when there were no immediate political stakes involved. CRS has a good summary of the arguments on both sides and notes that “[a]lthough the text is open to debate, it appears that most scholars who have closely examined the question have concluded that Congress has authority to extend the impeachment process to officials who are no longer in office.” Similarly, Professor Gerhardt has noted a “surprising consensus” among legal experts “that resignation does not necessarily preclude impeachment and disqualification.” Michael J. Gerhardt, The Federal Impeachment Process: A Constitutional and Historical Analysis 79 (1996). Professor Kalt’s 2001 article, likely the most comprehensive treatment of this subject, finds that while “late impeachability is a close and unsettled question,” the better view is that “Congress can pursue late impeachments, based on analysis of the text, structure, historical underpinnings, and precedents of the Constitution’s impeachment provisions.” Brian C. Kalt, The Constitutional Case for the Impeachability of Former Federal Officials: An Analysis of the Law, History, and Practice of Late Impeachment, at 3 (Oct. 24, 2001). And for what it’s worth I tend to agree. See Could Congress Impeach Judge Bybee?Point of Order (Apr. 20, 2009) (“Although it is seldom worth Congress’s while to conduct an impeachment trial for a former official, this is a matter of prudence, not constitutional power.”).

It should be noted here that the facts of the current situation seem like they were dreamed up as a hypothetical to support late impeachments. Trump did not commit (or at least complete) the alleged impeachable offense until January 6, when there were barely two weeks remaining in his term. It would have been virtually impossible to impeach and convict within this time frame. Even if the trial had commenced while Trump was still president, it would be extremely difficult to complete before noon on January 20. Attempting to compress the trial within the available time would mean short changing the House managers and/or the defense in terms of presenting their cases, and would give the defense an incentive to delay as much as possible in order to run out the clock. It seems borderline absurd to read the Constitution as imposing such artificial limitations on a trial of the gravity and consequence described by Alexander Hamilton in Federalist No. 65, which can subject the offender “to a perpetual ostracism from the esteem and confidence, and honours and emoluments of his country.”

Furthermore, if there were ever presidential conduct which warranted the imposition of the constitutional penalty of disqualification from future office, it is that with which Trump is charged. Professor Chafetz has argued that the paradigmatic case of impeachable conduct is an effort to illegally use presidential power to entrench oneself in office. See Josh Chafetz, Impeachment and Assassination, 95 Minn. L. Rev. 347, 422 (2010). Trump’s (alleged) effort to overturn the election results by falsely claiming fraud, pressuring state election officials to change the results, and inciting a violent mob to disrupt the electoral vote count in Congress goes far beyond anything any president has been accused of in this regard. Yet under the anti-late impeachment theory, there would be no way of disqualifying a president who engaged in such behavior as a last-ditch effort to hold on to power. Trump would be free to seek the presidency in the future and use exactly the same tactics again. To interpret the Constitution to require this result makes very little sense.

Who Presides at the Impeachment Trial of a Former President?  The Constitution provides that “[w]hen the President is tried, the Chief Justice shall preside.” Does this requirement apply to the trial of a former president?

Professor Baude has a good analysis of this issue here. He points out that the last time there was an impeachment trial of a former official (ex-Secretary of War William Belknap in 1876) two arguments were made in favor of late impeachments. One is what we just discussed, namely that impeachable officials remain subject to impeachment and disqualification even after they leave office so long as the offense “relates back” to the office they held. The other is that anyone could be impeached, and that the Constitution’s reference to impeachable officials is only for the purpose of prescribing a particular punishment (removal) that must be imposed in such cases.

If the latter were correct, then presumably Trump could be impeached in his capacity as a private citizen and there would be no need for the chief justice to preside. However, the “relating back” theory is a far stronger argument and the basis of all of the scholarship discussed above. This does not necessarily mean that the chief justice must preside, but it tends to support that conclusion. The issue is murky, but in my view the appropriate course would be to ask the chief justice to preside.

From the standpoint of the House managers, this raises something of a tactical dilemma. If the chief justice does not preside, it creates the risk that Trump could later attack the verdict as improper or use the chief justice’s absence as evidence that the “relating back” theory is wrong. On the other hand, if the chief justice is asked to preside, there is some risk that he would decline (see below), which would undermine the House’s position. It might therefore be in the interest of the House managers not to request that the chief justice preside but also not object if the defense makes this request. That way if Trump does not object to a different presiding officer (whether it be the vice president or the president pro team), it will be difficult for him to attack the process at a later date.

