Sunday, January 28, 2024

Being Blunt about Blount

Mark Graber

Scholars and commentators opposed to disqualifying former President Trump from all future officeholding make basic historical errors and engage in remarkably selective citation when arguing that the failed impeachment of William Blount in 1798-99 is a vital precedent for their fanciful claim that presidents are not officers of the United States.  The Annals of Congress provides far more evidence that Trump is among the persons disqualified from future officeholding than for a bizarre presidential immunity from the consequences of engaging in an insurrection.  Of the four lawyers who argued before the Senate during the Blount impeachment trial, two argued that the president was an officer of the United States, another insisted that the President was an officer under the United States for purposes of most clauses.  Only one gave a speech that might be reasonably interpreted as indicating the president was not a civil officer.  That speech also provides evidence that the attorney thought presidents were civil officers of the United States.   Three of the lawyers who argued before the Senate agreed that "officer," "officer of the United States," and "officer under the United States" had no consistent meaning, that different persons might meet this description under different constitutional provisions.  The history suggests the meaning of "officer of the United States" and "officer under the United States" in Section Three of the Fourteenth Amendment must be determined by whether persons in 1866 had good reasons to exempt the president and the presidency from constitutional disqualification and not on some imagined universal understanding of "officer" that pervades all constitutional provisions.

President John Adams recommended that Senator William Blount of Tennessee be impeached after obtaining evidence that Blount was involved in a plot to capture Spanish territory in Florida and Louisiana.  The Senate almost immediately expelled Blount and the House unanimously voted to impeach. These actions provide strong evidence that Adams and House members thought Senators were civil officers under the impeachment clause, given that the clause limits impeachment to the President, Vice-President and civil officers.  Adams' recommendation and the House vote say nothing about whether the President is a civil officer or some other kind of officer of the United States or under the United States. 

The Senate debate on impeachment focused on three issues: whether a Senator was a civil officer subject to impeachment, whether a person could be impeached after leaving or being removed from an impeachable office; and whether a person could be impeached for crimes committed before (or after) the person was in office.  Representative James A. Bayard of Delaware and Representative Robert G. Harper of South Carolina presented the prosecution case to the Senate.  Alexander J. Dallas and Jared Ingersoll served as Blount’s lawyers.  Contrary to various briefs filed for Trump, Bayard was a representative and he was the prosecutor, not the defense attorney. 

Following these speeches and several days of debate (not recorded), Congress by a 14 to 11 voted on the following resolutions, only the first half of which show up in the briefs for President Trump


            “That William Blount was a civil officer of the United States, within the meaning of the Constitution of the United States, and therefore, liable to be impeached by the House of Representatives.”

            “That as the Articles of Impeachment charge him with high crimes and misdemeanors, supposed to have been committed while he was a Senator of the United States, his plea ought to be overruled.”


The obvious problem with the failure to disclose the second paragraph is that some Senator might have believed, as counsel had argued, that Blount’s crimes were not committed when he was a Senator of the United States.  The less obvious problem is that Blount may not have been a civil officer of the United States liable to impeachment because, as counsel had argued, he had been expelled from the Senate.  In short, while we know that 11 Senators must have thought Blount was a civil officer because they could have voted to impeach only if Blount was a civil officer, we do not know what the other 14 who voted against the resolution were thinking on the civil officer issue.  Significantly, both David Currie, a leading constitutional historian of Congress, and the author of the leading book on the Blount trial agree that no one can know with certainty why 14 Senators voted against impeachment.


That Blount is a precedent for presidential exemption to Section Three disqualification cannot be grounded primarily on the vote against impeachment.  Senators were not voting on whether the President was a civil officer for purposes of the impeachment clause or for any other purpose.  Rather the claim is that Senators must have been endorsing the reasons Blount's attorneys gave for rejecting impeachment.  This is hardly a conclusion based on historical evidence, given the Annals of Congress provides no evidence for reaching any conclusion about what any Senator was thinking when voting not to impeach Blount.  We do not even know who voted against impeachment, much less why anyone so voted.


