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Chapter Three -- Part A

It is here that we leave the trail blazed by Berger, and go directly to some seldom considered sections of the Constitution that seem to bear on the general question of removal. My procedure will be to simply comment on the highlighted Constitutional language.

Article I, Legislative: Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member. (Section 5)

Comment: This is relevant because it is a specific means available to each House to remove members of that house only, who violate the rules of the House. In this way, impeachment is either rendered completely unnecessary for members of Congress, or is established as one of at least two ways in which a member of Congress may be Constitutionally removed from office.

Article I, Legislative: The Senators and Representatives... shall in all cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place. (Section 6)

Comment: Madison’s Debates reveal that a similar passage from an earlier draft of the Constitution provided "Freedom of speech and debate in the Legislature shall not be impeached or questioned in any Court or place out of the Legislature...", [8] the remainder of the draft passage was very similar to the final text of the Constitution. The earlier draft of the Constitution included a provision that impeachments were to be tried by the Judiciary. [9] The earlier passage seems to suggest a member of Congress was to be unimpeachable for anything said in a proceeding of Congress. The phrase "...treason, Felony and Breach of the Peace..." appears to be directly from Blackstone’s Commentaries, where the power of a warrant "...in order to compel the person accused to appear...extends to all treasons, felonies, and breaches of the peace...". [10] In general, this Constitutional passage seems to be intended to ensure that the other two branches cannot interfere with the work of Members of Congress. Because the final text of the Constitution provides that the specialized kind of trial called an impeachment trial is to be conducted by the Senate and not by the Judiciary, and because the word "impeached", while present in the earlier draft, is omitted in the final text, it appears that the Constitution does not prohibit impeachment of a Member of Congress. Notice also that while the Article Two Executive passage specifies "...The President, Vice President and all civil Officers of the United States...", the Article One Legislative passages on impeachment, removal, and disqualification, do not exclude anyone from being impeachable, and fully and independently specify that the result of a Senate impeachment trial can be "...removal from Office, and disqualification..." from holding future office. As we have seen, in England anyone could be impeached, for anything, with the possible exception of the royal family. Arguments were advanced at the time of the U.S. Senate’s 1798 deliberations regarding the impeachment of Senator William Blount, that Congress could even pre-emptively impeach private citizens, disqualifying them from ever holding office. [11] Congress does in fact appear to have the Constitutional power to do this. This is certainly an area where the Supreme Court would probably consider accepting review of a Senate impeachment conviction, if the process appeared to be blatently partisan. The American people, the ultimate check on abuse of government power, wouldn’t stand for this kind of misuse of impeachment in a partisan way.

Article One, Legislative: No Bill of Attainder or ex post facto Law shall be passed. (Section 9)

Comment: This seems so simple... but is it? We have already seen that in England, the Bill of Attainder and the Bill of Pains and Penalties were closely related, and that by definition the penalty for a Bill of Attainder was death. Did the Founders intend to discriminate between bills of Attainder and of Pains and Penalties, prohibiting Attainder but allowing a Bill of Pains and Penalties? Consider these two passages from Article One, Legislative, Section 8, designating the Powers of Congress: "...to provide for the Punishment of counterfeiting...", "To define and punish Piracies and Felonies committed on the high Seas,...". Notice that regarding counterfeiting, a domestic crime, Congress can "provide for thepunishment", leaving the Federal Judiciary to apply the law of Congress. Compare this to piracy, an international crime with potential issues of territorial waters and the question of war and peace, where it appears Congress has the power "...to define and punish..." directly. Is this a Constitutional instance of an independent judicial power of Congress, or an area where both Congress and the Judiciary can have independent jurisdiction? Consider also the relationship of this passage from Article Three Judiciary, Section 3 "The Congress shall have Power to declare the Punishment of Treason, but no Attainder of treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted." Recall that a Bill of Attainder in England was a complete, self-contained judicial and legislative proceeding carried out by Parliament alone. An English Bill of Attainder, alone, had the full effect of 1) passing a law against something, 2) convicting someone of violating that law, and 3) sentencing that person to death. When it’s put that way, it is easy to see why our Constitution specifically prohibits a Bill of Attainder as such. However, it appears that in the above Judiciary section of the Constitution, Congress is given a specific element of what in our system of checks and balances would otherwise be left to the courts: "...Power to declare the punishment of Treason...", including imposing capital punishment. When we compare the Article One Legislative ban on a Bill of Attainder with the Article Three Judicial provisions regarding Treason, it seems a strong argument can be made that for Treason, our Constitution may provide for power sharing between the Legislative and Judicial branches in ways we haven’t been aware of. This question will be revisited. Regarding the phrase "...ex post facto Law...", this is a law that is intended to be retroactive. This Constitutional prohibition is against any kind of a statute that would be enforceable by the courts against anyone and everyone, based on actions before the law became effective. It is important to distinguish an ex post facto Law from a Bill, because while laws apply to everyone equally, bills can be written to apply to specific entities and individuals. When we consider the operation of the Constitutional prohibition against ex post facto laws we must keep in mind both the distinction between a law and a bill, and the possibility that a Bill of Pains and Penalties may be Constitutional. I have no doubt that outside the narrow confines of issues of removal from office, the supreme Court would be very reluctant to let anything stand that even remotely resembled an ex post facto Law. As stated earlier, the thesis of this book is not based on any assumption that a Bill of Pains and Penalties is Constitutional.