Who Decides Who Presides? If the Senate decides, either on its own or at the request of one of the parties, to request the chief justice’s presence, is the chief justice obligated to preside? It seems to me that the answer is no. If the Constitution does not (in his view) require him to preside at the trial of a former president, it seems to me that Chief Justice Roberts would be within his rights to decline. He might believe that it is improper or unconstitutional for the chief justice to preside over an impeachment trial except in the specific instance (the trial of a sitting president) specified by the Constitution.

It is certainly possible that Roberts would not raise this issue sua sponte, but would only address it if one of the parties objected. It is also possible that he would defer to the Senate’s judgment on the matter even if one of the parties did object. It is not obvious to me, however, why the Senate’s judgment should control on an issue of what the chief justice’s responsibilities are.

It is unlikely, but not impossible, that Roberts could address the issue of whether a former official can be tried at all. In other words, he could decline to preside on the ground that a former official is not subject to impeachment, and therefore there is no trial at which he could constitutionally preside. It seems far more likely, however, that he would assume, without deciding, that a former official could be tried.

(In theory, Roberts could also decide to preside and then rule on a motion to dismiss for lack of jurisdiction. Based on how deferential to the Senate he was while presiding over Trump’s first impeachment trial, however, this seems even less likely.)

Can Trump Challenge the Trial in Court? It is extremely unlikely that Trump could convince any court to interfere with the Senate’s conduct of the trial while it is ongoing. Among other reasons, any attempt to sue or enjoin the Senate would be barred by the Speech or Debate Clause.

A different situation would be presented once Trump was convicted by the Senate. If Trump loses benefits (e.g., his pension), he could sue the United States or whatever official(s) are responsible for providing these benefits to former presidents. This was how former United States District Judge Walter Nixon challenged his impeachment (hat tip: Ira Goldman). Such a suit would not be barred by the Speech or Debate Clause.

Professor Vladeck argues, however, that judicial review of the Senate’s verdict would be precluded by the Supreme Court’s decision in Judge Nixon’s lawsuit, in which it held that his challenge to the procedures followed by the Senate in his impeachment trial constituted a nonjusticiable political question. Chief Justice Rehnquist’s opinion in that case emphasizes that the judiciary was intended to have no role in impeachments. See Nixon v. United States, 506 U.S. 224 (1993).

It is not at all clear, however, that the Nixon case governs the question whether former officeholders may be impeached or convicted. That is a straightforward legal question of the kind found to be justiciable in Powell v. McCormack, 395 U.S. 486 (1969), which held that the question of what “qualifications” were subject to the House’s power to judge the qualifications of its members was justiciable. Unlike the question of what constitutes a proper impeachment trial, which involves discretionary judgments lacking judicially discoverable and manageable standards, the issue of late impeachability presents a yes or no question susceptible of judicial resolution.

Would Trump’s Disqualification be Judicially Reviewable? Assuming that for some reason Trump did not or could not challenge the Senate’s verdict based on loss of pension or benefits, he could also seek to challenge his disqualification (assuming the Senate imposes disqualification) in court. Presumably such an issue would not be ripe for judicial review unless and until Trump sought to attain an office from which the disqualification purported to bar him.

Most likely, this would arise in the context of a 2024 presidential bid. If, for example, state officials refused to put Trump’s name on the ballot, either for the primary or general election, he could sue to obtain ballot access, arguing that his disqualification was invalid because the Senate lacked jurisdiction over him as a former president. This would present the same justiciability issue discussed above and, for the reasons indicated, I think the courts probably would review Trump’s claim on the merits.

In addition, Trump could argue that the Senate’s judgment of disqualification, even if valid, does not prevent him from holding the office of president because that office is not an “Office of honor, Trust or Profit under the United States” within the meaning of the Disqualification Clause. This, of course, is the Tillman/Blackman theory we have discussed many times (see, e.g., my last post) and it seems to me that proposition would be clearly justiciable since it merely involves interpreting the meaning of the constitutional disqualification that the Senate imposed.

