Patterico's Pontifications

2/7/2021

Constitutional Vanguard: The Constitution Doesn’t Mean a Damned Thing to the So-Called “Constitutionalists”

Filed under: General — Patterico @ 2:25 pm

My latest Substack newsletter is out, and it addresses a very simple concept: you don’t get to call yourself a “constitutionalist” if you always read the Constitution in a way that is politically convenient for you. With the impeachment trial set to start next week, it does a deep dive into the arguments that the impeachment is unconstitutional because Trump is out of office. Here’s a sample:

“OK,” I can hear you say, “but doesn’t the person being impeached have to be in office at the time of conviction?” No, and any other result would create an absurd result that the Framers could not have intended: that an officeholder could simply avoid future disqualification by resigning moments before the vote to convict is held. Under this view, an impeached president whose conviction was imminent and certain could simply burst in through the wall of the Senate chamber, like the Kool-Aid Man, minutes before the vote of conviction, only instead of yelling “OH YEAHHH!” the president would yell “I RESIGN! OH YEAHHH!” And unlike Michael Scott “declaring” bankruptcy by yelling “I DECLARE BANKRUPTCY!” at the workers in his office, the president’s resignation probably could take effect that quickly. I don’t think the Founders meant to allow a president to escape disqualification so easily.

Also, I believe I have created the opportunity for you to become a paid subscriber. The benefits begin tonight. I think around 5 p.m. my time, I plan to send any new subscribers two emails. One will be my analysis of a likely upcoming ruling in a lawsuit filed by the Association of Deputy District Attorneys against one George Gascón. The ruling could come down as early as tomorrow, so you’ll be able to see right away just how good my predictive powers are.

In addition, I’ll be opening a thread for paid subscribers to talk about anything. It will be like the open threads here, except that people will ponying up for the chance to speak to other like-minded people. Over the years we have talked about the idea of setting up a more exclusive comment section, and this is probably the best way to do it. Something about having some skin in the game may make the interchanges more civil and meaningful. I’d love to see how it works out.

If you are already a paying subscriber to the blog (it’s possible, on the right sidebar), you are automatically on the paid subscriber list.

In general, I’ll probably be sending out emails to paid subscribers midweek, around Wednesday, with the free version continuing on Sundays. But please do consider a subscription. I think those posts are likely to be more thought-provoking and controversial.

Read the latest post here. Subscribe here.

Comments (34)

34 Responses to “Constitutional Vanguard: The Constitution Doesn’t Mean a Damned Thing to the So-Called “Constitutionalists””

OH YEAHHH!
Patterico (115b1f) — 2/7/2021 @ 2:26 pm
Speaking as a non-lawyer and non-scholar of the Constitution, there’s another consideration that favors a trial, and it’s the “sole power” clause, that the House has the sole power to impeach and that, upon receipt of the article(s), the Senate has the sole power to try the case. The Senate appropriately received its article and they will a hold trial, and there’s no court in the land with the authority to say it’s not Constitutional.
Paul Montagu (77c694) — 2/7/2021 @ 2:34 pm
I think you are right, Paul, and I touch on that in refuting Luttig’s piece.
Patterico (115b1f) — 2/7/2021 @ 2:35 pm
…a very simple concept: you don’t get to call yourself a “constitutionalist” if you always read the Constitution in a way that is politically convenient for you.

Yet impeachment itself is a political action, not a judicial act:

https://www.law.com/nationallawjournal/2019/12/10/impeachment-is-a-political-process-not-a-judicial-one/?slreturn=20210107175538

This one is a waste of taxpayer-funded time and resources. Yet another check mark against two entrenched political parties increasingly out of touch w/an electorate that no longer identifies w/either of them.
DCSCA (f4c5e5) — 2/7/2021 @ 3:02 pm
I think Super Bowl Sunday was a great day to release a lengthy legal analysis. Great job, Patterico!!
Patterico (115b1f) — 2/7/2021 @ 3:25 pm
Trump did not resign. He was removed from office by a different section of the Constitution. A proven success of a section which has removed thirty-seven Presidents including Trump. I think that’s significant.
nk (1d9030) — 2/7/2021 @ 5:02 pm
I went into this in one or two places here. Article 2 section 4 must be read as saying that removal from office is an automatic penalty when someone is impeached – it does not create the power of impeachment, which is assumed to exist, like a Bill of Attainder, absent anything in the constitution to the contrary.