Article II, Executive: In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected. (Section 1)

Comment: We have already briefly considered some of what Berger has suggested regarding this passage. This section of the Constitution has been partly superseded by Amendment XXV, which specifies at the Constitutional level a detailed procedure for determining whether Presidential inability does or does not exist. Although the ability of Congress to legislate regarding Presidential inability is now clearly restricted by Amendment XXV, it appears the phrase "...Congress may by Law provide for the Case of Removal,..." is at least in some respects unaffected by Amendment XXV. My main point here is this: if the thesis of this book is correct, and our Constitution provides for two independent trial venues to remove from office a President impeached on criminal grounds, then by the phrase "Congress may by Law provide for the Case of Removal", Congress is specifically given the power to legislate as to what criminal violations of Federal statutes, if any, may be designated as "Crimes of Removal from Office" in what could be appropriately termed a "Statute of Inquest of Office". By this I mean violations of Federal statutes that Congress determines to be serious enough to justify having a law that if a President or any civil officer is impeached for such a violation, and is found guilty in a Judiciary court, the impeached person, including a President, is immediately and automatically removed from office. According to Article Three, Section 2, "the supreme Court shall have appellate jurisdiction, both as to Law and Fact, with such exceptions, and under such Regulations as the Congress shall make". This Constitutional passage gives the Congress authority, if they pass a Statute of Inquest of Office, to give the supreme Court automatic original jurisdiction over any case when the President has been impeached and Judicial conviction will decide the issue of removal from office. The supreme Court should be given such original jurisdiction to insure that the question of whether or not an impeached President is guilty of a Crime of Removal from Office can be definitively answered as quickly as possible. The national interest requires all reasonable speed in definitively answering such a question.

An argument could be advanced that the interpretation just presented is wrong because this section of the Constitution is intended to have only the limited function of providing a power of Congress to determine by Law who should serve as President if either the vice-President, or both the President and the vice-President are unable to serve, for whatever reason. Under such an interpretation, the only function of this Constitutional section would be to give Congress the power to determine rules of succession to the Presidency that are left unspecified in the Constitution. I don’t accept this interpretation, for several reasons. One consideration will be left for the next chapter, when changes in wording from earlier draft language to the final Constitution are discussed. Regarding the specific provisions of this section, the Constitution leaves the mechanics unspecified for a Case of Removal, Resignation, or Inability. Regarding a Case of Inability, some essential "mechanics" must be specified, for example: how is Presidential inability to be determined? This question was raised during the Convention debates. [12] Because these mechanics must be specified, and because "Congress may by Law provide for the Case of Removal,... or Inability,..." it follows both logically and conclusively that this explicit provision of the Constitution gives Congress the power to answer by Law any relevant mechanical questions regarding Inability. Assuming the thesis of this book is correct, and that the Constitution does provide for House impeachment and removal by Judicial conviction in a case of criminal violations of Federal statutes, then it follows that there are also essential mechanical details that must be spelled out as to how this process of removal will work. By the previous reasoning stated for Inability, it again follows both logically and conclusively that this explicit provision of the Constitution gives Congress the power to address and answer by Law any relevant mechanical questions regarding a Case of Removal from Office of the President.

Article III, Judiciary: The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour... (Section 1)

Comment: Based on Professor Berger’s work, this passage seems to be a clear example of a Constitutional provision suggesting a way of removal from office other than impeachment.

