I was, I must say, mystified by this, the linchpin of D&Y’s article:
Article II of the Constitution declares that “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.” Impeaching a former official flatly contradicts this wording.
I mean no disrespect, but it appears that D&Y don’t know what “contradict” means. What it means is to “take issue” with something by “assert[ing] the contrary” of it, or “to imply the opposite or the denial of something.” (A “contrary” is “a fact or condition incompatible with another,” or “a proposition so related to another that they both may be false” — irrelevant for our purposes — “but they cannot both be true” — i.e., the truth of one is incompatible with the truth of the other.)
What’s that you say? This is terribly boring and it’s time for some droll elucidations? Well, if you insist.
Let’s say the Senate took an exam on the Constitution and you’ve graded it and you’re handing the tests back. (A lot of the senators failed, I’m sorry to report.) You say: “Senators with last names that begin with the letters A through M, to the front of the chamber, please!” Have you contradicted the instruction that N-through-Z’s shall come to the front of the chamber? No, you haven’t — maybe you’ll call them up next. Have you contradicted the instruction that N-through-Z’s shall go to the back of the chamber? No, you haven’t — maybe your assistant will call them there next. But have you contradicted the instruction that L-through-Z’s shall go to the back? Yes, you have — you can’t have L’s and M’s going to both the front and the back. Those situations, as well as the instructions bringing them about, are incompatible.
Now if you keep that in mind and look again at the constitutional text that D&Y think contradicts late impeachment trials, you’ll see that it does no such thing. A statement that the president, the vice president, et al. shall be removed and disqualified if convicted does not assert or imply that former officials may also be disqualified. But neither does it contradict it. Both options are compatible with the text.
Of course, the Constitution’s text also does not contradict the claim that any senator voting to convict shall be given a pony ride and a certificate of commendation. But it would be absurd to read the Constitution as meaning that. An unasserted, not-implied claim may be more or less plausible in light of what is asserted.
This is related to the distinction they draw in linguistics and philosophy of language (which to be honest I don’t know that much about, since I’m just a hack opinion writer) between “semantics” and “pragmatics.” Semantics concerns the denotative meanings of words and assertions. Pragmatics concerns meaning that goes beyond the denotation and depends on the circumstances of utterance. Let’s say I’m driving back from Mexico with Cocaine Mitch, me behind the wheel, him riding shotgun, trunk full of luggage. The speed limit is 70 but Mitch looks over at the speedometer, sees I’m doing 90, and drawls: “Hey man, you’re doing 90.” What this means semantically is: Hey man, you’re doing 90. But what it means pragmatically is: Slow down, you reckless fool. Not: Speed up. And not: My, what a beautiful saguaro over there. Slow down makes sense — the best possible sense — in the circumstances of utterance (though I suppose Mitch could also mean: Want to give Baja racing a try?). Speed up and What a beautiful saguaro don’t make any sense at all.
Since we can’t answer the question of late impeachment trials semantically from Article II — Allowed and Not allowed are both compatible with the text — what sort of pragmatic sense might we make of the Constitution?
What we should do is ask what the Framers were trying to accomplish — what their purpose was. Their purpose in Article II was: Hey, let’s set up an executive branch. Their purpose in Section 4 was: Hey, let’s specify when it is that dangerously rotten officials get booted early out of office. So it only stands to reason that they’d write Section 4 in a way that referred to current officials. It wouldn’t have been natural for them to talk about former officials, because what they were doing was providing the rules of operation for actual, not former, executive officialdom. But that hardly means, even pragmatically, that they opposed the conviction and disqualification of former officials. Why should they be taken to have opposed something that wasn’t relevant to what they were doing in Article II?
They did, however, say something elsewhere that has pragmatic significance concerning the trial of former officials. In Article I, Section 3, they wrote that “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.” D&Y concede that this text is “not clear” — that is, semantically ambiguous — as to whether former officials may be disqualified after they have left office. But, again, ask what the Framers were doing. Their purpose here was: Hey, let’s spell out the permissible consequences of conviction. One of the things they decided was: Hey, let’s make it possible for Congress to stop a dangerously rotten official from ever, ever, by golly we mean ever, holding office again. And — as so many others have noted that I won’t even bother to cite anyone — that purpose would have been defeated if dangerously rotten officials had been allowed to escape disqualification just by resigning from office before they could be impeached and tried; or by — I have not seen this mentioned, but probably it has been — delaying their worst conduct (of an election-stealing variety, say) until there wasn’t much time left to get rid of them. So it only stands to reason that the Framers should be read as having meant, pragmatically, that former officials may be disqualified. Otherwise our reading will undermine the very purpose that the Framers had in mind when they allowed disqualification. (I believe this type of consideration is referred to in legal-scholarly circles as a “functional” argument — an argument derived from considerations of the Constitution’s function — but I’m not totally sure since I’m just a hack opinion writer.)
