Pardons, Self-Pardons and Impeachment (Part III)

The case against President Trump’s exercise of the pardon power to date may be summarized as follows. Trump’s statements and actions have demonstrated (1) a complete disinterest in the official pardon process; (2) a willingness to grant pardons based on a one-sided process in which no contrary information or view is solicited or considered; (3) the granting of pardons seemingly on the basis of partiality toward political allies and/or hostility toward prosecutors he deems to be adversaries; (4) repeated expressions of authority and/or inclination to grant pardons to individuals involved in investigations in which he is personally implicated, most particularly the inquiry by special counsel Robert Mueller into Russian activities in the 2016 election; and (5) open hostility toward the special counsel, DOJ and FBI with respect to such investigations, which further signals to witnesses and targets that he may use his pardon and other powers to stop inquiry and prevent detection of wrongdoing. In addition to the foregoing, which is largely based on the public record, there is evidence (albeit controverted) that Trump personally tried to shelter a former aide (General Michael Flynn) from investigation and that his legal team discussed possible pardons with lawyers for Flynn and former campaign manager Paul Manafort.

As I will explain in some detail, these facts are more than sufficient to justify the opening of an impeachment inquiry by the House of Representatives. Failure to do so is to invite further and more serious abuses of the pardon power in the future.

Today I will cover the president’s exercise of the pardon power to date.

The Perils of a One-Sided Process

The former pardon attorney, Margaret Colgate Love, has offered a qualified defense of President Trump’s pardons as a substantive matter, arguing that “[h]is grants to date, at least as he explains them, represent a classic and justifiable use of the pardon power to draw attention to injustice and inefficiency in the law.” However, she notes that Trump appears to be ignoring entirely the official process for receiving pardon applications and recommendations from the Office of the Pardon Attorney in DOJ. Instead, “Trump appears to be relying exclusively on random, unofficial sources of information and advice to select the lucky beneficiaries of his official mercy.”

As noted in prior posts, there is no constitutional or legal obligation to follow the DOJ process, or any process at all. Moreover, some have argued that the official process has unwisely and inappropriately constricted the exercise of the pardon power. See Paul Rosenzweig, Reflections on the Atrophying Pardon Power, 102 J. Crim. L. & Criminology 593, 606 (2012) (“the advent of a pardon attorney has institutionalized the hostility of prosecutors to the exercise of the pardon power”).

Nevertheless, there are serious risks involved in circumventing the established process for considering clemency. It significantly increases the potential for favoritism and unfairness in the granting of pardons, as well as for public perception of the same. The last days of the Clinton administration, likened by one observer to a “Middle Eastern bazaar” of pardon lobbying by Clinton friends, family, and other well-connected individuals, are a good illustration of the problem. SeeAlbert W. Alschuler, Bill Clinton’s Parting Pardon Party, 100 J. Crim. L. & Criminology 1131, 1136 (2010). As former Clinton White House Counsel Beth Nolan testified, pardon requests “were coming from everywhere,” including from politicians and celebrities. See id. 

Viewed in the most charitable light, this deluge of pardon requests overwhelmed the system and prevented President Clinton from getting accurate information or objective advice about requests brought to him by various interested parties with access to the White House. See H.R. Rep. No. 107-454, vol. 3, at 3294-95 (2002) (Minority Views of Members of the House Comm. on Gov. Reform) (“Under these circumstances, and working against the clock, the White House and Justice Department officials responsible for assisting the President could not and did not conduct appropriate review of every petition.”). As a result, Clinton made a series of highly questionable grants of clemency in the final hours of his presidency, most notoriously the pardons of wealthy fugitives Marc Rich and Pincus Green. See id. at 3295 (“The Marc Rich pardon was .  . . the product of a rushed and one-sided process, and it reflected deeply flawed judgment by the President.”). Note that these are the views of Clinton’s political allies in Congress.

