Tuesday, January 12, 2021

Sense and Nonsense about Impeachment [UPDATED]

The Internet is all a-burbling with talk of impeachment. Much of what I have read is ill-informed, or indeed uninformed, nonsense. Your Curmudgeon approaches the subject as one trained in constitutional law, who learned the subject from the likes of Paul A. Freund and Archibald Cox. That was more than fifty years ago, and since then my passion for the subject has but grown, with each successive year. In this post, I will try my best to sort out sense from nonsense.

As any good legal scholar knows, questions about the Constitution always start with its text. Let me quote the last clause of Article I, Section 4 of that foundational document:

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: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

Notice the conjunction of the two operative phrases: "removal from Office, and disqualification . . .". The word "or" is absent, meaning the two phrases go together. This is basic English, and basic logic.

That logic does not stop the ill-informed, including many professors of law, from claiming that Congress may still, even after the term of the impeached officeholder has expired, enter a judgment of impeachment that encompasses disqualification without removal from office (because -- duh -- the officeholder is no longer capable of being removed). See, for example, this postthis article, and this article. And this professor even claims that the whole deed could be accomplished in a single day

Never mind that it never has been done that way, and never mind that there is another provision that forbids the government from depriving anyone of property, including the right to hold an elected office, without due process of law -- which means by a regular trial that includes all of the customary protections such as the right to call witnesses in defense, and to confront the witnesses testifying against you, among other rights. If "due process" is duly observed, there is no way that citation for impeachment, trial and conviction could all take place in just one day. But that realization does not deter the biased pundits from pontificating, or discourage the even more biased media from publicizing the pundits' ill-informed views.

The same pundits manage to pat themselves on the back by celebrating (even if somewhat modestly) how the recently released House report on impeachment quotes and cites them in support of its admittedly partisan conclusion.

And, as a sort of pièce de resistance, one professor cites this law review article as "probably the closest thing we have to an authoritative academic analysis of the issue." Let me save you the effort: I have downloaded the entire 68-page article at that link, and have read it all the way through. Its entire treatment of disqualification as a consequence of "impeachment after the expiration of office" appears just before the end, at pages 63-64. 

It is only as an introduction to that section that the article candidly confesses:

The foregoing has all been directed at the question of whether late impeachment is allowed. It is time to confront a more difficult question for proponents of late impeachment: What is the point?

And only then does the article go on to discuss the subject of disqualification, apart from the removal from office. Yet it still can cite no precedent whatsoever for a judgment of disqualification that came after an officeholder's term had expired of its own accord, i.e., in the absence of a preceding vote to remove that official from office. (And even then, it can cite just two cases -- both sitting federal judges -- in which the Senate voted both for impeachment and disqualification -- see fn. 524, on p. 63.) In other words, the very thing that the elites and their media cohorts are trumpeting should now happen has never before happened in our nation's history -- and certainly not in the case of a former President.

Of course, most of my readers will know that not a single sitting President has ever before been charged in articles passed by the House and convicted (impeached) by the Senate, let alone disqualified from future office. Does the reader begin to grasp why the clamoring mob (including the bandwagon in Congress and their ready-to-testify legal experts) are so out of bounds on this most consequential subject? Has their visceral reaction to Donald Trump indeed driven almost all the published pundits to abandon all logic, and the actual language of our Constitution?

I draw no conclusion, but I certainly have my doubts about the degree to which the rest of us should take such people at face value. And so, I should add, does this lay commenter.

What is more, I consider myself on even firmer ground when I bring up a consideration that, as far as I have been able to discover among all the posts on this touchy subject, has not yet been taken into account. For (lest we forget, due to the dimness of our ancient Anglican history) the Constitution also contains this succinct restriction upon the powers of Congress, in Art. I, Section 9, clause 3:

No Bill of Attainder or ex post facto Law shall be passed.

The same restriction was applied to the individual States in Art. I, Section 10, clause 1, so the Founders must have considered this restriction as essential to our republican form of government. So what exactly is a "Bill of Attainder"?

We have to go back to English law (and Blackstone's Commentaries) to understand the history of this term, and the abominable practice it embodied. Parliament claimed the power to pass a bill that simply sentenced a subject of the Crown to death, with or without any kind of trial or evidentiary proceedings having taken place -- that was the traditional "Bill of Attainder", taken from the fact that the person so condemned was regarded as "attainted" by an extraordinary crime committed against the Crown.