Now if I were a senator who wanted to be a right honorable textualist/originalist, I would certainly give more weight to the just-presented pragmatic/functional consideration than I would to any speculations about the possible consequences of reading the Constitution to allow late impeachment trials. The reason I’d do that is that the pragmatic/functional consideration, though not denotative, is still rooted in the text of the Constitution as examined in the light of the Framer’s evident intentions. Once we start fretting over D&Y’s “parade of horribles” (as Ramesh put it), we’re not really interpreting the Constitution anymore. We’re just doing politics and pretending it’s constitutional law.
Some of what I’ve said here also applies, mutatis mutandis, to John Bolton’s comments on Article II, Section 4. He too thinks late impeachments are unconstitutional. Again, no disrespect intended to a writer I admire, but I find Bolton mystifying as well. Instead of “contradict,” his word is “meaningless”: “Trump obviously cannot be removed from office if he no longer holds it, which would render this provision of the Constitution meaningless.” Now if the text semantically forbade late impeachment trials, then interpreting it to allow the late impeachment trial of Trump would give the text a self-contradictory meaning, and so in a sense render it meaningless. But the Article II text is indeterminate on the matter of late impeachments, because it simply does not speak of them. So we’ll have to look elsewhere — namely Article I, Section 3, and its evident purpose. And then, in good textualist/originalist spirit, we’ll conclude that the functional logic–cum–pragmatic context of the Constitution permits late impeachment trials.
As for Bolton’s “Trump obviously cannot be removed from office if he no longer holds it,” this just begs the central question of whether former officials may be disqualified from office.
Bolton makes one other argument:
Article I provides that “when the President of the United States is tried, the Chief Justice shall preside.” Former presidents are not mentioned, so the better view is that Chief Justice John Roberts should soon decide that he will not preside over the Senate trial.
But the clause’s real importance is in the light it sheds on the fundamental jurisdictional issue of whether post-incumbency impeachment trials are permissible at all.
If fairness to an impeached incumbent president, in the extraordinary circumstances of a Senate trial, requires the chief justice to preside, why doesn’t fairness also require the chief to preside after a president leaves office? Did the Framers believe that it was acceptable to be less fair to a former president — as many would say if Vice President Kamala Harris or Senate President Pro Tempore Patrick Leahy presided? The only logical conclusion we can draw from this dilemma, reinforcing the points made above, is that there is no constitutional warrant here for a Senate trial.
On the matter of whether Chief Justice Roberts should have chosen to preside, I have no view. But to the point about fairness I think there is a good functional answer, which Andrew C. McCarthy has already given. Andy writes:
In terms of the trial’s public legitimacy, . . . leaving it to the Senate created an obvious problem: The presiding officer of the Senate, the vice president of the United States, would have a conflict of interest. If the president were impeached and removed, the vice president would accede to the presidency. Thus the vice president would have a motive to influence the trial in favor of conviction.
It is to avoid this specter that the Constitution provides for the chief justice’s participation. The role is more ceremonial than substantive. The Senate retains plenary authority over impeachment and may overrule the chief justice (just as in non-presidential impeachments, in which the chief justice has no role, the full Senate may overrule the presiding official).
Unlike an incumbent president’s impeachment trial, a Senate trial of former President Trump would present no conflict of interest for the current vice president. Trump is out of office. Were he convicted, it would have no effect on Vice President Kamala Harris. President Biden would remain president.
So there you have it: The crucial consideration is not “fairness” (a vague notion in Bolton’s deployment of it) but the avoidance of a conflict of interest.
Wouldn’t it be nice if the Republican senators who don’t want to hold a trial, each and every blessèd one of them, bothered to explain why the Constitution (supposedly) doesn’t allow them to? Or at least told us whose explanation they have found most persuasive, which arguments they are accepting? Is it too much to ask that they reason with their disagreeing colleagues, and the public at large, on a matter of such importance? Instead of just having some secretive lunch with Jonathan Turley, harrumphing the word “unconstitutional,” and trying to shut the whole thing down? It’s almost like they don’t even care about the Constitution and just wanted to pull a political stunt in service of their personal and partisan interests. But Republicans would never do that, would they?