Dear Professor,
I noticed that you cite Joseph
Story in more than a 1/2 dozen of your publications—and
sometimes, you cite Story’s position favorably. For that reason, I have
attached an extract from: 2 Joseph Story, Commentaries on the Constitution
of the United States § 791, at 260 (Boston, Hilliard,
Gray, & Co. 1833). You will notice that Story takes the view that the
Constitution’s “officers of the United States”-language in the
Impeachment Clause (art. II, S. 4) and, apparently, in the Commissions Clause
(art. II, S. 3) does not reach the president.
Story takes a similar view with
regard to the Constitution’s “Office ... under the United States”-language
in the Incompatibility Clause (art. I, S. 6, cl. 2) and the Elector
Incompatibility Clause (art. II, S. 1, cl. 2). Id. § 791. The Impeachment
Disqualification Clause (art. I, S. 3, cl. 7) also uses the same “Office ...
under the United States”-language. Given the linguistic similarity, I do not
think it is a reach to say that Story’s position was that the presidency does
not fall under the scope of that clause. Likewise, McKnight—a mid-century
commentator—said that: “[I]t is obvious that . . . the President is not
regarded as ‘an officer of, or under, the United States,’ but as
one branch of ‘the Government.’” David A. McKnight, The Electoral System of
the United States 346 (Philadelphia, J.B. Lippincott & Co. 1878)
(emphases added).
As to the normative basis for
excluding a disqualified defendant exclusively from appointed federal positions,
but not from elected federal positions, that too can be explained:
The disqualification clause of punishment was
evidently put in for the purpose of making the power of removal by impeachment
effectual. After providing that the officers of the United States might be
removed on impeachment, although the President could not pardon the offender
convicted and removed, yet if he could reinstate him the next morning he would
have substantially the power of pardon. To prevent this was the object of the
disqualifying clause; which Story says is not a necessary part of the judgment.
You might impose it where you had removed an officer appointed by the President
whom the President could reinstate. You could stop that by fixing disability
upon the officer; and that I take to have been the sole purpose of this clause.
3 Asher C. Hinds, Hinds’ Precedents
of the House 318 (1907) (quoting Mr Carpenter, counsel for Belknap—a
defendant in impeachment proceedings before the Senate).
I do not suggest that the
authorities above conclusively settle the issue. And, I suppose you disagree
with my view, with Carpenter’s view, with McKnight’s view, and with Story’s
view. But is their (and my) view as to the scope of the Impeachment
Disqualification Clause’s “Office ... under the United States”-language really
an “absurd” view?
Sincerely,
Seth Tillman
Seth Barrett Tillman, An “Absurd” View, New Reform Club (May 12, 2023, 4:45 AM), <https://reformclub.blogspot.com/2023/05/an-absurd-view.html>;
