An Originalist Case for Impeaching Ex-Presidents: Mason, Randolph, and Gouverneur Morris

[Celerity]

Can a former president be tried by the Senate? The Constitution’s text may not address this question clearly, but the Convention debates of 1787 offer some significant evidence that the answer is yes.

https://shugerblog.com/2021/01/16/the-originalist-case-for-impeaching-ex-presidents-mason-randolph-and-morris/



Thomas Parker, 1st Earl of Macclesfield, Impeached in 1725 by The House of Lords, AFTER he resigned.


Over the last few days, Judge Michael Luttig and impeachment expert Ross Garber have been making a formalistic textual argument that the Senate can put only sitting presidents on trial, and not former presidents. Others have made important textual, historical, and practical counterarguments (Vladeck, Kalt & Bowman, Whittington, Tribe, Gerhardt). [Update: I add a textual argument based on Art I, Sec 3, cl. 6 & 7 here]. Unfortunately, the post-ratification history is indecisive (especially to originalists). For example, the impeachments of Sen. Blount in 1797 and Sec. of War Belknap) are unclear as precedents (as Kalt acknowledges to Jack Goldsmith here), given that neither led to convictions. Moreover, even though the Blount impeachment occurred in the first decade of new Constitution, it has problems as evidence of original public meaning. A crucial overlooked counterargument is the original public meaning revealed in the 1787 Convention itself.

Together, delegates George Mason, Edmund Randolph, and Gouverneur Morris indicate a broad purpose of impeachment, especially in the context of election fraud (and electoral college controversies), which is most relevant at the end of presidential terms. Such misconduct occurs too late to be punished in the same term. One apt quotation if we are concerned with a narrow or broad reading on timing: Randolph, who identified the danger of presidential misconduct and insurrections, said, “Guilt wherever found ought to be punished.” They do not answer the narrow question directly, but they are more persuasive that the original public meaning and the purposes of the impeachment clauses apply to former officials than an excessively close reading of one clause. Narrow textualism, while appropriate for statutes that are supposed to specify details, has widely been understood to be less appropriate for Constitutions, which are not meant to have “the prolixity of a legal code.” Luttig and Garber make a fundamental mistake of treating the Constitution like a statute, and being hyperformalistic about the impeachment process.

Luttig’s main argument (and I think his only argument) is a close reading of one clause, Article II, Section 2: “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.” Luttig asserts that “[T]he Constitution itself answers this question clearly” with its “plain text.” The only way the Constitution could answer this question clearly is if it said “Congress may not impeach and convict a former official.” One might argue that the actual wording implies a negative, but it does not say so explicitly or clearly. Luttig adds another clause: “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.” However, one can read this as a disjunctive: Judgment includes removal and/or disqualification, but no more. The first interpretation is initially a plausible textual argument (demanding further inquiry), but the second is a tellingly weak textual overreach.

Luttig claims “[t]he purpose, text and structure of the Constitution’s Impeachment Clauses confirm this intuitive and common-sense understanding,” but Luttig offers only a hypernarrow textual reading for a conclusion that actually contradicts purposes, structure, intution, and common sense. Before we turn back to 1787, let’s think about common sense. Several commentators have pointed out that Luttig’s interpretation would allow any impeached official to dodge trial and disqualification by resigning even a minute before trial, especially once they had a sense the vote was headed to conviction. As Brian Kalt has pointed out, this rule would have a perverse effect that the most guilty officials would be most likely to avoid disqualification, and it would be odd to put a process so entirely in the hands of a defendant. Moreover, what does common sense tell us about when a sitting president is most dangerous? Obviously at the end of his term when running for re-election or facing a possible election defeat and trying to hold onto power. That’s precisely what has happened since Nov. 3.

It turns out that the Framers in the Constitutional Convention articulated these concerns............................

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