Article III, Judiciary: The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made... (Section 2)

Comment: There are three key points here. The first is simply the issue of jurisdiction: the Judiciary is given specific jurisdiction over certain cases. Both this provision and the one below referencing "... trial of all Crimes..." establish specific, unmistakable Judicial jurisdiction over all criminal cases that arise from violations of Federal law. The second point is more subtle and may be problematic. It appears to me that the phrase "The judicial Power shall extend..." at least suggests that for cases involving criminal prosecutions against executive branch officers including the President, due to the issue of a possible conflict of interest it follows that there is specific, Constitutional Judiciary power to at least regulate or supervise, if not to completely designate and control, who is to prosecute cases against executive civil officers. The third point, that jurisdiction includes cases in Equity, will be considered in the comment on the next passage.

Article Three, Judiciary: The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury... (Section 2)

Comment: The commonly held construction of this provision seems to be that the phrase "...except in Cases of Impeachment..." is simply to reaffirm that when a Senate impeachment trial is being held, the trial is in the Senate, by Senators, and not by Jury. In effect, under this construction the passage simply confirms that the Judiciary is prohibited from conducting an impeachment trial. I don’t accept this characterization of the Constitutional passage for several reasons. First, Article One clearly establishes a specialized kind of trial, called an impeachment trial, and establishes that only the Senate has the power to conduct this specialized kind of trial. It does not seem necessary to restate in a roundabout way in Article Three what is already stated explicitly in Article One: "The Senate shall have the sole Power to try all Impeachments." A second idea has been advanced, that this provision in Article Three is to make it clear that the Senate is not required to empanel a jury as part of a Senate impeachment trial. This doesn’t seem to make sense either, for two reasons: it is obvious from the Article One Senate impeachment voting provision of two-thirds required for removal that a jury has no role in such a trial, and because Article One specifies that a separate, independent Judiciary criminal trial can occur after a Senate impeachment verdict.

We saw in the last chapter that for trials based on equity, no jury was required. In the English Chancery courts, the judge was both a professional trier of facts, and a person with more leeway and discretion to render a result that was according to a general idea of justice, rather than according to the letter of the law. We also need to keep in mind that while in England the courts of common law, and Chancery or equity courts, were two separate systems, in America no such separate systems had been established. The question of how cases in law and in equity were to be administered, coordinated, or even merged, was unresolved when the Constitution was written.

The provision that Judicial jurisdiction was to include both cases in law and equity suggests to me that the correct understanding of the Constitutional passage is along the following lines. We must first bear in mind that the purpose of all Constitutional provisions regarding impeachment and removal is fundamentally to protect against the danger that is inherent whenever people have power. The Constitutional provision we are considering is intended specifically to exclude the right of a trial by jury for anyone facing a Criminal trial as a consequence of House impeachment. Four advantages result from this exclusion. First, because a judge, or more likely a panel of judges, will decide the issue of guilt or innocence, the decision will be made by people who are both highly trained in the law, and who have a thorough understanding of what I have called the public service subculture. In short, trained judges can both understand complicated schemes designed to abuse power, and can be relied on to apply the law fairly. Second, when the trial is to judges only, the trial can proceed faster. When a trial is being conducted that determines whether or not a President remains in office, all reasonable provisions must be made to ensure that the trial is conducted as quickly as possible, giving due regard to the rights of an accused. The implication that by the absence of a jury, such a trial is along the lines of an equity trial in the English Chancery, also suggests the judges might be able to question witnesses directly, further facilitating a speedy trial. Third, notice that one consequence of this interpretation is that a person who is impeached by the House of Representatives loses the right to a jury trial, and therefore loses a safeguard designed to make criminal conviction more difficult. If an office holder is facing possible impeachment by the House, resignation before impeachment both removes any threat to the government from any possible continuing abuse of office, and may ensure the subject of the impeachment a better prospect of a successful defense against criminal prosecution. Fourth, in a case of impeachment, the fact that the trial is to Judges and not to a jury suggests that the Judges can use judicial discretion to decide the case with reference to concepts of equity. The decision of the Judges might also balance the penalty of removal from office as a consideration against imposing further punishment, beyond the penalty of forfeiture of the office.