Viewed more skeptically, the one-sided nature of the Clinton pardon process was a feature, not a bug, designed to enable Clinton to grant clemency as favors to family members, political cronies and wealthy donors. See H.R. Rep. No. 107-454, vol. 1, at 28-29 (2002) (House Comm. on Gov. Reform) (“In his rush to grant pardons and commutations in the waning hours of his presidency, Bill Clinton ignored almost every applicable standard governing the exercise of the clemency power.”). This resulted in pardon grants that were at best motivated by blatant favoritism and at worst actually corrupt. See id. at 27 (noting that pardons of Rich and Green “raised substantial questions of direct corruption,” while other cases “involved indirect corruption, where close relatives of the President—namely Roger Clinton, Hugh Rodham, and Tony Rodham—apparently traded on their relationships with the President to lobby for pardons and commutations.”); see also Alschuler, 100 J. Crim. L & Criminology at 1137-60, 1168 (reviewing Clinton’s most controversial pardons).

In either event, the Clinton pardons illustrate the perils of granting clemency based on a one-sided process and/or without adequate (or any) deliberation. Trump’s reliance on “random, unofficial sources of information” (including celebrities like Kim Kardashian and Sylvester Stallone) poses similar risks.

These risks may be even greater because Trump has built his pardon “back door” so early in his presidency. Clinton and other presidents issued their most controversial pardons at the very end of their administrations. While this is bad from the standpoint of electoral accountability, it also limits the damage because, once out of office, the (former) president can issue no more pardons. If, on the other hand, potential pardon seekers believe the current president is willing to use his power to reward friends and allies, they have an incentive to seek his favor in the hope of receiving clemency. This is a particular issue for those who have reason to believe (as will be discussed later) the president may be willing to shelter them from justice.

Trump’s Controversial Pardons

Notwithstanding Love’s benign take, several of Trump’s pardons have been controversial on the merits. Here we must be careful because there are no constitutional standards for granting pardons, and therefore no pardon is “wrong” or improper as a constitutional matter. Criticism, however well-founded, of the merits of a particular pardon is in itself simply a political or policy disagreement, not a legitimate basis for impeachment.

Nonetheless, the merits of a pardon decision may still be relevant to whether there has been an impeachable abuse of the pardon power. A dramatic departure from traditional norms and standards, including the Justice Department’s criteria for evaluating pardon decisions, may suggest that a pardon was motivated by something other than the president’s sincere view of the merits. See generally H.R. Rep. 107-454, vol. 1, at 29-31 (describing DOJ standards for pardons). A pattern of questionable pardons given to friends or allies may suggest favoritism, corruption or some other improper motive. The granting of pardons without serious consideration of countervailing factors, such as their potential to undermine the administration of justice, may suggest recklessness and a breach of the duty to take care the laws be faithfully executed. Cf. id. at 35-37 (criticizing Clinton’s pardons as establishing “two standards of justice” and undermining “efforts of law enforcement officers everywhere”).

Of the five pardons and two commutations granted by President Trump to date, three stand out as problematic. The very first pardon, that of Joe Arpaio, was particularly controversial. Arpaio, an Arizona sheriff and close Trump ally, had been found guilty of contempt for defying a court order that prohibited him from arresting aliens not suspected of criminal activity. Trump pardoned Arpaio before the court had even imposed a sentence.

We put aside here policy and political disagreements over immigration and Arpaio’s treatment of and attitude toward immigrants. The Arpaio pardon is still troublesome for several reasons. First, contempt of court is a serious offense that impacts the functioning of an independent branch of government. Indeed, there was once a conflict of authority on whether criminal contempt could be pardoned at all, and in Ex Parte Grossman, 267 U.S. 87, 119 (1925), it was “urged that criminal contempts should not be held within the pardoning power because it will tend to destroy the independence of the judiciary, and violate the primary constitutional principle of a separation of the legislative, executive and judicial powers.” The Court, in an opinion by Chief Justice Taft, rejected that argument but noted that the hypothetical abuse of the pardon power to interfere with a court’s authority “would suggest a resort to impeachment.” Id. at 121.