Over time, the abuses of this power became abhorrent to those brought up in the tradition of the Magna Carta, and our Founders were no exception: hence the restrictions upon such Bills in our Constitution.

And over the years since the adoption of our Constitution, the courts have had occasion to apply and interpret its language forbidding such acts by the national or State legislatures. The best and simplest online explication of what our courts have held in this regard may well be this one, which quotes the language of actual cases (I have omitted the footnote references, but you may see them at the link):

“Bills of attainder . . . are such special acts of the legislature, as inflict capital punishments upon persons supposed to be guilty of high offences, such as treason and felony, without any conviction in the ordinary course of judicial proceedings. If an act inflicts a milder degree of punishment than death, it is called a bill of pains and penalties. . . . In such cases, the legislature assumes judicial magistracy, pronouncing upon the guilt of the party without any of the common forms and guards of trial, and satisfying itself with proofs, when such proofs are within its reach, whether they are conformable to the rules of evidence, or not. In short, in all such cases, the legislature exercises the highest power of sovereignty, and what may be properly deemed an irresponsible despotic discretion, being governed solely by what it deems political necessity or expediency, and too often under the influence of unreasonable fears, or unfounded suspicions.” The phrase “bill of attainder,” as used in this clause and in clause 1 of § 10, applies to bills of pains and penalties as well as to the traditional bills of attainder. 

So while not exactly condemning President Trump to execution (though there have been voices clamoring to that effect), any judgment of disqualification entered by Congress after his term had expired according to law would, I submit, be just such a forbidden Bill of Attainder (or, more technically, a "Bill of Pains and Penalties"). Its object admittedly would not be to remove him from the office he had already left when his term expired by law, but simply to punish him after the fact by depriving him permanently of the right of any qualified American citizen to be elected to an office under the United States. 

It would be directed, as all such Bills are, against a single individual, and would be passed in the absence of proceedings conducted according to the laws applicable to trials in the courts of the United States. The Constitution gives the Senate the sole power to try cases of impeachment, and prescribes no rules for doing so --- other than that the Senators must be "on oath", and that the Chief Justice of the United States must "preside" when a sitting President is being tried. Please note the specific language once more: the Constitution says when "the President of the United States is tried" -- not "the former President," or "ex-President".

I do not present this as a definitive argument, but only as a check on the rush to judgment which appears to be ubiquitous in our national media, as well as among those whom the media selectively choose to quote.

In sum: there is no logic or language in the Constitution that authorizes a former President to be tried for impeachment, let alone convicted and judged, with or without an accompanying sentence of disqualification.

If we indeed are to remain a government of laws, and not descend to rule by the passions of the moment, we have to adhere to the plain text of our entire Constitution. To argue by taking snippets from it out of context, in order to say (in effect) that the end justifies the means, is to unmoor ourselves from the rule of law --- which in the first instance comes from the sense of the Constitution itself.

[UPDATE 01/13/2021: In light of the House's resolution of today, I need to register a strong protest against the misuse of the word "impeachment". The headlines, for example, are all screaming that "Trump is the first President to have been impeached twice". To which I reply: "No, he has not -- he has not even been impeached once.

To be "impeached", in the legal sense of the term, is to be convicted by the Senate, after a trial, upon articles of impeachment lodged with the Senate by the House of Representatives. The analogy is to an indictment by a grand jury: that grand jury can indict an official, but he is not convicted on the grand jury's charges until there has been a full trial, with a verdict of "guilty as charged." If that official were found "not guilty" of the charges, why would there ever be any note of triumph in claiming that the official had been "indicted"? The outcome is that he was found not guilty of the charges in the indictment, and that is what counts in the end.

So all that the House has accomplished today is not a "second impeachment" of President Trump, but only the bringing of a second charge to the Senate that hypothetically could, but which in reality will not (because Trump has only a week left in office), result in his trial and impeachment --- sc. removal --- from the office of President. Instead, he will be long gone from office before the House can even transmit its charges to a Senate that is actually in session (starting January 19 -- one day before the expiration of President Trump's term).