Federalist number 39 mentioned that some states only allowed impeachment after someone was out of office. Secretary of War William W. Belknap is not the only example of an impeachment after leaving office, although it maybe the only case under the federal constitution. There was an attempt to impeach Thomas Jefferson in 1781 after he had stopped being Governor of Virginia.

The only two persons impeached by the British Parliament in the 1700s were both out of office at the time, and one of the impeachments, that of Warren Hastings, was going on at the time the constitution was written. There are reasons to look outside of the four corners of a document – it makes clear what words mean and what provisions mean.

Impeachment is a form of discrediting – censure with penalties.

Impeachment is not a special word meaning removal from office.
Sammy Finkelman (5b302e) — 2/7/2021 @ 5:53 pm
Charles Cooper on the side of, yes, an impeachment trial is legit for an ex-president. For him, it’s not so much his argument, which I think we’ve well covered, but that it’s this conservative legal mind saying it.
Paul Montagu (77c694) — 2/7/2021 @ 7:45 pm
Article 2 section 4 must be read as saying that removal from office is an automatic penalty when someone is impeached…

Sammy Finkelman (5b302e) — 2/7/2021 @ 5:53 pm

No, not quite. Removal from office is automatic “on impeachment for, AND CONVICTION OF” the charges. If simply being impeached were enough, Trump would have been out of office a year ago.
Demosthenes (d7fc81) — 2/7/2021 @ 8:22 pm
Great, Coop! Let’s start w/revisiting this fella’s tranagressions and nail his Rawhide to the wall – and into the history books for posterity:

‘On March 5, 1987, Rep. Henry B. González (D-TX) introduced H.Res. 111, with six articles against President Ronald Reagan regarding the Iran-Contra affair to the House Judiciary Committee where no further action was taken. While no further action was taken on this particular bill, it led directly to the joint hearings of the subject that dominated the news later that year. After the hearings were over, USA Today reported that articles of impeachment were discussed but decided against.’

-source,https://en.wikipedia.org/wiki/List_of_impeachment_efforts_for_presidents_of_the_United_States
DCSCA (f4c5e5) — 2/7/2021 @ 8:23 pm
One thing I may have missed, but I think you should have touched on: Unlike some prior examples who left office before impeachment, Trump was still in office the day he was impeached. I think that’s critical.

For those who would like to look through the dailies from the 1787 Convention yourself, they are here in Max Farrand’s Records, downloadable into the format of your choice.
Kevin M (ab1c11) — 2/7/2021 @ 8:43 pm
He shall hold his Office during the Term of four Years,

This. More inexorable than death. Thirty-seven Presidents have been removed by its operation. Eight by death.

If the peaceful transfer of power and the established order of things are important to you, I suggest that going forward with the impeachment trial undermines them. Unlike Rand Paul, I am not a failed ophthalmologist and successful crapweasel, so I won’t insist that it’s unconstitutional. I will only opine that it’s not how we do things.

The disqualification from future office is a thin reed. Two words: Alcee Hastings. Removed but not disqualified, and now sitting in Congress. It’s not the goal of impeachment, it’s a collateral disability (enhanced penalty, whatever) which is not always applied. The goal of impeachment is removal from office. If we want to punish Trump, the place for it is the courts.
nk (1d9030) — 2/7/2021 @ 9:05 pm
The goal of impeachment is removal from office. If we want to punish Trump, the place for it is the courts.

nk (1d9030) — 2/7/2021 @ 9:05 pm

The primary goal, yes. But not the only goal. And a case could be made that doing it is simply the right thing to do.

However, that is not the case I would make. And I agree with you…the best way to punish Trump, now that he is a private citizen and does not have the office’s protection, is by holding him accountable for any crimes he committed. Just because something is constitutional does not mean that it is a good idea, or the best way forward.
Demosthenes (d7fc81) — 2/7/2021 @ 9:15 pm
This. More inexorable than death. Thirty-seven Presidents have been removed by its operation. Eight by death.

On July 20, 1787 there was a general debate on the idea of impeachment:

Mr. Davie. If he be not impeachable whilst in office, he will spare no efforts or means whatever to get himself re-elected. He considered this as an essential security for the good behaviour of the Executive.

Mr Wilson concurred in the necessity of making the Executive impeachable whilst in office.