Second, the Arpaio pardon was clearly inconsistent with Justice Department guidelines on making pardon recommendations. Among other things, those guidelines place a strong emphasis on acceptance of responsibility, remorse and post-conviction conduct evidencing rehabilitation. See H.R. Rep. No. 107-454, vol. 1, at 29. None of these was applicable in Arpaio’s case.

The guidelines also emphasize that for very serious offenses, such as those involving breach of public trust, “a suitable length of time should have elapsed in order to avoid denigrating the seriousness of the offense or undermining the deterrent effect of the conviction.” Id. Moreover, “[i]n the case of a prominent individual or notorious crime, the likely effect of a pardon on law enforcement interests or upon the general public should be taken into account.” Id. All  of these factors counsel against the pardon, prior to sentencing, of a prominent public official who openly flouted court orders. As Andrew McCarthy, who is often sympathetic to the president, observed at the time, the pardon put “Trump in the position of endorsing Arpaio’s misconduct—a law officer’s arrogant defiance of lawful court orders, which themselves were issued as a result of judicial findings that Arpaio discriminated against Latinos in conducting unlawful arrests.”

Furthermore, the timing of the pardon was not only contrary to DOJ guidelines, it was unnecessary and imprudent because Arpaio had more than one avenue of judicial relief still available. Noting “[t]here was no sensible reason to pardon Arpaio at this time,” McCarthy criticized the “decidedly unpresidential impulsiveness of the pardon.”

Finally, it hardly seems controversial to note that Arpaio’s pardon was “for the benefit of a political crony” and was not even ostensibly based on an impartial consideration of the merits. If there is any evidence to suggest Trump considered arguments against the grant of the pardon, such as its effects on the administration of justice, I am not aware of it. There is every reason to believe that Trump’s process was as one-sided as Clinton’s, if not more so.

Of course, Trump is not the first president to pardon a political ally or supporter. It is instructive, however, to compare how President George W. Bush approached an analogous situation. Bush faced enormous pressure from his own vice president, Richard Cheney, to grant a pardon to Scooter Libby, Cheney’s former chief of staff. Libby (who ironically made a cameo appearance in the Clinton pardon saga as one of Marc Rich’s lawyers) had been convicted of perjury and obstruction of a special counsel’s investigation into alleged misconduct by the Bush administration in the aftermath of the 2003 invasion of Iraq.

Like Arpaio, Libby was convicted of an offense against the administration of justice in connection with an investigation that his defenders, who were also the president’s allies, viewed as politicized and unfair. Bush, however, declined to pardon Libby, accepting the advice of White House counsel that Libby “hadn’t met the criteria: accepting responsibility for the crime, doing time and demonstrating remorse.” As one participant in the process explained: “Pardons tend to be for the repentant, not for those who think the system was politicized or they were unfairly targeted.”

Bush did agree to commute Libby’s sentence, but the statement he issued carefully weighed both sides of the controversy. It did not excuse Libby’s conduct or endorse claims that he had been targeted for political reasons. Bush was careful to express respect for the special counsel, his investigation and the jury verdict in Libby’s trial.

Bush’s commutation decision contrasts not only with the Arpaio pardon, but with another controversial pardon granted by Trump: that of Libby himself. On April 13, 2018, Trump granted Libby a full pardon, saying in an official statement: “I don’t know Mr. Libby, but for years I have heard he has been treated unfairly.”

Trump’s reference to unfairness contrasts with Bush’s approach and certainly can be construed as an aspersion on the special counsel investigation at issue. It may not be entirely coincidental that the special counsel who prosecuted Libby was appointed by then-deputy attorney general James Comey. And, as in Arpaio’s case, there is reason to question whether Trump gave consideration to both sides of the issue, or whether he listened only to those who thought Libby had been treated “unfairly.”

