Our problems remain epistemological.

Sunday, August 08, 2021

Letter to the Editor at National Review, Responding to Andrew McCarthy's “Impeachment in New York State”

 

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 Constitutions 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 McCarthys Impeachment in New York StateNew Reform Club (Aug. 8, 2021, 6:53 AM), <https://tinyurl.com/47ht8zp6>;


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