A Review of the Precedents for "Impeachment" Ex Post Facto

 The sycophant media have rushed to report that Speaker Nancy Pelosi has at last sent her single, desultory  "Article of Impeachment" to the Senate for a trial.

Sic transit gloria mundi -- or, more specifically, "how low can the sun sink after already having sunk on the American republic?"

The deluded and foolhardy majority in the House of Representatives, in other words, wants to exercise its Constitutional power of impeachment (to call for the removal of a federal official from office) after the fact --- against a private citizen who no longer holds any federal office. 

Is there any precedent at all for this sort of thing? Let us travel back in time to see . . .

Set the time machine dial back 1,124 years, shall we, to January 897? Look what happened then to the hapless former Pope Formosus, in the notorious "Cadaver Synod":

. . . Nine months after Formosus died, his body was exhumed and made to sit on a throne so that he could face the charges levied against him by the then Pope Stephen VI. Dressed in all the fineries of papal vestments, Formosus faced accusations of perjury, coveting the papacy as a layman, and violating church canons while he was pope. Defended by a mere deacon and obviously incapable of defending himself, the dead Pope was found guilty on all counts.

             . . . 

Formosus was found guilty. He was literally stripped of his robes and deprived his title as pope. Then they cut off the three fingers he used to bless people and reburied the naked corpse in a commoner’s grave. 

And just how did the public take to his treatment at the hands of Pope Stephen VI? Read on:

This was all too much for the people, already sick of the intrigues of the Church. They demanded Stephen VI be removed and a proper pope be instated. Stephen VI was thrown in jail and later strangled in August 897.

That was then -- and so we move forward in time, to the infamous "Lollard" precedent, of John Wycliffe:

John Wycliffe was the most famous priest of his day. His learning was immense. He had been a leading scholar at Oxford and a chaplain to the King of England. More to the point, he spoke out boldly against the errors of the popes, the organizational hierarchy of the Roman Church, and the corruption of the clergy in his day. . . .

If the people in England were to know the truth, Wycliffe reasoned that they must have the Word of God in their own language. Under his direction, the Bible was translated into English for the first time, although the job was not completed by his associates until 1395, eleven years after his death. . . .

John Wycliffe died of his stroke on the last day of the year [1384]. The religious authorities had never excommunicated him because they feared public opinion--the people loved John and his fame was international. So he was buried in consecrated soil. But about thirty years later, the Council of Constance revenged itself on his criticism by condemning his teachings and ordering his bones to be dug up and burned. 

But the burning of such a man's bones could not end his influence. As John Foxe said in his book of martyrs, "though they dug up his body, burnt his bones, and drowned his ashes, yet the Word of God and the truth of his doctrine, with the fruit and success thereof, they could not burn; which yet to this day...doth remain."

So, once again, we do not have a favorable precedent. Fast forward to the case of Oliver Cromwell, in 1661:

Following [King Charles I]'s execution in 1649, the Commonwealth of England was introduced to replace the monarchy, and [Oliver] Cromwell became Lord Protector, a role in which he remained until his death five years later. Cromwell was succeeded by his son as Lord Protector, but he did not last long, and was overthrown by the army a year later. 

The monarchy was restored [in 1660] and Charles II became the new king. Immediately after gaining power, King Charles II ordered the arrest and trial of all who played part in the overthrowing of the monarchy. Of the 59 who signed the death warrant, several were hanged while others were imprisoned for life. Even those who had died were not spared. Several had their body exhumed and reburied in communal burial pits, but Oliver Cromwell and three others—John Bradshaw, the judge who was president of the court, Henry Ireton, a general in the Parliamentary army and Cromwell's son-in-law, and Robert Blake, a military commander—were awarded death sentences.

Cromwell's body was to have a special fate, illustrated in part below: 

On the [twelfth] anniversary of King Charles I’s death, Cromwell's body was exhumed from Westminster Abbey, and his disinterred body was hanged in chains at Tyburn. In the afternoon, the body was taken down and beheaded. Cromwell’s head was then placed on a 20-foot-tall wooden spike and raised above Westminster Hall where it remained for nearly twenty five years. For the next two centuries, the dismembered head rolled through the possession of many until it was given a dignified burial in a secret place at Sidney Sussex College, Cambridge, in 1960.

