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Originalism: the constitutionality of impeaching ex-presidents

Originalism: the constitutionality of impeaching ex-presidents

This article first appeared in the Federalist Society Blog

Recently I’ve pivoted from 38 years of writing books and law review articles to spending most of my time on public constitutional education—particularly op-eds, radio, and television. (I have long experience with all three media.) As you can imagine, the controversy over the second impeachment of former President Donald Trump kept me very busy.

Most of my interviews were on conservative radio and TV programs. I frequently had to explain to unhappy hosts and their audiences that, whatever they had heard elsewhere, impeachment of a former president was not clearly unconstitutional, and that there is good faith disagreement on whether it is.

Why is there disagreement? At this point, the evidence is conflicting and inconclusive. Perhaps it is terminally inconclusive, but I’m not convinced of that yet. New probative material on constitutional questions still surfaces from time to time. Moreover, most impeachment commentary seems to suffer from the handicap of being politically-driven. It often appears around the time a president has been, or is about to be, impeached, and the author writes to cheer on, or pan, the procedure. In such circumstances, the temptation is to seek pleasing evidence and overlook displeasing evidence. Material previously adduced passes through a distorted lens, and is distorted by the passage.

Legal scholars should re-examine the constitutionality of late impeachment when the subject has become a matter of public indifference—when no prospective impeachments are in sight and scholars can work behind a veil of ignorance about the future. Admittedly, it will then be harder to convince student law review editors to accept impeachment articles: The subject will no longer be “hot.” But the product will be better, and more long-lasting.

In this post, I offer a method for proceeding when we reach that time.

I find it useful to approach constitutional interpretation from the standpoint of a hypothetical judge or lawyer construing the document immediately after its ratification. Depending on the nature of the problem, one might choose May 30, 1790, the day after Rhode Island ratified. Or one might select December 16, 1791, the day after ratification of the Bill of Rights.

Of course, before you can play founding-era judge or lawyer, you have to know how founding-era judges and lawyers interpreted legal documents. After all, the Founders designed the Constitution to be construed by their own interpretive conventions, not by ours. During the debates over the Constitution they often referred to those conventions, even in materials written for the general public. Examples are Alexander Hamilton’s reference to negatives pregnant in Federalist No. 32 and James Madison’s allusion to the presumption against surplus in Federalist No. 41.

In general, 18th century documentary interpretation was similar to our own. But there were some refinements. The lodestar of documentary interpretation was the “the intent of the makers.” Just as the “makers” of a statute were the legislators who adopted it rather than those who drafted it, the “makers” of a constitution were the ratifiers rather than the framers—although sometimes, as in the case of the 1776 Virginia constitution, they were the same people. Judges and lawyers divined the “intent” behind a document by employing, in an established way, both what we call “original meaning” and “original understanding.”

Eighteenth century judges and lawyers used many of the same canons of construction we use today, but they held them in far greater respect. As Wood’s Institutes noted, the canons were “of the same Strength as Acts of Parliament.”

One of the more significant maxims was Designatio unius est exclusio alterius—the designation of one is the exclusion of the other—which also was expressed in other forms. Because the Constitution’s text contains many lists, Designatio unius is particularly important for constitutional interpretation. The founding generation explicitly recognized its power by ratifying an amendment (the Ninth) to prevent it from being applied to the document’s enumeration of rights.

With that background, I imagine myself as a judge in late December 1791, and I am presented with this question: May an officer be impeached and convicted after he has left office? In keeping with the established procedure of the time, I turn first to the document itself. I see these two clauses:

  • “The House of Representatives . . . shall have the sole Power of Impeachment.” Article I, Section 2, Clause 5.
  • “The Senate shall have the sole Power to try all Impeachments.” Article I, Section 3, Clause 6.

In these phrases, the word “Impeachment” is not modified in any way. As an informed citizen, I know that late impeachment is practiced in Britain (Edmund Burke’s prosecution of Warren Hastings continues to drag on), and that late impeachment is authorized explicitly by some state constitutions. Perhaps the U.S. Constitution’s use of “Impeachment” is broad enough to include procedures against individuals who have left office.