The main problem claiming Blount as a precedent for presidents not being civil officers of the United States is more basic.  Those who insist Blount is a precedent for the president not being an officer of the United States rely on the speech made by Representative Bayard.  Others have pointed out, however, that Bayard prosecuted Blount.  He lost.  The 14 Senators who voted against Bayard were not persuaded by his arguments.  To the extent Blount established a precedent, we should look to the Dallas and Ingersoll speeches.


Senators persuaded by Bayard would have rejected Trump's insistence that the President is not a civil officer of the United States for any purpose.  Bayard, Harper for the prosecution, and Dallas for the defense, maintained that the Constitution provided no one-size-fits-all definition of officer that all applied to all government actors and all constitutional clauses.  Senators convinced by the arguments about officeholding made by both prosecutors and the lead defense attorney would have concluded that whether the president is a civil officer of the United States depends on the clause being considered.  Senators persuaded by Dallas's defense address would have concluded that presidents are civil officers of the United States for all purposes. 

Representative James A. Bayard’s speech for the prosecution insisted that the word “office” in the Constitution was “incautiously used.”  Bayard acknowledged that Presidents and Senators were not officers under the United States for purposes of the appointments clause.  He declared, “it is clear that a Senator is not an officer under the Government.  The Government consists of the President, the Senate, and House of Representatives, and they who constitute the Government cannot be said to be under it.” President Trump’s supporters seize on this statement but ignore the rest of Bayard’s speech.  Minutes after insisting that Presidents, Senators, and Representatives were not officers under the government for purposes of the impeachment clause, Bayard insisted that the President, Senators, Representatives were officers under the Constitution for purposes of the emoluments clause.  Criticizing a one-size-fits all conception of constitutional officeholding, he declared, “If a Senator holds no office or profit or trust under the United States, it is lawful for him to accept a present, title, or office, from any King or foreign State."  This was nonsense.  Bayard asked, "Can it be possible that a public functionary, of all others, the peculiar object of this jealous restriction is, in fact, the sole object of exemption from its operation?” (2260).  When referring to Senators as being “the sole object of exemption” Bayard was plaining indicating that Presidents, like Senators, were officers under the United States for purposes of the emoluments clause.  To the extent the Senate was convinced by Bayard's speech, Senators in 1799 would have been persuaded that whether the President, a Senator or a Representative is a civil officer, an officer of the United States or an officer under the United States depends on the clause under consideration and not on any understanding of officer applicable to every constitutional provision that mentions "officer." 

Dallas when presenting the defense case more clearly asserted that the president is a civil officer of the United States and agreed with Bayard that the Constitution was not a model of clarity on the forms of officeholding in the United States.  Dallas, who published the first volumes of the Supreme Court Reports, relied heavily on the distinction between civil officers who could be impeached and legislators who could only be expelled when claiming Blount could not be impeached.  The future cabinet member began his speech by twice declaring that “only civil officers of the United States are impeachable.”  This theme was repeated throughout.  That Dallas self-consciously thought presidents civil officers is supported further by his claim that it was “more natural to include the President and Vice-President” “under the general designation ‘civil officers.’” Dallas elaborated on Bayard's insistence that the use of “officer” in any particular constitutional provision had to be determined from context.  No one was an officer of the Constitution or an officer under the constitution for all constitutional provisions.  Dallas stated, “a moment’s consideration will incontestably show that the expression 'officers of,' and 'officers under,' the United States are indiscriminately used in the Constitution."  When making the argument, Dallas declared the President to be an officer under the Constitution for purposes of the emoluments clause and the constitutional ban on religious tests.  He concluded that efforts to make something of the “officer of/officer under" distinction “was a mere quibble, or play of words.” 

