Trumpeachment #2 Open Thread




The masked impeachment managers march in, but the specter remains….

This will be our Open Thread for impeachment discussion.  (For other discussion, use the latest general Open Thread.)

Day 1

Here are some things you need to know about what the second Trump defense attorney was saying about interpreting the Constitution.

Mr. Schoen sounded convincing at some points, but he was relying on people not knowing much about how legal interpretation actually works.

Yes, in these post-Scalia days, “we start with the text.”  But his insistence that we stop there, days on a “plain, clear meaning” of the words themselves, is totally off.  It’s more true of statutory interpretation than of constitutional interpretation, but in either case, the assertion of a “plain clear meaning” doesn’t make it so.  And the notion that we don’t take the recorded thoughts of the Framers of the Constitution (and its amendments) into account as we interpret that text is just woefully wrong.

We don’t do this so easily anymore for statutes because it can be hard to discern the actual intention of a provision passed by Congress — which, after all, may be buried in a larger bill, which few of those voting on it may or may have read at all — let alone coming to a general meeting of the minds about what each specific word is intended to imply for every conceivable future contingency.  But the rule for 30 years was basically that, in interpreting statutory terms, courts defer to any permissible (i.e., not too far wrong) interpretation of the executive agency that enforces that law.  The policy rationale is that (at least in theory) if Congress objects to a particular administrative interpretation, it can pass a new law to correct that misimpression.  (Note: led by Justice Gorsuch, the tendency for the past five years or so has been in the direction of the judiciary asserting its rights to define what the law is.

That doesn’t work nearly as well in constitutional interpretation.  We’re literally trying to discern the intention of people from mostly almost 250 years ago (in most cases) and around 150 years ago (for the Civil War amendments.) Use of language, including both word meaning and punctuation, has changed over time.  Furthermore, for the original Constitution and Bill of Rights, we had a relatively small group of people who debated things out well, documented the basis of their thinking, etc.  This is the basis for the second approach to constitutional interpretation, “originalism,” which does look into the writings and discussions of the authors of constitutional provisions to try and figure out what they were thinking.

(A third approach — the liberal alternative — is not to treat the constitution as a dead text but to recognize that the meaning of its provisions have changed over time as we have, for example, recognized the landless, women, racial/ethnic minorities, and sexual minorities as having the same rights as the white male landowners who were originally recognizes as having rights.  We’ll get to that below.)

So, when Mr. Schoen claims that no ambiguity exists, even when his interpretation flies in the face of what the framers of the Constitution knew and intended, he’s applying the rules for statutory interpretation in a place where either originalism or arguable a “living constitution” analysis is obviously preferable.  The fact that the Framers knew, and spoke positively about, the ability to impeach an officeholder even after they leave office, at a minimum introduces ambiguity into whether they meant to include “a President impeached on the way out of office for acts committed only recently” into the meaning of “President.”  It is not something to be crisply ignored on doctrinal grounds.

Similarly, the notion Schoen presents regarding Article 1, Section 3, Clause 7 — that the Congress has the power to remove from office, and to bar an officeholder from future office only if it has removed them, overlooks its inherent ambiguity:

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.

This is an example — most often noted in trying to interpret the “well-regulated militia” clause of the Second Amendment — where the writers of the 1780s simply used commas differently from the writers of the 2020s.  Try and parse that as hard as you can and it will still not make grammatical sense.  (As a copy editor, I’d probably first suggest starting a new sentence where the colon is, but that’s not the issue here.)  Is it more correct to construe “removal from Office, and disqualification to hold and enjoy any office …” as a single, two-part judgment, or as choice of judgments, or to a choice of either or both of two judgments?  There’s no right answer.

(By the way, the problem in legislative drafting to be specific about whether one means “and” or “inclusive or” or “exclusive or” (the last of these meaning “one or the other but not both”), is really difficult and legal writings are littered with examples of ambiguity where drafters did not use phrases like “both of,” “either or both of,” or “either but not both of” — especially in very old writings!)

My own guess is that — believing that the Framers knew and approved of post-tenure-in-office trial and disqualification, in cases where an impeached person had resigned or been timed out of office prior to their Senate trial — they meant that someone sitting in office could be removed and/or disqualified, while someone who was no longer sitting in office could only be disqualified given that the sanction removing them from office was unnecessary.  In other words, having already been removed from office due to resignation or operation of time was not a protection against the sanction of disqualification; it just rendered the first sanction of removal irrelevant.

Is Schoen right, am I right, or neither?  Because the Supreme Court refuses to engage in reviewing the law of impeachment, it doesn’t matter what each of us thinks: it is literally and solely up to the Senate itself to decide how to interpret that law.  They don’t have to use textualism (which is unavailing here) or originalism (which is informative) — whatever they do is fine.

However, there’s another “canon of construction” — a guide to interpreting legal language — that turns out to be pretty important here: if the interpretation you use leads to an absurd result, you should defer to an alternative one.  And that is what the “January exception” was all about: the managers were arguing that interpreting the text to say that a President could conduct a coup against the legislative branch of government without constitutional consequences — so long as it happened too late in their term for impeachment and trial to occur — is an extremely absurd result!  I think that’s that’s clearly correct: it cannot have been the Framer’s intent.

That’s why the rule that I’m tempted to impute here — that this trial is OK because, and only because, impeachment was finalized before the expiration of Trump’s presidency —  really doesn’t work here.  If Trump had invited people out on January 18 rather than January 6 for his coup attempt, would that really have been protected from the prospect of disqualification?  I don’t think so!  Arguably that the proper rule should be that impeachment must be initiated by some reasonably short time period after the end of the President’s tenure — or concluded by a later deadline — which would be an example of “living constitution” interpretation.

Schoen also argued that because “the President” is used in one instance in this section as what we’d now call “the sitting President” (who gets the Chief Justice to preside over the trial), that means that it must be used as only “the sitting President,” rather than “the person who took wrongful actions while President” in other parts of the section.  Yes, that is what one might believe if it did not lead to an absurd result.  But, frankly, in this case the result is absurd.

Have a look at Article 1, Section 3, Clause 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.

I think that it’s reasonable to interpret this reference to the President as “the sitting President” — meaning that (despite what you will hear for the rest of your life) the fact that Chief Justice Roberts did not preside does not disqualify the proceeding.  (As has been pointed out: the presiding figure is simply going to take orders from the Parliamentarian about what the applicable rule is, and when something is in doubt the rule can and should and will be put directly to the Senate for a decision.)

OK — have at it!

About Greg Diamond

Somewhat verbose attorney, semi-retired due to disability, residing in northwest Brea. Occasionally runs for office against bad people who would otherwise go unopposed. Got 45% of the vote against Bob Huff for State Senate in 2012; Josh Newman then won the seat in 2016. In 2014 became the first attorney to challenge OCDA Tony Rackauckas since 2002; Todd Spitzer then won that seat in 2018. Every time he's run against some rotten incumbent, the *next* person to challenge them wins! He's OK with that. Corrupt party hacks hate him. He's OK with that too. He does advise some local campaigns informally and (so far) without compensation. (If that last bit changes, he will declare the interest.)