Mr. Govr. Morris. He can do no criminal act without Coadjutors who may be punished. In case he should be re-elected, that will be sufficient proof of his innocence. Besides who is to impeach? Is the impeachment to suspend his functions. If it is nor the mischief will go on. If it is the impeachment will be nearly equivalent to a displacement, and will render the Executive dependent on those who are to impeach

Col. Mason. No point is of more importance than that the right of impeachment should be continued. Shall any man be above Justice? Above all shall that man be above it, who can commit the most extensive injustice? When great crimes were committed he was for punishing the principal as well as the Coadjutors. There had been much debate & difficulty as to the mode of chusing the Executive. He approved of that which had been adopted at first, namely of referring the appointment to the Natl. Legislature. One objection agst. Electors was the danger of their being corrupted by the Candidates: & this furnished a peculiar reason in favor of impeachments whilst in office. Shall the man who has practised corruption & by that means procured his appointment in the first instance, be suffered to escape punishment, by repeating his guilt?

Docr. Franklin was for retaining the clause as favorable to the executive. History furnishes one example only of a first Magistrate being formally brought to public Justice. Every body cried out agst this as unconstitutional. What was the practice before this in cases where the chief Magistrate rendered himself obnoxious? Why recourse was had to assassination in wch. he was not only deprived of his life but of the opportunity of vindicating his character. It wd. be the best way therefore to provide in the Constitution for the regular punishment of the Executive when his misconduct should deserve it, and for his honorable acquittal when he should be unjustly accused.

Mr. Govr Morris admits corruption & some few other offences to be such as ought to be impeachable; but thought the cases ought to be enumerated & defined:

Mr. –thought it indispensable that some provision should be made for defending the Community agst the incapacity, negligence or perfidy of the chief Magistrate. The limitation of the period of his service, was not a sufficient security. He might lose his capacity after his appointment. He might pervert his administration into a scheme of peculation

or oppression. He might betray his trust to foreign powers. The case of the Executive Magistracy was very distinguishable, from that of the Legislative or of any other public body, holding offices of limited duration. It could not be presumed that all or even a majority of the members of an Assembly would either lose their capacity for discharging, or be bribed to betray, their trust. Besides the restraints of their personal integrity & honor, the difficulty of acting in concert for purposes of corruption was a security to the public. And if one or a few members only should be seduced, the soundness of the remaining members, would maintain the integrity and fidelity of the body. In the case of the Executive Magistracy which was to be administered by a single man, loss of capacity or corruption was more within the compass of probable events, and either of them might be fatal to the Republic.

Mr. Pinkney did not see the necessity of impeachments. He was sure they ought not to issue from the Legislature who would in that case hold them as a rod over the Executive and by that means effectually destroy his independence. His revisionary power in particular would be rendered altogether insignificant.

Mr. Gerry urged the necessity of impeachments. A good magistrate will not fear them. A bad one ought to be kept in fear of them. He hoped the maxim would never be adopted here that the chief Magistrate could do wrong.

Mr. King expressed his apprehensions that an extreme caution in favor of liberty might enervate the Government we were forming. He wished the House to recur to the primitive axiom that the three great departments of Govts. should be separate & independent: that the Executive & Judiciary should be so as well as the Legislative: that the Executive should be so equally with the Judiciary. Would this be the case if the Executive should be impeachable? It had been said that the Judiciary would be impeachable. But it should have been remembered at the same time that the Judiciary hold their places not for a limited time, but during good behaviour. It is necessary therefore that a forum should be established for trying misbehaviour. Was the Executive to hold his place during good behaviour?

–The Executive was to hold his place for a limited term like the members of the Legislature; Like them particularly the Senate whose members would continue in appointmt the same term of 6 years. he would periodically be tried for his behaviour by his electors, who would continue or discontinue him in trust according to the manner in which he had discharged it. Like them therefore, he ought to be subject to no intermediate trial, by impeachment. He ought not to be impeachable unless he hold his office during good behavior, a tenure which would be most agreeable to him; provided an independent and effectual forum could be devised; But under no circumstances ought he to be impeachable by the Legislature. This would be destructive of his independence and of the principles of the Constitution. He relied on the vigor of the Executive as a great security for the public liberties.

Mr. Randolph. The propriety of impeachments was a favorite principle with him; Guilt wherever found ought to be punished. The Executive will have great opportunitys of abusing his power; particularly in time of war when the military force, and in some respects the public money will be in his hands. Should no regular punishment be provided, it will be irregularly inflicted by tumults & insurrections. He is aware of the necessity of proceeding with a cautious hand, and of excluding as much as possible the influence of the Legislature from the business. He suggested for consideration an idea which had fallen (from Col Hamilton) of composing a forum out of the Judges belonging to the States: and even of requiring some preliminary inquest whether just grounds of impeachment existed.