I conclude that this provision of the Constitution has three effects relevant to impeachment and removal. First, it affirms that the Judiciary has Constitutional jurisdiction to conduct a Criminal trial in a Case of Impeachment, not to try the questions of removal and disqualification as such, but to try issues of criminal violations of Federal statutes, with removal from office being an automatic consequence of conviction. Second, anyone impeached by the House of Representatives loses the right to a jury trial. Third, in a judicial trial of a Case of Impeachment, the Judges can base their decision regarding both conviction and punishment at least partially on equitable considerations. In short, the overall effect of this provision is to allow criminal trials to be conducted in criminal courts, where they belong, with all judicial due process to safeguard the accused except the right to trial by jury, in the interest of justice without delay, and allowing consideration of equity.

Article III, Judiciary: Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted. (Section 3)

Comment: One crucial question here is whether the definition of treason and the specification of what is required to convict on a charge of treason are applicable to an impeachment proceeding, or only applicable as limiting for a Judiciary trial. In an earlier draft of the Constitution, language similar to this was in Article VII, regarding the legislature. Between this draft and the final text of the Constitution it was moved from an article regarding the Legislature, to Article Three on the Judiciary. It would be a strange doctrine if it were held that a President could commit treason, potentially the most dangerous offense to a Republic, with complete immunity from removal from office as long as there were not two witnesses available to the same overt act. This consideration alone suggests that the Article Three definition of treason and specification of what is required to convict are restrictions that apply only to Judicial trial, where criminal penalties may follow, and are in no way restrictions on the independent ability of Congress to impeach and remove anyone when it is determined to their satisfaction that there is a great threat to the nation.

To complete our consideration of this section of the Constitution, some further technical legal background information must be provided here. We have already seen that a Bill of Attainder, by definition, includes a death sentence. Here, we are only concerned with Attainder itself. From Blackstone’s Commentaries: "Attainder. When sentence of death is pronounced, the immediate consequence from the common law is attainder. The man is then called attaint, attinctus, stained or blackened, and is dead in law. This is after judgment; for there is a marked difference between a man convicted and attainted... Consequence. The consequences of attainder are: 1. Forfeiture. 2. Corruption of blood." [13] With regard to this Constitutional section, the distinct and different legal status of a convicted person before and after sentencing is the key issue here. It is clear that the Judiciary has the power to try criminal cases of Treason. Obviously, a conviction may result. If a Judiciary conviction has been obtained on a charge of Treason, the phrase "The Congress shall have Power to declare the Punishment of Treason...", suggests that at this point Congress has the Constitutional power to impose a sentence directly on the convicted person. Further, if this sentence is death, the effect of the resulting Attainder is Constitutionally limited — it shall not "...work Corruption of Blood, or Forfeiture except during the Life of the Person attainted." In the case of a death sentence this limitation makes sense for this reason — defendants accused of capital crimes have been known to flee. This happened in more than one English Treason proceeding. The fact that forfeiture is limited to the life of the person attainted has the effect of freezing the assets of anyone who has been sentenced to death for treason, but remains at large. One further point of crucial importance to the theory advanced here: loss of office or offices is one of the legal consequences of forfeiture. Since this passage appears to provide for the ability of Congress to impose a death sentence and thereby effect forfeiture or removal from office, it seems to follow logically that Congress can impose lesser punishments for treason, and that such punishment can include forfeiture, or removal from office.

Now we can see the full implications of this Constitutional passage. If a person is convicted of Treason in a Judiciary Criminal trial, the Congress has the specific Constitutional power of "declaring the Punishment of Treason," to effect a punishment that can include removal from office. It appears that from this power, and from the Article Two power of Congress to "...by Law provide for the Case of Removal...", that removal can be effected either by a Law previously passed, or by direct action to punish that individual. According to the construction just presented, this Constitutional method of removing a President from office appears to require no Congressional impeachment proceeding of any kind. It appears that if the crime is Treason, the elements of the English Bill of Attainder have been divided in such a way that the independent action of two branches of government, the Legislative and the Judiciary, can effect the same result that was achieved by Parliament alone, acting simultaneously in both a legislative and a judicial capacity. This does not violate the Constitutional prohibition of a Bill of Attainder, first because it is rooted in explicit Constitutional provisions, and second because while in England a Bill of Attainder can be passed by the Legislature alone, under these Constitutional provisions the action of two independent branches is required.

We are now ready to consider the effect of three Constitutional amendments regarding impeachment, removal and disability.

Copyright © 2000, Robert S. Carney Jr., 4232 Colfax Ave. So., Minneapolis, MN 55409. All rights reserved.

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