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Saturday, January 09, 2021

The Disqualification Clause

If there is a Senate impeachment trial, one pressing question will be whether the Senate can actually bar the President from serving again as President. (Assuming Section Three of the Fourteenth Amendment does not so bar him.) The issue was raised in the trial last year but was never addressed. Does the Disqualification Clause for impeachment extend to the Presidency?

One thought here is the Chief Justice may be asked, as the presiding officer, to rule on this point. Let's say he does and says that the Disqualification Clause can be applied by the Senate to the presidency. You could understand that as a final judgment that the federal courts may not review. Another thought is that--no matter what the Chief Justice says--the Senate's conclusion on that point is final and may not be reviewed. In other words, whatever arguments there may be against applying the Disqualification Clause to the President, they present nonjusticiable political questions. (Remember only a Senate majority votes on the penalty imposed for a conviction.)


Posted by Gerard Magliocca on January 9, 2021 at 01:01 PM | Permalink


"Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law." Art. I, Sec. 3, cl. 7.

So...what's the argument that it wouldn't apply? The language encompasses all impeachments. I don't see anything contradictory in Art. II, sec. 4. Is it just the fact that Art. II lists only removal from office for executive officers and doesn't expressly mention disqualification? That seems awfully tenuous. Would that mean an impeached executive branch officer also wouldn't be "liable and subject to Indictment, Trial, Judgment and Punishment, according to Law"? What possible policy justifies such possibilities for all impeached officials EXCEPT executive ones?

Posted by: OK, I'll bite | Jan 9, 2021 4:53:12 PM

Interesting. Here we may face certain absurd. For several reasons, but one right now:

On one hand, the Senate tries, simply because it is the closest institution functioning as sovereign tribunal. I quote the supreme court in the case of Nixon ( not the president, but the judge). Here:

The Framers labored over the question of where the impeachment power should lie. Significantly, in at least two considered scenarios the power was placed with the Federal Judiciary. See 1 Farrand 21-22 (Virginia Plan); id., at 244 (New Jersey Plan). Indeed, James Madison and the Committee of Detail proposed that the Supreme Court should have the power to determine impeachments. See 2 id., at 551 (Madison); id., at 178-179,186 (Committee of Detail). Despite these proposals, the Convention ultimately decided that the Senate would have "the sole Power to try all Impeachments." Art. I, § 3, cl. 6. According to Alexander Hamilton, the Senate was the "most fit depositary of this important trust" because its Members are representatives of the people. See The Federalist No. 65, p. 440 (J. Cooke ed. 1961). The Supreme Court was not the proper body because the Framers "doubted whether the members of that tribunal would, at all times, be endowed with so eminent a portion of fortitude as would be called for in the execution of so difficult a task" or whether the Court "would possess the degree of credit and authority" to carry out its judgment if it conflicted with the accusation brought by the Legislature-the people's representative. See id., at 441. In addition, the Framers believed the Court was too small in number: "The awful discretion, which a court of impeachments must necessarily have, to doom to honor or to infamy the most confidential and the most distinguished characters of the community, forbids the commitment of the trust to a small number of persons." Id., at 441-442.

End of quotation:

So, tried by the Senate, would be the closest thing apparently, to a choice made by the people. As such, he wouldn't be able to run again, or hold, any federal office one may argue.

On the other hand, one may argue, that this is not the closest one in this regard. Why? because, effectively, it is not about trying him. The people can't try no one. Yet, they can choose him. Choosing him again. In the next election simply.

In sum, one may conclude from this ruling and citation above, that the people, can't try him, yet, can vote for him again. This is the closest thing, in sovereign terms. This is the wish of the framers.

Senate can convict him, for the people can't. Yet, reelecting him, this is up to the people.

Here to the ruling:



Posted by: El roam | Jan 9, 2021 2:14:13 PM

I find it absurd if it didn't apply but realize it is a fun parlor game to convince oneself by parsing language it should not.

Posted by: Joe | Jan 9, 2021 2:02:19 PM

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