Doctr. Franklin mentioned the case of the Prince of Orange during the late war. An agreement was made between France & Holland; by which their two fleets were to unite at a certain time & place. The Duch fleet did not appear. Every body began to wonder at it. At length it was suspected that the Statholder was at the bottom of the matter. This suspicion prevailed more & more. Yet as he could not be impeached and no regular examination took place, he remained in his office, and strengtheing his own party, as the party opposed to him became formidable, he gave birth to the most violent animosities & contentions. Had he been impeachable, a regular & peaceable inquiry would have taken place and he would if guilty have been duly punished, if innocent restored to the confidence of the public.

Mr. King remarked that the case of the Statholder was not applicable. He held his place for life, and was not periodically elected. In the former case impeachments are proper to secure good behaviour. In the latter they are unnecessary; the periodical responsibility to the electors12 being an equivalent security.

Mr Wilson observed that if the idea were to be pursued, the Senators who are to hold their places during the same term with the Executive. ought to be subject to impeachment & removal.

Mr. Pinkney apprehended that some gentlemen reasoned on a supposition that the Executive was to have powers which would not be committed to him: that his powers would be so circumscribed as to render impeachments unnecessary.

Mr. Govr. Morris’s opinion had been changed by the arguments used in the discussion. He was now sensible of the necessity of impeachments, if the Executive was to continue for any time in office. Our Executive was not like a Magistrate having a life interest, much less like one having an hereditary interest in his office. He may be bribed by a greater interest to betray his trust; and no one would say that we ought to expose ourselves to the danger of seeing the first Magistrate in foreign pay without being able to guard agst it by displacing him. One would think the King of England well secured agst bribery. He has as it were a fee

simple in the whole Kingdom. Yet Charles II was bribed by Louis XIV. The Executive ought therefore to be impeachable for treachery; Corrupting his electors, and incapacity were other causes of impeachment. For the latter he should be punished not as a man, but as an officer, and punished only by degradation from his office. This Magistrate is not the King but the prime-Minister. The people are the King. When we make him amenable to Justice however we should take care to provide some mode that will not make him dependent on the Legislature.

Volume 2 of the Records
Kevin M (ab1c11) — 2/7/2021 @ 10:58 pm
There’s a lot in that that seems to be true today. I wonder if the 2/3rds requirement is too steep. If it was a mere majority, would that lead to many impeachments, or would the fear of churn and retribution lead the Senate to be less partisan in its use? I would like to think so, but then I consider our current Senate and the clear operation of Sturgeon’s Law therein.
Kevin M (ab1c11) — 2/7/2021 @ 11:04 pm
It seems like a virtue of parliamentary systems that throwing out the government forces the legislative body who took that drastic step to immediately face the voters themselves.

Of course, there are important differences, since votes of no confidence aren’t usually based on charges of wrongdoing like impeachment is. And impeachment, if it were ever to result in conviction, would not transfer executive power to the opposition.

I don’t think either party today is capable of acting in the interests of the country, as Republicans in congress did in1974. The judiciary is not suited to act as referees in political disputes between the executive and congress. In practice, that leaves the executive as a law unto itself, since absent a supermajority, congress is ultimately impotent.

tldr; we’re %#$&ed.
Dave (1bb933) — 2/7/2021 @ 11:36 pm
Despite the learned arguments on this, the practical situation is that there will be an impeachment trial (apparently abbreviated, as there seems to be a bipartisan consensus that this trial will not determine much). There will not be enough votes for a conviction. The GOP senators will use the Constitution as a fig leaf, so that they can escape annoying the ForeverTrumps and the NeverTrumps. I can’t think of a group that more deserves its perpetual nervousness.

The idea of censure, with a provision using the 14th Amendment to prevent Trump from running again, has been floated. That would just require a majority vote — though I assume that it would be filibustered in the Senate unless Mitch can cobble 5 more Republicans to support the resolution.
Appalled (1a17de) — 2/8/2021 @ 6:24 am
I think your point is correct; Being conservative no longer means adhering to any specific principle. The idea that the current incarnation of the GOP would voluntarily support a legal framework (the constitution) that didn’t lead to short term political gain is silly. The Constitution, Rule of Law, Family Values, Limited Government, and Fiscal Discipline are just talking points that have no value to the GOP in and of themselves. At best they’re an area where GOP faithful can argue that the Dem’s are worse.

