An “Absurd” View

 

Dear Professor,

I noticed that you cite Joseph Story in more than a 1/2 dozen of your publications—and sometimes, you cite Story’s position favorably. For that reason, I have attached an extract from: 2 Joseph Story, Commentaries on the Constitution of the United States § 791, at 260 (Boston, Hilliard, Gray, & Co. 1833). You will notice that Story takes the view that the Constitution’s “officers of the United States”-language in the Impeachment Clause (art. II, S. 4) and, apparently, in the Commissions Clause (art. II, S. 3) does not reach the president.

Story takes a similar view with regard to the Constitution’s “Office ... under the United States”-language in the Incompatibility Clause (art. I, S. 6, cl. 2) and the Elector Incompatibility Clause (art. II, S. 1, cl. 2). Id. § 791. The Impeachment Disqualification Clause (art. I, S. 3, cl. 7) also uses the same “Office ... under the United States”-language. Given the linguistic similarity, I do not think it is a reach to say that Story’s position was that the presidency does not fall under the scope of that clause. Likewise, McKnight—a mid-century commentator—said that: “[I]t is obvious that . . . the President is not regarded as ‘an officer of, or under, the United States,’ but as one branch of ‘the Government.’” David A. McKnight, The Electoral System of the United States 346 (Philadelphia, J.B. Lippincott & Co. 1878) (emphases added).

As to the normative basis for excluding a disqualified defendant exclusively from appointed federal positions, but not from elected federal positions, that too can be explained:

The disqualification clause of punishment was evidently put in for the purpose of making the power of removal by impeachment effectual. After providing that the officers of the United States might be removed on impeachment, although the President could not pardon the offender convicted and removed, yet if he could reinstate him the next morning he would have substantially the power of pardon. To prevent this was the object of the disqualifying clause; which Story says is not a necessary part of the judgment. You might impose it where you had removed an officer appointed by the President whom the President could reinstate. You could stop that by fixing disability upon the officer; and that I take to have been the sole purpose of this clause.

3 Asher C. Hinds, Hinds’ Precedents of the House 318 (1907) (quoting Mr Carpenter, counsel for Belknap—a defendant in impeachment proceedings before the Senate).

I do not suggest that the authorities above conclusively settle the issue. And, I suppose you disagree with my view, with Carpenter’s view, with McKnight’s view, and with Story’s view. But is their (and my) view as to the scope of the Impeachment Disqualification Clause’s “Office ... under the United States”-language really an “absurd” view?

Sincerely,

Seth Tillman

Seth Barrett Tillman, An “Absurd” View, New Reform Club (May 12, 2023, 4:45 AM), <https://reformclub.blogspot.com/2023/05/an-absurd-view.html>;