It is, however, still very, very wrong.




Does Section 3 of the Fourteenth Amendment Apply to the Presidency?

It will come as no surprise to readers of this blog that Professors Tillman and Blackman have written a controversial piece about the current troubles in which, among other things, they reiterate their view that the Constitution’s Disqualification Clause does not bar an impeached, removed and disqualified official from the presidency because that office does not constitute an “Office of honor, Trust or Profit” within the meaning of Article I, § 3, cl. 7. See Blackman & Tillman, Can President Trump be Impeached and Removed on Grounds of Incitement (Jan. 8, 2021) (“The Senate has no power to disqualify a defendant from holding elected federal positions, such as the presidency.”) (emphasis in original).

I will not bore you by restating the reasons why I think this view is very, very wrong. You can read them ad nauseam by following the links in my most recent post on the subject.

The same issue arises, however, in regard to another constitutional provision which, as far as I recall, I have not addressed before. Specifically, section 3 of the Fourteenth Amendment (an obscure provision which is enjoying its moment in the sun) provides:

No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial office of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

(emphasis added).

I should state at the outset that I am extremely skeptical that President Trump’s behavior, as atrocious and impeachable as it may be, constitutes “insurrection or rebellion” or other conduct covered by this provision. Assuming for the sake of argument that it is, however, the italicized language raises two questions. First, is the president “an officer of the United States” subject to the bar of section 3 if he engages in the proscribed conduct? Second, is the presidency an “office, civil or military, under the United States” which a covered officer is barred from holding?

I assume that Tillman and Blackman would say no to both questions, although I am not entirely sure. Their argument is that the meaning of “officer of the United States” and office “under the United States” as used in the original Constitution applies only to appointed, not elected, offices and therefore excludes the presidency (and vice presidency). Whether they would say that this meaning was understood by anyone as of the time the Fourteenth Amendment was drafted is less clear. As I have pointed out, the view they ascribe (based on highly ambiguous historical practice) to a few members of the founding generation seems to have vanished without a trace by 1834 at the very latest.

It is interesting nonetheless that the only example I have found anyone actually expressing the Tillman/Blackman view (prior to Professor Tillman himself) comes in the debate over section 3 in the Senate on June 13, 1866. During the debate over the draft constitutional language, the following colloquy occurred:

Mr. Johnson. But this amendment does not go far enough. I suppose the framers of the amendment thought it was necessary to provide for such an exigency. I do not see but that any one of these gentlemen may be elected President or Vice President of the United States, and why did you omit to exclude them? I do not understand them to be excluded from the privilege of holding the two highest offices in the gift of the nation. No man is to be a Senator or Representative or an elector for President or Vice President–

39 Cong. Globe 2899 (1866) (emphasis added).

Here we have a U.S. senator suggesting that the disability imposed by section 3 would not exclude anyone from the “privilege of holding the two highest offices” in the land, even though it on its face applies to “any office, civil or military, under the United States.” Admittedly, its just one man’s opinion, but to my knowledge it is closer than anyone else (pre-Tillman) has ever come to expressly endorsing the Tillman/Blackman view of “office under the United States.”

Naturally a fierce debate ensued:

Mr. Morrill. Let me call the Senator’s attention to the words “or hold any office, civil or military, under the United States.”

Mr. Johnson. Perhaps I am wrong as to the exclusion from the Presidency; no doubt I am; but I was misled by noticing the specific exclusion in the case of Senators and Representatives.

39 Cong. Globe 2899 (1866).

Ok, “oops, I was wrong” might not qualify as a fierce debate, but it is as much of a debate as you will find anywhere on this issue between 1787 and 2008 or so. No doubt if the 39th Congress had any doubt that the language flagged by Senator Johnson was ambiguous, it would have been clarified. After all, there is no chance that the framers of the Fourteenth Amendment intended to prevent former rebels from serving as presidential electors but not as the president. Of course, the same can be said of the framers of the Constitution. Clearly it could not have been intended that a president be impeached, removed from office, and disqualified from serving in any federal office other than the presidency. Similarly, it could not have been intended that presidents be able to receive foreign emoluments or titles of nobility.

