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?”

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”

Tillman on the Disqualification Clause

Professor Seth Barrett Tillman has posted this draft article on the Disqualification Clause of Article I, § 3, cl. 7, which provides that “Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States.” Long story short, Professor Tillman argues that an “Office of honor, Trust or Profit under the United States” extends exclusively to statutory or appointed offices and excludes elected positions such as President, Vice-President, Senator and Representative. Thus, under his theory if a president, vice-president or a civil officer of the United States is impeached, removed from office and disqualified, that individual remains eligible to serve in any of the aforementioned elected positions. Tillman cites a number of pieces of evidence which he believes support this conclusion (some of which we have discussed in prior posts), and he argues that it is consistent with the “democracy canon” that, all other things being equal, the people should be entitled to vote for whomever they please to represent them.

This particular issue may be of limited practical importance, unless you are planning to work on the Porteous 2016 campaign, but it is of some interest with respect to the methodology of constitutional interpretation as well as other constitutional provisions that apply to “officers of” or “offices under” the United States. Related discussions may be found here (“May the President Accept a Foreign Title of Nobility?”), here (“Tillman’s Puzzles for Amar (or Who You Callin ‘Atextual’?)”) and here (“Six Answers for Six Puzzles”).