Ingersoll, who attended the framing convention in Philadelphia and signed the Constitution, was the defense attorney who appears to have thought the President was not a civil officer, but his analysis is not a paragon of clarity.  Ingersoll agreed with Dallas that “only civil officers” were subject to impeachment. He declared, “the power of proceeding by impeachment under the Constitution, extends only to civil officers of the United States.”  This seems more evidence that persons in 1799 thought the President a civil officer of the United States.  Ingersoll then declared, however, that “[t]he President . . . is not comprehended under the generic term of civil officer; but specifically described by the term of his office.”  He stated, “the President in the Constitution is always designated by the appropriate term of office, and never included under the expression of officer of the United States, or any generic term.” Given Ingersoll’s previous claim that only civil officers may be impeached, a reasonable interpreter might conclude that his statement was one of constitutional etiquette, a reference to how the President should be addressed and not a conclusion about whether the President is or is not a civil officer of the United States.  Unlike Bayard and Dallas, Ingersoll did not discuss whether the president was covered by the emoluments clause or religious test clause, which would have clarified whether he thought the President was an officer under the United States. Still, while the context does not permit any firm conclusions, a reasonable inference might be made from Ingersoll's assertions that he thought that presidents were not civil officers of the United States for any purposes.

Harper’s final speech for the prosecution explicitly stated that the President was an officer of the United States and that the Constitution was not consistent when referring to officers.  The Representative from South Carolina declared that the defense conceded that “the term ‘civil officer’ includes the President and Vice President,” although Harper may have been talking only of Dallas and not Ingersoll. This characterization, Harper stated, was not quite right.  He maintained that the President and Vice-President were explicitly enumerated in the impeachment clause because they were not merely civil officers. Harper stated, 

Now as the duties of the President are not confined to the civil or military department, but comprise both, it follows that his office is neither exclusively civil, nor exclusively military, but includes both characters; so that he would not have been included in the designation ‘civil officer,’ and it was necessary to name him expressly.  

Harper agreed with Bayard and Dallas that the Constitution did not adopt a one-size-fits-all definition of "officer."  Whether a particular member of the government was encompassed by the word “officer” in the constitutional text, he explained, had to be determined by context and not by any universal meaning of “officer,” “civil officer,” or “officer of the United States.  Harper declared, “the Constitution, being obliged to use the same word in application to different matters, and for different purposes, has used it generally, and left it to be explained by a reference to the intent and subject matter, instead of explaining it by express modification.” 

The sane historical conclusion from these speeches is that constitutional decision makers should not make firm conclusions about what speakers thought about one matter when they are addressing a different matter.  One desperately wants to interrupt Dallas and Ingersoll when they declare "only civil officers can be impeached" and ask whether they are referring to the president as well as officers appointed by the president.  Had Ingersoll been more focused on the office holding status of the president, he might have better clarified whether the constitutional practice of referring to the President by name reflected constitutional etiquette or had substantive implications for the president's status as an officeholder.  Lacking these clarifications, legal historians should be more circumspect about drawing firm conclusions from the Blount impeachment than some have been. 

Forced at gunpoint to reach conclusions, the Blount impeachment is best thought of as a precedent for the proposition that context determines whether for the purposes of a particular constitutional provision the president is a civil officer, an officer of the United States, or an officer under the United States.  Both prosecutors (Bayard, Harper) and the lead defense attorney (Dallas) advocated this contextual interpretation of "officer."  The other defense attorney (Ingersoll) did not challenge this position or state a clear position on whether presidents were exempt from such provisions as the emoluments clause or the ban on religious tests for office holding.  Whether the president should be included in the emoluments clause or ban on religious tests for office holding, from this perspective, depends on the logic of the emoluments clause and ban on religious tests for office holding, not on the scope of "officer under the constitution" appropriate for some other constitutional provision. 

The Blount impeachment so understood is another of the near infinite precedents that support the proposition that Donald Trump is subject to disqualification under Section Three of the Fourteenth Amendment and that his constitutional disqualification extends to the presidency.  The persons responsible for Section Three of the Fourteenth Amendment repeatedly declared that their goal was to disqualify from holding any office persons who in the past had taken an oath of office and then engaged in an insurrection.  No one suggested an exemption for presidents who had not held any office or for the presidency more generally.  No good reason has ever been offered for concluding that presidents who have never held another office are exempt from constitutional disqualification. The notion that the Electoral College provides a bulwark against a former insurrectionist in the White House is farcical, given former insurgents who did not hold previous office may sit in the Electoral College.  Bluntly speaking, there is no Blount escape hatch for Trump to evade responsibility for his role in the January 6 insurrection.



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