It’s absolutely ridiculous that in the last 2 election cycles the only example of a presidential candidate identifying a policy goal that they can’t accomplish because it’s not legal is Joe Biden. I think he also did it with the mask mandate. He said he’d order them to be worn, and then walked it back from ‘ordered’ to ‘encourage’ after his team realized he couldn’t actually do that.

I wish he’d come to same logical conclusion around the eviction ban.
Time123 (653992) — 2/8/2021 @ 6:48 am
9. Demosthenes (d7fc81) — 2/7/2021 @ 8:22 pm.

Removal from office is automatic “on impeachment for, AND CONVICTION OF” the charges. If simply being impeached were enough, Trump would have been out of office a year ago.

You’re right. I was using that word “impeachment” like everybody does, even though it’s not technically correct, to mean the whole thing.

Another word with a popular incorrect meaning is “recession,” which only means the downward slope and does not include the time till things get back to where they were before it started. Nobody says the Great Depression ended in 1933.
Sammy Finkelman (5b302e) — 2/8/2021 @ 8:10 am
Kevin M @11. I found this at the link, which is additional proof that the concept of impeachment included impeachments after a term of office has expired. (and this is only the first thing I encountered – I didn’t search further yet.

For Friday 1 June (brief summary of debate about about the executive) :

Randolph — Danger of Monarchy, or Tyranny, [but] if the ex. consists of three persons they may execute yr. Functions without Danger — if [only] one [person] he can not be impeached until the expiration of his Office, or he will be dependent on the Legislature — such an Unity wd. be agt. the fixed Genius of America &c &c —

They later put in a 2/3 requirement for conviction. They tended all to agree on the separation of the executive power from the legislative power, as is not the case in Westminster system, that’s why this argument.
Sammy Finkelman (5b302e) — 2/8/2021 @ 8:43 am
Kevin M (ab1c11) — 2/7/2021 @ 8:43 pm

, but I think you should have touched on: Unlike some prior examples who left office before impeachment, Trump was still in office the day he was impeached. I think that’s critical.

Further, since the late 1950s, it can be said that a former president does occupy some office – he gets more than a pension, it’s really a salary.

https://www.cbsnews.com/news/office-of-the-former-president-trump-florida

— Former President Donald Trump announced Monday the official opening of the “Office of the Former President” in Palm Beach County, Florida, which is tasked with overseeing the 45th president’s official activities in his post-presidency life.

“The office will be responsible for managing President Trump’s correspondence, public statements, appearances and official activities to advance the interests of the United States and to carry on the agenda of the Trump administration through advocacy, organizing and public activism,” the office said in a statement. “President Trump will always and forever be a champion for the American people.”

He speaks about “official activities.”
Sammy Finkelman (5b302e) — 2/8/2021 @ 8:48 am
The “Office of the Former President” is as real as the “Office of the President-Elect.” Both exist only in their minds.
Rip Murdock (d2a2a8) — 2/8/2021 @ 8:57 am
14.

Docr. Franklin was for retaining the clause as favorable to the executive. History furnishes one example only of a first Magistrate being formally brought to public Justice. Every body cried out agst this as unconstitutional.

I think maybe Benjamin Franklin was talking about King Charles I of England.

https://www.parliament.uk/about/living-heritage/building/palace/westminsterhall/government-and-administration/trial-of-charlesi

The King appeared before his judges four times, charged with tyranny and treason. The exchanges always took a similar form with the King challenging the court’s authority and its right to try him.

Peculiar nature of the trial

The peculiar nature of the trial reflects not simply the fact that a King was on trial but that both the King and his judges took their stand on what are still crucial principles – the King on his right to trial by a properly constituted court acting on the basis of established law, and his accusers on the need to call to account a King they had described as a tyrant who shed the blood of his people.
Sammy Finkelman (5b302e) — 2/8/2021 @ 8:57 am
Dave (1bb933) — 2/7/2021 @ 11:36 pm

It seems like a virtue of parliamentary systems that throwing out the government forces the legislative body who took that drastic step to immediately face the voters themselves.

That is one possibility, but that’s not true at all. Just look at Italy today.

https://en.wikipedia.org/wiki/2021_Italian_government_crisis

Or Great Britain in 1990, when Margaret Thatcher was removed by the Conservative Party (they had passed a law replacing property taxes with a capitation tax, and it was about to go into effect in England.)

In Parliamentary system you often can’t defeat legislation without forcing the resignation of the government, but the resignation of the government doesn’t have to force elections.
Sammy Finkelman (5b302e) — 2/8/2021 @ 9:14 am
13. Demosthenes (d7fc81) — 2/7/2021 @ 9:15 pm

… the best way to punish Trump, now that he is a private citizen and does not have the office’s protection, is by holding him accountable for any crimes he committed. Just because something is constitutional does not mean that it is a good idea, or the best way forward.