So -- don't fall victim to the media's manipulation of our language. "Impeachment" means the same as "removal from office after a trial by the Senate upon articles brought and prosecuted by the House, resulting in a judgment of impeachment." The House alone, in short, has no power to "impeach" the President (or any other official) by itself. All it can do is prefer charges against an official, which -- if true as found after a full trial with the whole Senate sitting as a jury -- would justify his or her removal from office, as having committed "Treason, Bribery, or other high Crimes and Misdemeanors" as required by Art. II, Section 4 of the Constitution. 

In sum, President Trump has not been "impeached" twice. In fact, he has not even been impeached once.]


  1. AMEN! Thanks for your excellent series of articles during this period.

  2. Thanks for your articles. They're very helpful to this layperson.

  3. I do not put Trump in the same category as Jesus...but it seems like the over-the-top persecution is turning him into a kind of martyr. It has certainly separated the RINOs from the republicans. I suspect there will be many republican seats up for grabs in two years. As for the democrats... their consolidated efforts will unravel. I continue to be impressed with Tulsi Gabbard.

  4. Well said. Unless you believe in a "Living Constitution" which means in reality that the Constitution has no fixed meaning and the courts are at liberty to make up their own, the plain words of the Constitution could not be clearer: that impeachment only applies to sitting President or other Officers and not former Presidents or other Officers.

    I would also argue that once a President leaves office the Senate no longer has subject matter jurisdiction to try him even if articles of impeachment were passed by the House. How, for heavens sake, can you remove someone from office when he is no longer in office?

  5. Counselor Haley,
    Can you comment on this article, which makes the case that a president CAN be impeached after s/he leaves office?
    Many thanks for your time, if you can comment.


    1. That article, Crutch, is just one more attempt by the media to load the dice against Trump before the Senate even takes up the issue. And in saying that the Senate has "no choice", but must "immediately" take up the House's articles of impeachment, it ignores the fact that the House (in its earlier version of this charade) waited a month before sending its articles to the Senate, and is probably going to wait even longer this time. So why should the House have discretion to decide when prosecution starts, but the Senate has to jump once the House makes its move?

      Such flawed reasoning is only one defect in the article. As I pointed out in my post, there is absolutely not a single precedent for "impeaching" a President whose term of office has expired according to law. Sure, the House impeached Secretary Belknap who tried to avoid that consequence by resigning his post early ("You can't fire me -- I quit!"), but that is not the case with Trump (as it was with Nixon).

      The plain language of the Constitution makes clear that impeachment is a vehicle to remove an elected official from the office that he occupies. There is no grammatical sense to support an argument that an official may be removed from an office after his term in that office expired.

      All arguments to the contrary are just a subterfuge to get to the remedy the Democrats really want to employ: the addition of a clause to the judgment of removal that makes the person convicted ineligible to hold office under the Unites States ever again. But without a judgment of removal (impeachment), they can't get there: the Constitution does not make that remedy an alternative that can stand by itself. Moreover, to attempt such a maneuver would be, as I argued, an attempt to pass a bill of attainder or ex post facto law that the Constitution expressly forbids.

      I'm not saying, of course, that Congress won't go there -- who knows what they will venture to try if they can muster the votes? But the charges themselves are ludicrous. (Trump was still speaking to his crowd on the Eliipse -- a good half an hour's walk from Capitol Hill -- when the news media began to report a (different) crowd beginning to storm the Capitol; other media reports show that the first assaulters came prepared with equipment, and had been planning the attack for days.) So I pray that the post-Trump Congress will not try to take the country down that unjustifiable path.

  6. If a former President or officer can be impeached what is to prevent a Congress impeaching anyone? Say for example Obama? Or are those proposing this indulging in what I call "Trump law" where Trump looses regardless of the law? That is, Trump can be impeached after he leaves office solely because he is Trump and Obama could not be because he is not Trump.

    1. Exactly, Michael -- if the current Senate can impeach ("remove") Trump after the fact, then a future anti-Democrat Senate could similarly "remove" Obama. And -- something the media will not tell you -- a similar future Senate could vote to expunge any "ex post facto" conviction of Trump. The power-drunk Democrats delude themselves that they can inscribe the future in stone, but the future is not theirs to control.

  7. Thank you for taking the time to respond and for explaining things so clearly. I really do appreciate it.
    Grace and peace to you....

