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Tuesday, December 10, 2019

Does the Disqualification Clause Present a Political Question?

The draft articles of impeachment from the House of Representatives call for the President's removal from office and his "disqualification to hold and enjoy any Office of honor, Trust, or Profit under the United States." Does this mean that he can (assuming there is a conviction) be barred from being elected again as President? The answer is unclear. Suppose, though, that the Senate applies the disqualification penalty and says that the presidency is covered. Can this decision be reviewed by a court?

The answer, again, is unclear. The Supreme Court held in United States v. Nixon that the impeachment trial process raises non-justiciable political questions--the Senate has the final word. Is that true in determining the scope of the sentence? You could say so if you think that a sentence is part of the trial. But you can also understand those as separate phrases that should be treated differently. Or you could say that the application of a sentence is different from the lawful scope of a sentence.

Posted by Gerard Magliocca on December 10, 2019 at 01:10 PM | Permalink

Comments

And surly, while no statutory limitation period prescribed of course in the clause.

Posted by: El roam | Dec 10, 2019 2:47:50 PM

There is no real issue here it seems. First, we deal with impeachment. Not for past tenure or office. Surly in the present one, the president is removed. So, what is left, is to exclude any future office. Permanently so. Otherwise, to what it does refer ? If not past one. Surly current one. Then, any office, refers actually to future one. This is the sole reasonable interpretation.

Also, in ordinary court, there is a separate process for sentencing typically, and one for convicting. But here, they are both inseparable. For, it must refer only to impeachment articles. Once found guilty, it means that he is removed as immediate consequence. For, that is what the articles or impeachment dictate. He should be removed if found guilty. That is what the trial is about and the vote in Senate anyway.

So, the Supreme court has no basis in fact in this regard, for exercising, any judicial review.

Also, one should pay attention, to the clause itself ( the relevant part in this regard or in respect to the issue presented in the post) here quoting:

".......... but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law."

That may suggest clearly, that only removal is at issue ( removal from office, the rest,may come ahead in other instances).

By the way, to the draft or the impeachment articles:

https://judiciary.house.gov/sites/democrats.judiciary.house.gov/files/documents/Articles%20of%20Impeachment.pdf

Thanks

Posted by: El roam | Dec 10, 2019 2:41:11 PM

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