The posthumous punishment of Oliver Cromwell thus extended for almost three hundred years.  

Surely the House Democrats, and the members of the Senate, ought to have these (and other -- see the case of Gilles van Ledenberg at the previous link) precedents well in mind as they deliberate the solitary ex post facto bill brought against former President Trump. For there was, and is, no single example that your exacting Curmudgeon could exhume (pardon the expression) from the dustheap of history that resulted in a positive public regard for any judges (or executioners) who presumed to proceed in their cases after the fact.

Now, granted -- Donald John Trump is still very much among the living, and nothing the current Congress may do can alter that, despite the extraordinary powers to which it may try to lay claim. But its very attempt to assert such powers ex post facto brings discredit upon those who are so basely motivated. 

Ours is a government of laws, not men, despite how glum the present may appear to some. There is not one on the scene thus far, thank God, who proposes to rewrite, or replace, the Constitution. Its prohibition against ex post facto laws and bills of attainder, both as to Congress and the several States, remains intact.

That said, nothing ever stopped politicians from making fools of themselves in public: just witness the examples I have adduced above. 

May history record their folly in full. And may the rest of us resist to the fullest their contempt for the very words of our Constitution. 

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 post, this 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.]

The Democrats' Dilemma

In this post, I want to draw out some logical consequences of the Democrats having prevailed in the face of the multiple challenges to their majority in the Electoral College. I proceed in a series of logical steps:

1. The US Constitution does not address what happens if a President elect, as selected by the Electoral College, resigns or becomes incapacitated before his term of office, under the 20th Amendment, begins at noon on January 20 of the year following a presidential election. In either event, the President elect would not take the oath of office, and so would never become the President. That office would remain vacant until filled by some other procedure — but what law instructs us as to how that is to be done? 

2. Section 3 of the 20th Amendment provides for the replacement of the President-Elect by the Vice President-Elect, but only in the event the President-Elect dies before assuming office: 

If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. 

3. That same Section goes on to specify: 

If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified. 

4. Those provisions, however, would not appear to address the situation where a duly elected President elect, having been chosen before his term was to start, resigns or becomes mentally incapacitated before January 20. In either of those events, it is not a case of the President elect’s having failed to qualify for office before the start of his term, although perhaps such an argument could be made. The better interpretation of the verb “qualify”, however, would be as referring to a temporary inability, as of January 20, to meet the express qualifications for the office of President (e.g., not having attained the age of 35 before January 20, as opposed to not being a native-born citizen, which would be a permanent disqualification) —- some such inability that can, and perhaps soon will be, cured in due time. But in the case of resignation, instead, the elected candidate declines to assume the office, as is his right in a free country; and in the case of becoming mentally unfit, he becomes incapable of performing the office. 

5. Neither does the 25th Amendment address the hypothesis of the resignation or incapacitation of a candidate-elect before actually assuming office. It speaks only to those who already occupy the offices of President or Vice President (i.e., who have taken the prescribed oaths), not to those who have yet to assume those offices and who have yet (or who are unable) to take the oaths. 

6. Finally, 3 USC Section 19 would also appear to fail to address the situation of any candidate-elect resigning or becoming incapacitated before assuming office. It begins as follows: 

If, by reason of death, resignation, removal from office, inability, or failure to qualify, there is neither a President nor Vice President to discharge the powers and duties of the office of President, then the Speaker of the House of Representatives shall, upon his resignation as Speaker and as Representative in Congress, act as President. 

That statute is on the books by virtue of the authority granted to Congress by Section 3 of the 20th Amendment, quoted above. But by the terms of that Amendment, it applies only to cases where a “president shall not have been chosen” (emphasis added), which would not be the case under the assumptions made here, or it applies to cases where “the President elect shall have failed to qualify” (emphasis added), which just takes us back to the discussion in ¶ 4 above. There does not appear to be any predicate for that provision to kick in where a President elect is incapacitated or otherwise unable to be sworn in. 