I scan down the document and see a few other clauses mentioning impeachment, but none seems relevant until I come to this one:

  • 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. Article II, Section 4.

The clause contains two lists.  Unless a list is exempted by the Ninth Amendment, I normally would construe it using the designatio unius maxim.

One list enumerates the grounds for impeachment: “Treason, Bribery, or other high Crimes and [high] Misdemeanors.” (In 18th century law, “high misdemeanor” was a term of art for a serious crime not meriting the death penalty. Notice that the list contains one example of a high crime, treason; one example of a high misdemeanor, bribery, and a general clause covering offenses in both categories.) Everyone seems to agree that this list of grounds is exclusive. That renders the scope of impeachment narrower than in Britain or in some states.

The other list itemizes who can be impeached: “The President, Vice President and all civil Officers of the United States.” The designatio unius maxim suggests this list, too, is exclusive. There seems to be general agreement that it bars impeachment of private citizens who have never held office—another limitation on British practice. Why shouldn’t it bar impeachment of private citizens who have held office?

Strengthening the inference that it does, is another legal maxim, Generalibus specialia derogant (also expressed in other forms). This means “the specific restricts the general.” The specific lists in this clause seem to restrict the scope of the word “impeachment” appearing in the earlier phrases “sole Power of Impeachment” and “try all Impeachments.”

Thus, the text, when read through 18th century eyes, implies that there are only four grounds for impeachment and conviction, and only three classes of persons who can be impeached and convicted. Those three classes are (1) the president, (2) the vice president, and (3) civil officers of the United States. (This is one of several indications that neither the president nor the vice president is a civil officer of the United States; another is the Commissioning Clause, Article II, Section 3.) Because former officers are not listed, the House and Senate have no jurisdiction over them.

Interpretive canons serve as constructive evidence of the “intent of the makers” because they embody how people usually act and think when they write and subscribe legal documents. A canon of construction creates a presumption as to their intent. However, the presumption is rebuttable by competing evidence of intent.

I don’t think a canon is a “bursting bubble” presumption, because a document’s structure and language are entitled to durable weight as evidence of the makers’ understanding. So if the outside evidence turns out to be evenly balanced in each direction, the presumption prevails. Put another way, the burden of proof is on those who argue that late impeachment is constitutional.

What kind of outside evidence should we consider? In the second Trump impeachment trial, the House managers cited the 1876 impeachment of Secretary of War William Belknap. But that event is far too late to shed light on the “intent of the [Constitution’s] makers.” Moreover, the case is ambiguous: A majority of the Senate voted that it had jurisdiction, but a minority sufficient to prevent conviction voted the other way.  I don’t think that the abortive 1797 proceedings against Senator William Blount are helpful, either. They also are ambiguous, because the Senate dismissed the charges for either or both of two reasons. More importantly, those proceedings took place several years after the ratification by (mostly) different actors working under different incentives and motivations.

More probative material includes state constitutions predating the U.S. Constitution; public comments by the Constitution’s drafters and ratifiers; contemporaneous commentary; contemporaneously-available parliamentary, legislative, and legal sources; and widely known events, such as the Hastings impeachment.

Of course, when seeking material to rebut the presumption, the researcher must be willing to receive evidence that reinforces it. For example, although some state constitutions explicitly recognized late impeachment, the constitutions of New York and Massachusetts are (pace House manager Rep. Jamie Raskin) best read as prohibiting it. That is especially significant because the constitutions of those two states provided much of the language for the U.S. Constitution’s impeachment provisions.

Again, my purpose is not to answer the question of whether late impeachment is permissible. My purpose here is to suggest a framework for answering the question, as follows:

First, acknowledge that the Constitution’s language creates an evidentiary presumption against late impeachment. Next, go outside the document to collect contemporaneous evidence of meaning/understanding. Finally, determine if the weight of that contemporaneous evidence is sufficient to rebut the presumption created by the text.

Rob Natelson