Thursday, October 17, 2019

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.   

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