Seth Barrett Tillman, Lecturer
August 10, 2021
Re: Keshia Clukey, “What to Know About the Bid to Impeach New York Governor Andrew Cuomo,” Bloomberg—QuickTake, 9 August 2021, 22:23 GMT+1 (Update).
Dear Letters Editor,
Ms Clukey wrote that: “A conviction [by the state senate] would require approval by two-thirds of the senators and judges in attendance. They could also take the further step of disqualifying [Governor] Cuomo from further public service.” But that is not quite correct.
There is no doubt that conviction and disqualification in state senate impeachment proceedings would leave Cuomo eligible to hold all federal positions: including both [i] any elected federal position, e.g., President, Vice President, member of the U.S. Senate and U.S. House of Representatives, from New York or from any other state, and [ii] any appointed federal position. It is unclear if disqualification in state senate impeachment proceedings extends to municipal posts—elected or appointed—or if it extends to state civil service positions.
More importantly, it is not clear that conviction and disqualification in state senate impeachment proceedings would bar Cuomo from subsequently holding elected state positions, including the governor’s office. Under Article VI, Section 24 of the New York state constitution (1894), disqualification extends to “any public office of honor, trust, or profit under this state.” This language first appeared in the New York Constitution of 1821. The state provision is based on analogous language in the United States Constitution (1787). Under Article I, Section 3, Clause 7 of the U.S. Constitution, disqualification extends to “any Office of honor, Trust or Profit under the United States.” Unfortunately, neither the state courts of New York, nor the federal courts have meaningfully opined on the scope of either the state constitution’s or the federal constitution’s disqualification provision. Nor are there any New York state or federal historical precedents where a disqualified former officer sought post-disqualification to hold an elected position. So contra Keshia Clukey, one cannot say with any certainty that a state senate conviction and disqualification would bar Governor Cuomo from subsequently holding state elective positions.
What is clear is that disqualification would act as a bar in regard to holding appointed state positions. This language of “office … under the United States” and “office … under the state” is successor terminology to a pre-revolutionary era British statutory drafting convention, which used “office … under the crown”-language. Such language did not reach elected positions (eg, Members of Parliament) or other apex positions (eg, the King), but only reached appointed positions. That is some good reason to believe that the very similar language appearing in the New York Constitution’s and in the U.S. Constitution’s disqualification provisions did not extend to any elected positions, but only barred the defendant from subsequently holding state appointed positions.
Seth Barrett Tillman, Submitted as a Letter to the Editor at Bloomberg, Responding to Keshia Clukey's “What to Know About the Bid to Impeach New York Governor Andrew Cuomo,” New Reform Club (Aug. 10, 2021, 6:44 AM), <https://reformclub.blogspot.com/2021/08/letter-to-editor-at-bloomberg.html>;