There are two issues with that – what Trump did that is bad may not be a violation of the criminal code; and they may not want to sentence Trump to jail or probation.

One problem with the impeachment case is that the managers do not seem to be very interested in the truth. still contains the claim that:

https://int.nyt.com/data/documenttools/impeachment-manager-brief/77a0a0d89423b554/full.pdf

“The insurrectionists killed a Capitol Police officer by striking him in the head with a fire extinguisher”

…attributing that to a story in the New York Times, which doesn’t actually state that.

https://www.nytimes.com/2021/01/07/us/politics/a-capitol-police-officer-dies-from-injuries-sustained-during-the-pro-trump-rampage.html

The original source may be two unknown Capitol Hill police officers and that’s not in the New York Times. There are conflicting stories, and the actual cause of his death is unsettled. He himself was quoted by his brother as having said he was hit by pepper spray twice. Other police officers were hit by fire extinguishers.

Not to mention attributing the storming of the Capitol to Donald Trump’s words shortly before.
Sammy Finkelman (5b302e) — 2/8/2021 @ 9:43 am
That was a well reasoned and cogent newsletter, Patterico. I notice it was linked on Real Clear Politics, so it got a much wider audience than this blog or your Substack. Good job!

I agree that the Constitution does not prohibit impeachment of former office holders, and that in this case the argument is not about removal from office, as Trump was voted out of office, but about disqualification from holding future office. I’m in favor of that.

And in a warped way, I think Trump is too. Think about it. If convicted and disqualified, he won’t have to campaign or govern, but he will be able to rile up his cult mob, as he did on Jan. 6.

He’s been pouring millions into his PACs, Save America and what not. While he cannot use that money to finance his own future campaign, he can use it for travel, rallies, and primary contributions to his loyalists and for primary contributions against perceived disloyalists.

Convicted and disqualified, he’ll become a martyr for the QOP. In a strange way, he’ll become more powerful, a king maker in the primaries of the midterms, in 2022.

The Senate Republicans are not going to convict and disqualify. That’s a given, no matter what evidence the House impeachment managers present. Trump was impeached while in office; the House delivered the article of impeachment to the Senate before the Inauguration of the next President. Therefore there must be a Senate trial.

It’s a foregone conclusion that Senate Republicans will not vote to convict. They’re all cowards, not Constitutionalists. They fear the Trump mob.
Gawain's Ghost (b25cd1) — 2/8/2021 @ 10:07 am
Too often we don’t mention injury and maiming, as a consequence of anything, but tend to speak only of deaths.

But Patterico links a tweet about that in his “Popular Constitutionalism” post:

https://twitter.com/byrdinator/status/1354479134525808640
Sammy Finkelman (5b302e) — 2/8/2021 @ 10:07 am
Appreciated getting the newsletter and the thought that went into it. But it left me unconvinced. Just a few points, which people with more knowledge or understanding may shoot down:

1. The Constitution could easily have been drafted to specify that Congress had the right to impeach former officers of the United States, but it doesn’t say that. The natural meaning of the impeachment language has always seemed to me that the power of impeachment extends only to those currently in office. The purpose of impeachment is to remove corrupt or criminal officials, so once an official has left office, what’s the point?

2. It’s true that upon conviction an official can also be barred from holding office again. But nothing in the language allowing that remedy necessarily supports allowing a former official to be impeached. Maybe I’m just being dense, but Patterico’s argument that a vote to disqualify an officeholder from further office will always follow a vote to convict means that the Senate can never disqualify a sitting president doesn’t make sense to me. Why can’t the Senate issue a verdict that reads along the lines of, “we find President X guilty of high crimes and misdemeanors and hereby order that 1. President X be disqualified from being elected or reelected to the office of President and 2. President X be immediately removed from office.” OK, that reads kind of funny but even if you flip my 1. and 2. why can’t the Senate impose both the sanction of removal and disqualification in the same ruling?

3. The Belknap case is definitely precedent supporting Patterico’s view. But you don’t have to be a “living Constitutionalist” to view that precedent as a misinterpretation of the Constitution. It doesn’t necessarily imply that one is a standardless, results-oriented person if you read the Constitution differently than the Senate did back then. We have no problem saying that politicians or courts in other eras made incorrect decisions or acted in unconstitutional ways. See, e.g., the Alien and Sedition Acts, supported by many of the founders who presumably knew all about the purposes and spirit of the Bill of Rights.