7. The only language that could arguably be read to apply to the situation of a President elect’s resignation or permanent incapacity between the confirmation of his election and January 20 would appear to be the following original language in Article II, Section 1, clause 7 of the Constitution, which dates back to 1789: 

In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President . . . 

Let us see how such a scenario would work out. Assume the following: 

8. As happened on December 14, the electors met in the various state capitals, and a majority (more than 270) cast their votes to elect Joe Biden as President, and Kamala Harris as Vice President. And on January 6, Congress confirmed those results, making Joe Biden the official “President elect”. 

9. Between January 6 and January 20, 2021, however, Joe Biden either voluntarily resigns as President elect, or becomes permanently incapacitated (i.e., has a totally disabling stroke, or goes into a coma from an accident, or becomes senile, or unable to speak, or suffers some similar serious disability). What happens then? Who is inaugurated as President on January 20, 2021? 

a. Does Kamala Harris automatically become President? By which constitutional provision, or federal statute? See above — there is no amended constitutional provision or statute that covers that precise situation. 

b. Nevertheless, let us assume that Kamala Harris steps up and demands that she be inaugurated as President on January 20, 2021, since (as she argues) the Vice President replaces the President in cases covered by Art. II, Section 1, Clause 7 of the Constitution, which remains in effect except only to the extent it was amended by the 25th Amendment quoted earlier. She argues — cogently, I would contend, that the “Resignation, or Inability to discharge the Powers and Duties of the . . . Office,” of either the President or of the President elect amounts to the same thing, because there is no one otherwise authorized to act in such a case except for the Vice President, who will have by then assumed office without challenge or disability. (There is no ability to provide for the appointment of a replacement VP elect, since any actual Vice President has to await appointment as specified in Am. 25, Section 2 -- see below.) She also would cite to Section 1 of the 25th Amendment, which is roughly to the same effect. (“In case of the removal of the President from office or of his death or resignation, the Vice President shall become President” -- but see the even more comprehensive provision in Art. II, Section 1, clause 7 of the original Constitution, quoted above.) 

10. So what are the consequences of Vice President elect Harris becoming President as of January 20, 2021 — or at any later time before the next presidential election? 

a. The first consequence is that she no longer will preside over the Senate. 

b. A second consequence will be that there will be no such presiding officer (apart from an agreed president pro tempore, chosen by seniority among the existing Senators) until a replacement Vice President is nominated by (now) President Harris and approved by a majority of both Houses of Congress (Am. 25, Section 2): 

Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress. 

c. But if Harris assumes the office of President as of January 20, 2021 or later, who will control the voting in the Senate, without her authority under the Constitution to break tie votes? Consider: If the Republicans, as now appears likely, lose both of the Georgia Senate elections, then the Democrats will have a 50-50 balance in the Senate, and (in a Biden administration) they could count on Vice President Harris to act as tie-breaker in the event of any stalemate or tie. 

d. But if (in the scenario assumed above) VP Harris becomes President Harris on January 20 (or later), then she will no longer be able as of that date to resolve 50-50 ties in the Senate; nor will the Democrats in the Senate be able to resolve such disputes, since they will have to await the appointment of a new VP to decide tie votes. The Senate would likely agree upon a presiding officer pro tempore, but that person could not resolve any 50-50 ties, because he or she will necessarily be one of the 50 votes on whichever side is his or her party. 

e. The Senate could thus be deadlocked indefinitely over the approval of a person appointed by Harris as her Vice President, so long as none of the 50 Republicans (e.g., Collins, Murkowski or Romney) defects, and so long as all 50 Democrats adhere to their party’s line. 

11. Now you can begin to appreciate the pressure the Democrats will be under to keep Biden functioning as President for as long as he is physically up to the job (and perhaps even if he becomes incapacitated: remember how Edith Wilson kept the truth about her stricken husband from the public for seventeen months, until his second term ended in March 1921). 

12. But the Democrats will still be in a “Catch-22”: they cannot arrange for Kamala Harris to assume the presidency without losing, possibly until the end of Biden’s term, the ability to designate a Vice President who will be able to resolve any tie votes in the Senate.