Letter to the Editor at The Washington Post, Responding to Amber Phillips’s “How Andrew Cuomo’s impeachment in New York will work”

August 6, 2021

 

Letters Editor

The Washington Post

letters@washpost.com

 

Re:     Amber Phillips, “How Andrew Cuomo’s impeachment in New York will work,” The Washington Post, August 5, 2021.

 

Dear Letters Editor,

Ms Phillips wrote that: If Governor Cuomo is convicted by the state senate, then “the impeachment court can take an additional step and bar him from serving [in] public office in New York again.” That’s not quite right.

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 to hold an elected position. So contra Amber Phillips, one cannot say with any certainty that a state senate conviction and disqualification would bar Governor Cuomo from subsequently holding state elective positions. Moreover, there is no doubt that conviction and disqualification in state impeachment proceedings would leave Cuomo eligible to hold any federal position: President, Vice President, member of the United States Senate or House—from New York or any other state, and any federal appointed position.

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. Such language did not reach elected positions (eg, Members of Parliament) or other apex positions (eg, the King), but only reached appointed positions. 

Sincerely,

/s/

Seth Barrett Tillman 

Seth Barrett Tillman, Submitted as a Letter to the Editor at The Washington Post, Responding to Amber Phillips’s How Andrew Cuomo’s impeachment in New York will work, New Reform Club (Aug. 6, 2021, 10:34 AM), <https://reformclub.blogspot.com/2021/08/responding-to-amber-phillipss-how.html>.