Trump’s third controversial pardon presents similar problems. On May 31, 2018, he pardoned Dinesh D’Souza, a well-known conservative commentator and author, who had pleaded guilty to straw donor campaign finance violations in 2014. According to a White House press release, the president believed D’Souza to be “a victim of selective prosecution,” and Trump himself tweeted that D’Souza “was treated very unfairly by our government!”

D’Souza’s defenders (who include McCarthy) argue that his offenses were minor and ordinarily would be treated as a civil matter; they ascribe his prosecution by the prior administration as retaliation for his strident criticism of President Obama. Perhaps this is true, but anyone seeking to make a fair evaluation of that claim would need to hear the perspective of the prosecution as well. Compare H.R. Rep. No. 107-454, vol. 1, at 32 (Rich and Green “maintained that they were ‘singled out’ and unfairly prosecuted”) with id. at 104 (“The White House never consulted with the prosecutors in the Southern District of New York regarding the Rich case.”). In the absence of evidence President Trump consulted prosecutors or anyone other than D’Souza’s supporters, there is at least a prima facie case that this pardon was also motivated by favoritism and/or hostility toward prosecutors in the Obama administration, particularly the then-U.S. attorney for the Southern District of New York, Preet Bharara, now an outspoken Trump critic.

Taken together, these three pardons (Arpaio, Libby and D’Souza) suggest a one-sided process, blatant favoritism, and an “unpresidential impulsiveness” inconsistent with the president’s duty of care. (There is no reason to believe that Trump intends to change his practices in this regard; to the contrary, he has publicly mused about additional clemency actions for Martha Stewart and former Illinois governor Rod Blagojevich.) Those concerns would serious enough, but they are dramatically heightened when one considers the president’s posture toward the investigation of Russia’s efforts to interfere in the 2016 presidential election. I will turn to that subject in my next post.

Pardons, Self-Pardons and Impeachment (Part II)

Following on my last post, we will now turn to the pardon power generally and what role Congress plays in checking abuses of that power.

The Pardon Power and Congressional Oversight

The power to pardon is, as Maddie McMahon and Jack Goldsmith note in a recent Lawfare post, “among the broadest of presidential powers.” The Supreme Court has stated:

The power thus conferred [by the Pardon Clause] is unlimited, with the exception stated [i.e., impeachment]. It extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken or during their pendency or after conviction and judgment. This power of the President is not subject to legislative control. Congress can neither limit the effect of his pardon nor exclude from its exercise any class of offenders. The benign prerogative of mercy reposed in him cannot be fettered by any legislative restrictions.

Ex parte Garland, 71 U.S. 333, 380 (1866); see also Schick v. Reed, 419 U.S. 256, 266 (1974) (pardon power “flows from the Constitution alone, not from any legislative enactments, and  . . . cannot be modified, abridged, or diminished by the Congress.”); United States v. Klein, 80 U.S. 128, 147 (1871) (“To the executive alone is intrusted the power of pardon; and it is granted without limit.”).

Not surprisingly, executive branch lawyers have been particularly forceful in applying this view to a number of issues surrounding the president’s exercise of the pardon power, resulting in what McMahon and Goldsmith term an “extraordinarily broad” interpretation of that power.

For example, the executive branch recognizes no congressional oversight authority with respect to pardons, either generally or in specific cases. Citing the line of Supreme Court authority noted above, the Office of Legal Counsel has opined that “the pardon power is different from many other presidential powers in that it is textually committed exclusively to the President.” Whether the President May Have Access to Grand Jury Material in the Course of Exercising His Authority to Grand Pardons, 24 Op. Off. Legal Counsel 366, 368 (Dec. 22, 2000). Thus, in finding that Congress was not entitled to information regarding President Clinton’s exercise of the pardon power, Attorney General Janet Reno advised that “Congress’ oversight authority does not extend to the process employed in connection with a particular clemency decision, to the materials generated or the discussions that took place as part of that process, or to the advice or views the President received in connection with a clemency decision.” Assertion of Executive Privilege With Respect to Clemency Decision, 23 Op. Off. Legal Counsel 1, 3-4 (Sept. 16, 1999).

