Saturday, January 16, 2021

Playing with Words While the World Burns: The Constitution Does Not Bar Future Senate Impeachment after January 20

Guest Blogger

 Victoria Nourse

            There is significant Senate precedent that Donald Trump may be impeached after his Term ends. Experts on impeachment have explained the historical precedents. There are good reasons for this.  Why is impeachment necessary when the officer is not in office?  Answer: to bar the President from reelection and life-long taxpayer pensions. Unfortunately, when the impeachment trial begins, we are likely to see arguments from the President like the ones we have seen before, that aggrandize his power and diminish Congress’s powers to call him to account.   The legal opposition has already begun.

            A few days ago, former Judge Michael Luttig argued in the Washington Post, that the “plain text” of the constitution bars a Senate impeachment after January 20, when Trump has left office.   The only problem with Luttig’s argument is that he is playing with words.   Luttig accurately quoted the relevant constitutional provisions but then proceeded to read them out of the constitution.  There is nothing “plain” in the slightest about his reading.

            Here is what the Constitution says:

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.

             Here is Luttig’s constitutional text: 

Judgment in Cases of Impeachment shall ­not[only] extend further than to removal from Office [of an incumbent official], and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States

             In short, Luttig rewrites the constitutional text, adding words suggesting that removal from office is the exclusive point of an impeachment.   But it is not.  As the excised words show, “disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States” is an essential part of the impeachment process.    It prevents the impeached officer from running or serving again, and deters others from similarly grave wrongdoing.  In the 1876 Belknap trial, where the Secretary of War was impeached after he was no longer in office, the House Judiciary Chairman explained it thus:

The great object, after all, was that his infamy might be rendered conspicuous, historical, eternal, in order to prevent the occurrence of like offenses in the future. The purpose was ... to teach [other officials] that if they should fall under like temptations they will fall, like Lucifer, never to rise again. 

How can Luttig so confidently assert that the “text” is to the contrary?    He follows a constitutional philosophy known as textualism, which should really be titled “anti-textualism.”   Textualists do not do what they say.   They do not stick to the words of the constitution.   They pick and choose the words and then add some.   Luttig’s impeachment argument is a perfect example of this kind of bait and switch:  follow the words, but only the words I like, and then let me add “incumbent” president to top it off.   Luttig’s claim rests entirely on one part of the constitution—Article II, section 4, which provides that the President may be “removed from office on impeachment for and conviction of . . . high crimes and misdemeanors.”   He entirely neglects the Article I power of the Senate to disqualify.   In a forthcoming piece, Bill Eskridge and I call this “gerrymandering the text,” picking and choosing some parts of the constitution to emphasize at the expense of others. 

Constitutionalists need to push back harder on such arguments.  Word games like this have helped to produce constitutional enablers for Donald Trump’s entire presidency.   Trump has made public claims to grandiose and dictatorial power (“When somebody is the president of the United States, the authority is total.  And that’s the way it’s got to be.  It’s total.”)  And where did that come from in the Constitution?  It doesn’t.    The text does not say he has “all” power.   Justices used to condemn that reading as “totalitarian.”  (See Justice Jackson in Steel Seizure responding to the Solicitor General’s textual arguments).   But in the odd playing-with-words world of the textualism, that is what the constitution means.  Trump’s lawyers got this totalitarian argument from Justice Scalia who, in a dissenting opinion, once wrote that Article II section 1’s “vesting clause” which provides that “the executive power shall be vested” in a President does not “mean some of the executive power, but all of the executive power.”  Of course, like Luttig, Scalia has added the word “all” to the constitution’s text.   This is not a bug in textualism’s theory, it is a persistent feature.   Those who most insistently praise the text are the ones who end up, in some of the most important places, ignoring the actual text. 

History will record that lawyers, yes textualist lawyers, enabled Trump.   How could something so seemingly banal do that?  Because textualists refuse to look to the consequences of their interpretations or even prior precedent, as a check on their own inevitable cognitive biases.  During the Barrett hearings, I warned in various media outlets that textualism was a wolf in sheep’s clothing (to borrow a Scaliaesque motto) precisely for this reason.  Refusing to look at the consequences of one’s actions is not only irrational, it is immoral.   Washington is burning.   The Capitol has been assaulted by a mob inspired by the President.   No doubt the Senators who helped inspire the riot will find Judge Luttig’s argument welcome should they resist Senate impeachment.   I fully expect that there will be a Senate vote on the issue of whether the Senate can proceed to a trial.  Let us hope that other Senators won’t be misled by efforts to gerrymander the text. 

Victoria Nourse is Ralph V. Whitworth Professor of Law at the Georgetown Law Center, and the author of a forthcoming book,  Impeachment:  Introduction to Constitutional Argument (West 2021). You can reach her by e-mail at Victoria.Nourse at

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