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It Doesn’t Say “Only”: A Textual Point About Impeachment
Richard Primus
The
subtitle above indicates that this post will make a textual point about
impeachment.But perhaps it would be
more accurate to say that this post will make an impeachment-related point
about textual reading in constitutional law.
Article
II, Section 4 of the Constitution reads as follows: “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.”As a matter of
practice, people have taken that language to state the exclusively valid
grounds for removal.On that
understanding, someone who has committed neither treason, nor bribery, nor a
high crime or misdemeanor is not subject to impeachment.In other words, everyone speaks as if Article
II, Section 4 said that the officeholders specified shall be removed from
office only on impeachment for and
conviction of those offenses.
But
the word “only” does not appear in the text.Read strictly, Article II, Section 4 does not purport to define the
exclusive grounds for impeachment and removal.If its language is given its most natural meaning, Section 4 specifies
scenarios in which removal shall follow from impeachment and conviction, but it
does not say that there are no other grounds for impeachment and removal than
the ones specified.The text might be
saying “In cases of treason, bribery, or high crimes and misdemeanors,
impeachment and removal are warranted,” while saying nothing about whether
Congress also has the discretion to impeach and remove in other circumstances.In other words, the function of the Clause
might be to rule certain grounds for impeachment and removal in, not to rule everything else out.
But
wait, you say.Surely this is a case
where the specification of a few grounds for a procedure implicitly negates
other grounds.Expressio unius est exclusio alterius.
Maybe.But compare the last section of Article II,
which discusses impeachment, with the last section of Article III, which
discusses treason.The language of
Article I, Section 3 begins as follows: “Treason
against the United States, shall consist only
in levying War against them, or in adhering to their Enemies, giving them Aid
and Comfort.”(I’ve italicized the word
“only.”)Here, the Constitution’s text
specifies that it is providing the sole grounds for treason convictions.When it wants to, the Constitution is
perfectly capable of saying “only.”
From
a certain textualist point of view, the contrast between the language about
treason and the language about impeachment might be particularly noteworthy
because the two constitutional Sections are, in a manner of speaking,
cousins.Each one describes the grounds
that render a particular individual subject to adverse treatment.(Unless one counts the rendition clauses of
Article IV, they’re the only clauses
in the Constitution that do that.)The
Sections are positioned in structurally analogous locations: impeachment is
covered at the very end of Article II, and treason is covered at the very end
of Article III.And the language about
impeachment expressly makes reference to treason, thus linking the two Sections
together.All of which suggests that if
there’s any text in the Constitution whose wording might shed light on the
wording of Article II, Section 4, the treason language is an excellent
candidate.
I presented this possibility this
week to the forty students currently enrolled in my constitutional interpretation
class.They divided pretty evenly on the
merits.After discussion, a little less
than half took the view that treason, bribery and high crimes and misdemeanors
are the exclusive grounds for impeachment, and a little less than half took the
view that they are not the exclusive grounds.(A few students pronounced themselves in equipoise.)
One
might suspect that in practice it makes little difference whether Section 4’s
list is read as exclusive, because any Congress sufficiently resolved to remove
an officeholder will define the category “high crimes and misdemeanors” in a
way that covers whatever nasty things an officer facing impeachment has done.But if indeed the category “high crimes and
misdemeanors” is malleable in that way, then recognizing that the
Constitution’s language is consistent with impeaching and removing officials
for reasons not specified in Article II might improve the impeachment process
as we know it.If impeachments did not
have to force their way into the category “high crimes and misdemeanors,” everyone
would be spared the quasi-legalistic and mostly non-helpful wrangling that goes
on over what is and isn’t in that category.Congress could just get to the real question, which is whether something
warrants the extraordinary remedy of impeachment and removal.Alternatively, maybe the need to fit an
impeachment within the category of high crimes and misdemeanors disciplines
Congress, in a healthy way, to reserve impeachment for occasions when things
are really serious, even if the wrangling over the category is not really to
the point.
It seems to me that the
constitutional practice of the United States in 2019 is settled in favor of
reading Section 4’s list as exclusive, regardless of what an untutored reader
of that text might conclude.But as my
experience with my students as described above demonstrates, there is reason to
think that the text alone—even when read by good upper-level law students
rather than truly untutored readers—is not sufficient to settle the
question.