  8. Mr. Haley, do you have any thoughts you would care to share on the following article: https://www.nationalreview.com/2021/01/chief-justice-roberts-owes-us-his-opinion-on-presiding-over-impeachment/

    1. The article is very timely and correct, Michael -- it makes a lot of the points I did in my post. But its chief import is the burden placed upon the Chief Justice, now that the House is formally delivering its one article of impeachment to the Senate, to decide whether or not he will preside over the trial. In its only mention of a "Chief Justice", the Constitution gives that person the duty to preside whenever "the President of the United States" (not the ex-President) is the defendant before the Senate.

      But I disagree with the author's argument that the CJ's decision implicitly involves a "ruling" on the language of Article I. If Chief Justice Roberts does agree to preside, he could do so solely as a courtesy to Senate Leader Schumer, and not because he views it as a constitutionally mandated duty. The Senate is not restricted in whom it may invite or choose to preside over any other kind of impeachment trial.

      As both of us point out, Article I contains no language defining "impeachment", or limiting the powers it grants to the House and Senate for that purpose (except that the Senators must sit as jurors "under oath"). Thus those who argue in favor of such a broad power of impeachment are saying that it implicitly includes the power to "impeach" (but what does that mean in this case?) persons who no longer occupy any office under the United States. Never mind that the Senate has never voted to convict anyone out of office in its 232-year history. If they could assert such a power, what would stop a future Republican-controlled Congress from "impeaching" (again, I have inherent logical problems in applying that term to an ex-official) former President Obama for his role in authorizing Spygate?

      Plus, the article does not reach the issue I brought up of any such act being a "bill of attainder" or "ex post facto" law forbidden by the same Article of the Constitution. I think that is a very serious problem with the "implicit powers" argument, because it shows that the Founders were aware of the extent Parliament had presumed to "impeach" private citizens with such acts, and they went out of their way expressly to deny Congress (as well as the States) any such power whatsoever.

      Thanks for bringing the article to our attention here.

    2. Michael, somehow my long response to your question eliminated the phrase "(as you yourself pointed out in your previous comment)" following the words "what would stop . . ." at the end of the third paragraph. My apologies.

  9. It appears as of today that the Democrats could care less about the U.S. Constitution. They appear to be full bore on to having a trial in the Senate. I am sure that Trump will get a fully partisan treatment by them since Senator Laehy (D-VT) will be presiding over the trial. If a defense is attempted,the gavel will fall every time the defense starts to speak.

    1. Not only that, BillB, but apparently under Senate Rules, the president pro tempore (Senator Leahy) gets to vote for or against conviction, so he will be not only the Judge and jury, but also the executioner who pronounces sentence.

  10. For discussion's sake here, let's say the Dems allow up front that Trump is no longer in office and the trial is not subject to Constitutional provisions. What would stop them from seeing it through, then declaring that with a simple majority (the VP likely providing the decisive vote) they could pronounce whatever sentence they like?

    1. The principal stumbling block to that happening, Aec, is that the Democrats will need to find at least 17 Republicans willing to join them in convicting Donald Trump of "inciting insurrection", and I just do not see where they will get those votes. The backlash incurred by Liz Cheney to her vote for impeachment in the House is warning enough to all Republican Senators of the consequences of supporting the Democrats in their jihad against Trump.

      That realization may not stop the trial from being staged, and some commentators think that a trial will provide the Democrats with a "win-win" advantage no matter what the outcome. I disagree with that analysis, because I think the backlash against the Democrats for pushing the trial will be just as strong as that against any defecting Republicans.

      That said, even if the Democrats were somehow to get their way, bear in mind that any such judgment of impeachment and disqualification would last only until a future (Republican-dominated) Congress voted to set it aside, or perhaps voted to "impeach" ex-President Obama in retaliation. Such is the nature of political acts -- they have a way of exemplifying the old adage: "What goes around, comes around."

  11. It completely escaped me until now, but how could Alcee Hastings hold a house seat after his impeachment and removal from the bench?

    1. Aec, Hastings was impeached and removed from his position as a judge, as you note -- but the Senate did not go on to vote to disqualify him from future public office, so he was able later to run for and be elected to the House of Representatives.

      Moreover, I agree with scholarly opinion of long standing that the power to disqualify extends only to appointive, and not elective, office. It would place too much power into the hands of a bare majority of the Senate to bind all future voters forever from choosing a candidate who happened to have been previously impeached and disqualified for purely partisan political purposes.