4. As for the argument that it is somehow absurd that an official could avoid impeachment by the simple expedient of resigning, there are plenty of examples of that sort of thing in the law. On the more mundane level of civil litigation with which I’m familiar, a plaintiff can avoid a court ruling sustaining a demurrer to his or her complaint by the expedient of filing an amended complaint the day before the hearing, or even by dismissing the complaint. The defendant doesn’t get the satisfaction, or the possible res judicata benefit, of a judge ruling that the complaint had no merit, and the judge might justifiably be annoyed at attorneys who use such tactics, but withdrawing a pleading even at the last minute to avoid an unfavorable result is accepted. So by analogy resigning to avoid impeachment, or avoiding it by having a term in office expire, doesn’t seem like an unheard of concept.

5. But, even I’m right about any or all of the above (Constitutional Law was my worst subject in law school, so maybe I just don’t get it) Patterico is right that the Senate has the power to determine whether it has jurisdiction to conduct Trump’s impeachment power. I don’t see anything in the Constitution giving the Supreme Court the right second-guess the Senate. Right or wrong, since the Senate has determined it has jurisdiction, its determination should not be reviewable by the courts.
RL formerly in Glendale (fda61c) — 2/8/2021 @ 11:26 am
1. The Constitution could easily have been drafted to specify that Congress had the right to impeach former officers of the United States, but it doesn’t say that. The natural meaning of the impeachment language has always seemed to me that the power of impeachment extends only to those currently in office. The purpose of impeachment is to remove corrupt or criminal officials, so once an official has left office, what’s the point?

First, Trump was President when he was impeached, it is only the trial that is occurring after he lost the election. Secondly, a President could commit clearly impeachable offenses and then resign to avoid impeachment and trial.

2. It’s true that upon conviction an official can also be barred from holding office again. But nothing in the language allowing that remedy necessarily supports allowing a former official to be impeached……..OK, that reads kind of funny but even if you flip my 1. and 2. why can’t the Senate impose both the sanction of removal and disqualification in the same ruling?

See my response to number 1. While conviction requires a two-thirds vote, disqualification from office (according to existing procedures) requires a separate majority vote.
…….
4. As for the argument that it is somehow absurd that an official could avoid impeachment by the simple expedient of resigning, there are plenty of examples of that sort of thing in the law…….

Given that the impeachment is political and not a legal construct, the rules and processes are different (though those who are impeached side always try to analogize the two.).
Rip Murdock (d2a2a8) — 2/8/2021 @ 11:48 am
RL formerly in Glendale (fda61c) — 2/8/2021 @ 11:26 am

1. The Constitution could easily have been drafted to specify that Congress had the right to impeach former officers of the United States, but it doesn’t say that.

It wasn’t necessary. That was the default assumption. Impeachment had been used or threatened against former officials – it could be even more than against current officials.

https://avalon.law.yale.edu/18th_century/fed39.asp

In several of the States, however, no constitutional provision is made for the impeachment of the chief magistrate. And in Delaware and Virginia he is not impeachable till out of office. The President of the United States is impeachable at any time during his continuance in office. The tenure by which the judges are to hold their places, is, as it unquestionably ought to be, that of good behavior.

See also:

https://www.wsj.com/articles/yes-the-senate-can-try-trump-11611356881

… In 1781 the Virginia General Assembly subjected Thomas Jefferson to an impeachment inquiry after he completed his term as governor…[This os obscure. I could not find any reference to it on the Internet, but maybe it is in a detailed Thomas Jefferson biography -SF] ,,,, A former Vermont lawmaker was impeached and disqualified from future state office for leading one of the tax rebellions that spurred the drafting of the U.S. Constitution.

Of course, in Great Britain, the impeachment of Warren Hastings (a former top official in India) led in part by Edmund Burke, was going on at the time.

This wording on the constitution:

https://constitutioncenter.org/interactive-constitution/full-text

Article II, Section 4:

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

should not be read as establishing the power to impeach, but as declaring thw minimum punishment that automatically follows. The Senate can’t convict him and then let him off. If this established the power to impeach, then where do you get the power to impeach judges? Even if judges are included among civil officers, because they are linked with “all other Officers of the United States” where do you get the extension of the grounds for their impeachment from “Treason, Bribery, or other high Crimes and Misdemeanors” to the absence of “good behavior?”

The constitution says, at the start of Article III, that

The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour…

but it doesn’t specify there how they are removed.