This position might strike some as extreme (it so struck me, as I was advising the House committee seeking this information). While no one disputed the president’s unreviewable power to make the clemency decisions in question, one still might conclude the Congress may inquire as to whether congressionally funded resources, such as the Office of the Pardon Attorney, were being properly or effectively used.

The executive’s position, however, flows from its view that the pardon power is not merely unreviewable; it is subject to no objective standards whatsoever. See 24 Op. Off. Legal Counsel at 370 (“it is important to keep in mind that the factors bearing on the President’s decision to exercise his pardon power, as an act of mercy, are subjective and undefined.”). As the pardon attorney wrote to a senator in 1952: “In the exercise of his pardoning power, the President is amenable only to the dictates of his own conscience, unhampered and uncontrolled by any person or branch of Government.” See id. at 370-71. Under this view, the pardon power is truly an example of “l’etat c’est moi;” while a pardon may be criticized as unjust or ill-advised, it can never be illegal or unconstitutional.

The Pardon Power Contrasted with Impeachment

It may be useful to contrast the pardon power with another power the Constitution vests exclusively in one branch of government: the impeachment power. It is generally accepted that Congress has the exclusive and nonreviewable power to impeach and remove the president, the vice president or any civil officer of the United States. See generally Nixon v. United States, 506 U.S. 224 (1993). Thus, for example, whether the Senate has conducted a constitutionally adequate trial within the meaning of the Impeachment Trial Clause is a nonjusticiable political question. Id. at 236-38.

The finality and non-justiciability of Congress’s impeachment determinations, along with the significant discretion it exercises in determining what constitutes “high crimes and misdemeanors,” occasioned then-Representative Gerald Ford’s famous and much-criticized remark that “an impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history; conviction results from whatever offense or offenses two-thirds of the other body considers to be sufficiently serious to require removal of the accused from office. . . .” Some argue that this is an accurate description of how impeachment works. See Michael J. Gerhardt,The Federal Impeachment Process: A Constitutional and Historical Analysis 103 (1996) (“Ford’s observation captures the practical reality of impeachment . . . .”).

As a normative and legal matter, however, Ford was clearly wrong. The Constitution establishes a standard for impeachment and removal (“Treason, Bribery, or other high Crimes and Misdemeanors”), which is textually incompatible, as Professor Rob Natelson has recently observed, with unlimited discretion. The framers specifically rejected a broader formulation, which would have included “maladministration,” precisely on the ground that it would confer too much discretion on Congress and amount to the president holding office “during the pleasure of the Senate,” as James Madison put it. See Charles L. Black, Jr., Impeachment: A Handbook 27-33 (1974).

Thus, while Congress’s impeachment judgments are final, they are not necessarily correct or even defensible. Unlike pardons, specific impeachment decisions can be criticized as legally wrong and unconstitutional. Ford’s observation is therefore perhaps best understood as a parallel to Justice Robert Jackson’s remark about the Supreme Court: “We are not final because we are infallible, but we are infallible only because we are final.” In matters of impeachment, Congress is “infallible” only because it is final.

In addition to the constitutional standard, there are significant structural safeguards that limit Congress’s discretion in impeachment matters. First, the initial decision to impeach must be made by the House of Representatives. Even if one believes (reasonably enough) that members “care more” about politics than law, building a solid prima facie case that the constitutional standards have been met is a practical necessity for developing a political consensus in favor of impeachment. Members know they will be accountable to their constituents for a vote to impeach. If impeachment is successful, moreover, the case moves to the Senate, where House managers act as prosecutors in an adversarial proceeding before that body. This creates a strong incentive not to bring cases that are factually or legally weak with regard to whether the accused has committed high crimes or misdemeanors.

