NRO’s Byron York has done exemplary reporting (see here and here) on the scandalous prospect that Rep. Alcee Hastings (D-FL) may become the next chairman of the House Intelligence Committee, despite the fact that in 1988-89, he was impeached by the House and convicted by the Senate for misconduct as a federal judge. I would make one rather trivial correction of something that I think Byron has slightly wrong. Trivial, but not uncomplicated, as we’ll see.

In both his articles, Byron notes that the terms of Hastings’ conviction, while resulting in his removal from office as a judge, did not extend to disqualifying him from holding other public offices in the future. What Byron has in mind, I’m sure, is the clause of the Constitution that says: “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” (Article I, section 3, clause 7). Removal from office is the minimum punishment the Congress has ever imposed-else why impeach at all? But it seems to be accepted that the further disqualification from future officeholding is an optional punishment. Hence, if that additional penalty was not imposed, that would explain why Hastings was eligible to serve in Congress after his removal from the bench. Right?

Not exactly. It is far from clear that a conviction on impeachment charges, even with the disqualification from future officeholding explicitly imposed in addition to removal, could keep an otherwise qualified person from serving in Congress. The words “office” and “officer” are used throughout the Constitution, with almost perfect consistency, to refer to the functions and functionaries of the executive and judicial branches (or to the military), but not to the legislative branch. I say “almost perfect consistency” because there are just two references in the Constitution to “officers” within Congress itself: “The House of Representatives shall chuse their Speaker and other Officers” (Art. I, § 2, cl. 5) and “The Senate shall chuse their other Officers” (Art. I, § 3, cl. 5). These “officers” of the House and Senate have no constitutional standing outside their respective chambers other than as ordinary “members” of Congress, and “members” is the word used everywhere else in the Constitution to refer to legislators in general. Wherever the word “office” is used in reference to the government of the United States, the context usually indicates service in the executive or legislative branch. The clinchers are these three clauses:

1. “[N]o Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector” for purposes of the electoral college choosing the president (Article II, section 1, clause 2). This clearly differentiates between members of Congress and holders of any “office of trust or profit,” in almost exactly the same language as is used in the disqualification language of the Article I impeachment clause quoted above.

2. The president “shall Commission all the Officers of the United States” (Article II, section 3). But the president issues commissions only to military, executive, and judicial officers, who can do nothing official until they receive them, whereas members of Congress take an oath of office administered within their respective houses and commence immediately upon their duties without a scrap of paper from the president. So members of Congress must not be “officers” of the United States.

3. “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors” (Article II, section 4). This is the principal impeachment clause outside Article I, and its reference to “all civil Officers” is only to executive and judicial branch officials, not to military officers, who are not “civil” and are subject instead to court-martial, nor to members of Congress, who are subject instead to expulsion by their colleagues in each house (see Article I, section 5, clause 2).

The long and the short of it is that, even if the House had demanded and the Senate had imposed on Alcee Hastings the constitutionally available punishment of disqualification from future officeholding when he was removed from his judgeship, he would still have been eligible to serve in either house of Congress if duly elected, and if his “qualifications” were assessed as meeting the constitutional requirements at the time of his entry into Congress (see Article I, section 5, clause 1). It is not open to the Congress to decide, in advance of someone’s election, that he is “disqualified” from membership in either house, even the disgraced or criminal judge who has been removed from the bench.

Could the House or Senate decide, at the moment someone arrives as a member-elect to be sworn in, that his criminal or unethical past may justify barring him from membership as unqualified? I think it could, under the last clause I cited, but this would not have any necessary connection to someone’s past impeachment, which could have no automatic bearing on the question. The Supreme Court disagrees with me, though, in its decision in Powell v. McCormack (1969), in which it held that the House could not refuse to swear in the duly elected Adam Clayton Powell, Jr. when he met all the age, citizenship, and state residency requirements that the Constitution imposes for House service. It could swear him in and then expel him, but it could not decline to seat him in the House as an initial matter. I think Powell was wrongly decided, but in any event it underscores the mistake in thinking that a conviction on impeachment charges could ever, in itself, affect eligibility to a seat in Congress.