The natural meaning of the impeachment language has always seemed to me that the power of impeachment extends only to those currently in office. The purpose of impeachment is to remove corrupt or criminal officials, so once an official has left office, what’s the point?

The purpose of impeachment is to disqualify someone from holding public office, and it has the incidental effect of removing them from an office that they are currently holding. The Senate may or may not, make it permanent, or limit the offices the person is disqualified from.

Patterico’s argument that a vote to disqualify an officeholder from further office will always follow a vote to convict means that the Senate can never disqualify a sitting president doesn’t make sense to me.

I agree that’s not a good argument. You could say disqualification can only take place in a process that started with removal. But I think that saying that leaving office, even by resignation, renders the impeachment moot and the person in question can no longer be disqualified from making a comeback would be bad constitutional design.

why can’t the Senate impose both the sanction of removal and disqualification in the same ruling?

Well for one thing, conviction requires a 2/3 majority – once that has happened only a aimplw majority is required for disqualification (as things have been understood)

Yes the current Senate could have a different opinion. But it doesn’t. The vote was 55-45 that Trump could be tried. (By the way, Senator Schumer asked Chief Justice Roberts to preside but he declined.)

Rand Paul may try for a second vote, and now he’s arguing that it is unwise to pursue this.

4. As for the argument that it is somehow absurd that an official could avoid impeachment by the simple expedient of resigning, there are plenty of examples of that sort of thing in the law. On the more mundane level of civil litigation with which I’m familiar, a plaintiff can avoid a court ruling sustaining a demurrer to his or her complaint by the expedient of filing an amended complaint the day before the hearing, or even by dismissing the complaint. The defendant doesn’t get the satisfaction, or the possible res judicata benefit, of a judge ruling that the complaint had no merit, and the judge might justifiably be annoyed at attorneys who use such tactics, but withdrawing a pleading even at the last minute to avoid an unfavorable result is accepted. So by analogy resigning to avoid impeachment, or avoiding it by having a term in office expire, doesn’t seem like an unheard of concept.

The thing here is he’s not only avoiding a removal – he’s avoiding a possible penalty. But that may exist in other circumstances in the law.
Sammy Finkelman (5b302e) — 2/8/2021 @ 1:10 pm
Oops.
Trump’s defense lawyers cited a Professor Kalt fifteen times but misrepresented his work (to put it charitably), according to Kalt himself.
His 133-page thesis concluded that late impeachments are permissible.
The uncharitable take is that Trump’s attorneys lied in defense of their serial-lying client.
Paul Montagu (77c694) — 2/8/2021 @ 1:20 pm
The idea of censure, with a provision using the 14th Amendment to prevent Trump from running again, has been floated. That would just require a majority vote — though I assume that it would be filibustered in the Senate unless Mitch can cobble 5 more Republicans to support the resolution.

Except that cannot work. Only if he is convicted of a crime like treason, insurrection, or incitement of same can he be barred under the 14th Amendment. Congress cannot “convict” someone of a crime by vote (Art 1, Section 9, clause 3: “No Bill of Attainder or ex post facto Law shall be passed.”
Kevin M (ab1c11) — 2/8/2021 @ 6:08 pm
They could not even cut off his perks as ex-President due to an asserted subversion. (United States v. Lovett, 328 U.S. 303 (1946))
Kevin M (ab1c11) — 2/8/2021 @ 6:10 pm
Except that cannot work. Only if he is convicted of a crime like treason, insurrection, or incitement of same can he be barred under the 14th Amendment.

I don’t think every traitor who took up arms against their country under the flag of the so-called Confederacy was put on trial and convicted. The relevant part of the 14th Amendment does not require trial or conviction:

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 officer 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.

It is *already* the law of the land that any government official who swore an oath, and violated it by engaging in insurrection or rebellion, is barred from holding office (absent a reprieve from Congress).

Any electoral votes for such a person would not be “regularly cast”, and would be invalid.

The situation would be the same as for a candidate who was under 35 years of age, not a natural-born citizen or who had already served the allowed number of terms. You don’t have to be convicted of being too young, or a foreigner or term-limited to be ineligible. You just are.
Dave (1bb933) — 2/8/2021 @ 6:23 pm

2/7/2021

Constitutional Vanguard: The Constitution Doesn’t Mean a Damned Thing to the So-Called “Constitutionalists”

34 Responses to “Constitutional Vanguard: The Constitution Doesn’t Mean a Damned Thing to the So-Called “Constitutionalists””

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