Seth
Barrett Tillman, Lecturer
Maynooth
University Department of Law
National
University of Ireland Maynooth
New
House (#53)
Maynooth
County
Kildare W23 F2H6
Ireland
August 8, 2021
Letters Editor
National Review
letters@nationalreview.com
Re:
Andrew McCarthy, “Impeachment in
New York State,” National Review: The Corner (Aug. 5, 2021, 4:58 PM),
<https://tinyurl.com/e4a5s3bw>.
Dear Editors at The Corner,
Andrew McCarthy wrote: “Conviction [in New
York state senate impeachment proceedings] results in the removal of the
official and disqualification from holding state office in the future—it
is not a disqualification from seeking federal or even municipal office.” There
is one big problem and one lesser problem with McCarthy’s restatement of New
York impeachment law. First, under the state and federal model, the defendant’s
removal form his office (if in office when convicted) flows as an automatic
consequence of conviction by the senate. But, the senate has discretion
in regard to imposing disqualification as an additional punishment. That’s the
big problem.
The lesser problem is that McCarthy
asserts that disqualification is a bar against holding “state office.” He asserts
that this bar does not reach state municipal offices. There is a paucity of
case law, scholarship, and historical precedents in regard to both New York and
federal disqualification, so his determination that municipal positions are
exempt from the disqualification bar is very difficult to understand. Moreover,
the reader will assume McCarthy’s “state office”-language means that Governor
Cuomo, should he be convicted and disqualified, would be barred from holding
the position of governor again. But that too is surprisingly less than clear.
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 United States 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 subsequently sought to hold an
elected position. So contra Andrew McCarthy, one cannot say with any certainty
that a state senate impeachment conviction and disqualification would bar Governor
Cuomo from subsequently holding state elective positions—including the
governor’s office.
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” are successor terminology to pre-revolutionary era British statutory drafting conventions, which used “office … under the crown”-language. The British drafting convention 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 U.S. Constitution’s disqualification provisions did not extend to any elected positions.
Sincerely
/s/
Seth Barrett Tillman
Seth Barrett Tillman, Submitted as a Letter to the Editor at National Review, Responding to Andrew McCarthy’s Impeachment in New York State, New Reform Club (Aug. 8, 2021, 6:53 AM), <https://tinyurl.com/47ht8zp6>;
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