The question of whether the president or vice-president is an “officer of the United States” within the meaning of section 3 is somewhat closer. As was pointed out during the same Senate debate, section 3’s language regarding the individuals whose violation of oath triggers the disability tracks the Constitution’s Oath Clause in Article VI, which requires that “all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution.”

There is a plausible structural argument that the term “officer of the United States” as used in Article II refers to individuals appointed and commissioned by the president, which would exclude the vice president and the president himself. Whether or not this is correct, it does not follow that the phrase used elsewhere in the Constitution is necessarily so limited. For example, while it is true that the president’s oath is separately provided for in Article II, the vice president’s is not; therefore, interpreting Article VI’s reference to “executive . . . Officers . . . of the United States” as excluding the president and vice president would mean the nowhere in the Constitution is the vice president’s oath provided for, a result that Tillman finds a good deal more plausible that do I. And while Tillman’s view of the Oath Clause has some support from a 1974 OLC memorandum written (or at least signed) by Assistant Attorney General Antonin Scalia, as I explain here that memo’s reasoning leaves much to be desired.

It also seems unlikely that the framers of section 3 would have deliberately omitted the president and vice president from the list of officials prohibited from engaging in insurrection and rebellion, although this conclusion seems more reasonable if one assumes their focus was entirely on the immediate past rebellion rather than potential future ones. In short, the argument that the president is not an “officer of the United States” within the meaning of section 3 seems to me to be quite weak, but not as weak as the claim that he holds no “office under the United States” under section 3 or the Disqualification Clause.

Impeachment and Disqualification

The proposed articles of impeachment against President Trump call not only for his removal from office, but for his “disqualification to hold and enjoy any office of honor, trust, or profit under the United States.” No doubt the drafters of these articles assume such disqualification would prevent Trump from ever again serving as president. Readers of this blog, however, are aware that this is no longer an uncontested proposition (see here, here, here, here, here, here, and, most recently, here for a few of our prior discussions of this issue).

While I am aware that the president’s conviction and removal, much less disqualification, remain unlikely events, if he were to be disqualified it would be extremely important that there be as much clarity as possible on this issue. I have little doubt that should the Senate disqualify Trump from future office, he would not hesitate to seize upon the argument that the presidency does not constitute an “office of honor, trust, or profit under the United States” within the meaning of the Disqualification Clause. Moreover, members of the House who will vote on articles of impeachment and members of the Senate who will presumably vote on conviction and removal, and possibly on disqualification as well, are entitled to know of the existence of this issue.

I therefore propose that before voting on articles of impeachment, the House consider and approve a resolution along the following lines: “Resolved, That in the considered judgment of this House, the Office of President of the United States of America is an Office of honor, Trust or Profit under the United States within the meaning of the Sixth Clause of the Third Section of the First Article of the Constitution of the United States.”

More from Professor Tillman on Cruz and Clinton

Professor Tillman responds to separate comments by Professor Rick Hasen and me (for the latter see my prior post) regarding legal issues that might affect the candidacies of Senator Cruz and former Senator Clinton.

Tillman notes that there is a conflict between two principles here: “one, protecting the democratic process from wrongful manipulation by prosecutors and courts, and two, the rule of law, applying the criminal law without fear or favor to all, even against those who are politically connected.” (In Cruz’s case, the issue does not involve criminal law, but there is a similar tension. On the one hand, it might seem desirable to have an authoritative decision on his eligibility while, on the other, there is a significant risk that his candidacy could be unfairly disrupted by lawsuits, decisions of various courts and actions by boards of election.)

Tillman agrees with me that this conflict presents a problem to which there is no easy solution. He does not believe, however, that my somewhat casual suggestion that the voters be allowed to make the decision except in cases where there “is no reasonable dispute” represents an adequate solution to the problem. Given the limited effort I put into designing this “solution,” I am sure he is right.





Hey, Did You Hear Ted Cruz Was Born in Canada?

Or maybe he was born in New York, and faked his birth certificate to hide the shame. I’m just saying.

