A Textual Argument for Trying Ex-Presidents: Why “Conviction” and not just “Removal”?

As a follow-up to my piece yesterday on an originalist case for the Senate to try a former president (“The Originalist Case for Impeaching Ex-Presidents: Mason, Randolph & G.Morris”), I suggest an implicit textual argument as a reply to why disqualification requires a 2/3 vote, not a simple majority vote:

Why did the Framers use “convict” and not “remove” or “convict and remove” in Article I for impeachments, if removal was always a necessary first step?

Here is Article I, Sec. 3, Clause 6 and 7 (emphasis added):

Cl. 6: “The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.”

Cl. 7: “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.”

If the Framers thought impeachment was available only to sitting officers, then one would think that removal was the necessary punishment as a first step, and then disqualification was a possible second step. Thus, removal would have been the only necessary word in Clause 6. (It seems silly to suggest a sitting officer could be disqualified after not being removed).

If impeachment applied only to sitting officers, and thus removal was the necessary first step in all cases, they could have written, “And no Person shall be removed without the Concurrence of two thirds of the Members present.” But they did not. Instead, they wrote “convicted.” Why use the word “convicted,” unless removal and disqualification were two separate and severable penalties?

And the Framers could have written: “Judgment in Cases of impeachment shall not extend further than to removal from Office, and then disqualification.” That would have signified the necessary first step, instead of leaving ambiguity about severability.

First, this is an important rebuttal to anyone who suggests disqualification could be by a bare majority, and also an answer to those who argue against a former officer’s disqualification trial because it may be misused by a bar majority.

Second, and relevant for this debate, it seems the Framers understood that “convictions” was a larger category in the first clause (clause 6). In the next clause, they specify two punishments (removal and disqualification) as a follow to convictions, just like criminal trials have a guilt/conviction phase and a penalty phase. There is nothing in these two clauses that suggests that removal is necessary before disqualification.

Thus, Article I’s text implies that conviction is trial phase, and removal and disqualification are penalty phase, and severable. If the Framers intended removal to be a necessary step, one imagines they also would have written “And no Person shall be convicted and removed without the Concurrence of two thirds of the Members present.” By separating conviction from removal and disqualification, the Framers suggest that the Senate can convict (by two thirds) and then disqualify a former officer.

Author: Jed Shugerman

Legal historian at Fordham Law School, teaching Torts, Administrative Law, and Constitutional History. JD/PhD in History, Yale. Red Sox and Celtics fan, youth soccer coach. Author of "The People's Courts: Pursuing Judicial Independence in America" (2012) on the rise of judicial elections in America. I filed an amicus brief in the Emoluments litigation against Trump along with a great team of historians. I'm working on "The Rise of the Prosecutor Politicians," a history of prosecutors and political ambition (a cause of mass incarceration), and "The Imaginary Unitary Executive," on the myths and history of presidential power in America.

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