As Professor Gerhardt points out, the Constitution provides a number of safeguards “to ensure that Congress will deliberate carefully prior to making any judgments in an impeachment proceeding.” Gerhardt, The Federal Impeachment Process 110. In addition to the House’s role, already noted, in a bifurcated process, these include that the Senate must (1) sit as a court of impeachment “on Oath or Affirmation;” (2) reach a judgment only after conducting a trial; and (3) convict only on the concurrence of two-thirds. The judicial nature of the proceedings is emphasized further when the president is on trial because the chief justice presides. These safeguards help ensure that impeachments do no occur for mere maladministration or policy/political differences. Id. at 111.

In contrast, the pardon power is exercised by a single individual, subject to no constitutional standard, and not required to follow any process at all to ensure careful deliberation. It is not subject to ordinary congressional oversight. There is thus only one constitutional check on the abuse of the pardon power. That check is impeachment.  Continue reading “Pardons, Self-Pardons and Impeachment (Part II)”

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.

The Judicial Conference on Impeachment of a Former Judge

In this certification pursuant to the Judicial Conduct and Disability Act, the Judicial Conference “certifies to the House of Representatives its determination that consideration of impeachment of former United States District Court Judge Mark E. Fuller (M.D. Ala.) may be warranted.”

The Judicial Conference’s certification was based on findings that Judge Fuller had (a) repeatedly physically abused his wife, (b) lied under oath about his misconduct to the Special Committee to the Judicial Council of the Eleventh Circuit, and (c) “made false statements to the Chief Judge of the Eleventh Circuit in late September 2010 in a way that caused a massive disruption in the District Court’s operation and loss of public confidence in the Court as an instrument of justice.”

It is not surprising that these findings led to a referral to the House for possible impeachment proceedings, but it is noteworthy that the referral occurred even though former Judge Fuller had already resigned his office. As we have discussed before, whether a former officer is subject to impeachment remains an open constitutional question, but the certification of the Judicial Conference here adds to the weight of authority in support of an affirmative answer to that question. See M. Gerhardt, The Federal Impeachment Process 79 (1996) (noting “a surprising consensus among commentators that resignation does not necessarily preclude impeachment and disqualification”).

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.

In Case You Haven’t Had Enough of the Disqualification Clause Already

Professor Brian C. Kalt has posted this response to Benjamin Cassady’s article on the Impeachment and Disqualfication Clauses. (Hat tip- Seth Barrett Tillman. Apparently there is a whole symposium on this topic, and more articles will be forthcoming). I had to smile when I read Professor Kalt’s opening paragraphs:

Benjamin Cassady has put great effort into an arcane subject: When someone is impeached and convicted, and disqualified from any “office of honor, trust, or profit under the United States,” can that person be elected to Congress? I am one of a group of people who would discuss subjects like these endlessly, but for the fact that members of our group can be hard to find. As such, I am extremely grateful for the opportunity both to read Mr. Cassady’s article (referred to below as Your Crook) and to write this response.

This response will disagree with some things in Your Crook, and the discussion may get a bit animated. But this is the excited disagreement of a kindred spirit, not of a harsh critic. When football fans shout at each other about who was the greatest running back in NFL history, it is because they love football, and because they have more fun probing their disagreements than they would cataloguing their much-more-voluminous common ground. So too with the Disqualification Clause of the Constitution. I agree with Your Crook that disqualification does not apply to election to the House or Senate, and I agree that voters should have as free a hand as the Constitution will allow to elect representatives and senators that others in Congress might find scurrilous.

For what its worth, I pretty much agree with everything that Kalt has to say with regard to the application of the Disqualification Clause to the House and Senate. His claim that Barry Sanders is the greatest running back of all time, on the other hand . . .

 

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.”).

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