Anyway, Professor Seth Barrett Tillman has a new post which compares the amount of attention given to the question of whether Senator Cruz is a “natural born Citizen” within the meaning of Article II, section 2, cl. 5, of the Constitution (a lot) with that given to certain legal issues surrounding a potential indictment of former Senator/Secretary Hillary Clinton (not much). Personally, I can think of a number of reasons for this disparity, the most obvious of which is that the citizenship issue has been publicly and repeatedly raised by another presidential candidate (I forget his name). If Senator Sanders, for example, were to raise one of Tillman’s legal issues in a debate with Clinton, I bet the legal commentariat would be racing to the blogs to express their views.

Be that as it may, I think we should be leery of prosecutors or courts inserting themselves into a presidential election, whether it involves Cruz or Clinton. Unless the legal issue is one that is beyond any reasonable dispute, the risk of politically motivated actors using lawsuits or prosecutions to disqualify candidates seems too high. As Professor Tillman has remarked in a different blog post focusing on the citizenship issue, “ties should go to the runner,” i.e., close questions should be resolved by letting the voters decide.

Professor Seth Barrett Tillman: Hillary Can Run from Jail

(see update below) More precisely, Tillman argues here that any attempt to disqualify former Secretary Clinton from the presidency based on conviction of a crime, including 18 U.S.C. § 2701 (which provides that anyone convicted “shall forfeit his office and be disqualified from holding any office under the United States”), would be unconstitutional. FWIW, I think he is right.

Now if Clinton were to be elected to the presidency while actually serving time in prison, a different set of issues would be presented. But I think we can cross that bridge when we come to it.

(Clarification: Tillman does not believe that section 2701’s disqualification language is unconstitutional, but he believes it would be unconstitutional if it were intended to apply to the presidency and other elected positions. In part for this reason, he would interpret the “office under the United States” language as not applying to elected positions).

Update: former Attorney General Mukasey, to whom Tillman was in part responding, has emailed Professor Eugene Volokh to acknowledge “on reflection, … Professor Tillman’s [analysis] is spot on, and mine was mistaken…. The disqualification provision in Section 2071 may be a measure of how seriously Congress took the violation in question, and how seriously we should take it, but that’s all it is.” 

Quinnipiac Law Review Symposium on the Disqualification Clause

A forthcoming issue of the Quinnipiac Law Review features four articles responding to Benjamin Cassady’s “You’ve Got Your Crook, I’ve Got Mine”: Why the Disqualification Clause Doesn’t (Always) Disqualify, 32 Quinnipiac L. Rev. 209 (2014). The editors were kind enough to ask me to write the foreword, which you can find here. It’s extremely hilarious and entertaining. (Not really).

The articles by Peter Charles Hoffer, Brian C. Kalt, Buckner F. Melton, Jr. and Seth Barrett Tillman are well worth reading.

House of Cads: Legislators and the Disqualification Clause

So I have now read Benjamin Cassady’s “You’ve Got Your Crook, I’ve Got Mine,” 32 Quinnipiac L. Rev. 209 (2014), to which Professor Tillman’s article responds. Cassady makes the case that the Constitution’s Impeachment and Disqualification Clauses do not apply to federal legislators. Much of the article is devoted to explaining why this result makes sense as a policy matter: basically that a crooked legislator is not as dangerous as a crooked judge or executive official and that voters should be able to “pardon” a crooked legislator by returning her to office with full knowledge of her misdeeds.

Cassady discusses at some length the famous case of John Wilkes, a radical and controversial member of Parliament who was expelled multiple times by the House of Commons for libelous comments but continually re-elected by his constituents. He argues that the fall-out from this case ultimately led to the recognition of an “electoral pardon” principle in the United States, pursuant to which it is improper for a legislator to be expelled (or not seated) based on conduct known to her constituents at the time they elect her.

I think Cassady is correct in his interpretation of the Impeachment and Disqualification Clauses. He may or may not be right that the “electoral pardon” principle explains why the Constitution treats legislators differently in this regard than executive or judicial officers. I am not sure myself that this distinction, particularly with regard to disqualification, makes that much sense from a policy standpoint. One might argue that there is no more reason to disqualify an impeached official from a future appointment to an executive or judicial office than from a future election to a congressional seat. After all, if the “voters” (who, in the case of senators, would originally have been the members of the state legislature) can “pardon” a candidate for a congressional seat, why shouldn’t the president and the Senate be permitted to “pardon” a nominee to an executive or judicial office?

Continue reading “House of Cads: Legislators and the Disqualification Clause”