What the Constitution really says about removal from office

How much does the text of the written Constitution matter, especially, at the level of individual words and even punctuation marks?

There are certainly limits to what one can glean from the punctuation of 18th-century English texts, replete as they are with what the lexicographer Eric Partridge referred to as "ornamental" semicolons and slapdash broken appositives. As some legal wags pointed out years ago, if one were to interpret the presidential eligibility clause in Article II ("No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President") according to the norms of English usage, with the second comma establishing that "at the time" restricts both of the previous clauses, no one who was not alive during the ratification would be allowed to hold the office. Entertaining as it might be, the theory that we have had no legitimate presidents since Zachary Taylor, whose two immediate predecessors were also pretenders, should probably be dismissed out of hand.

What does the text suggest to us about the suddenly live issue of a post-presidential impeachment trial? On its face, it seems risible to suggest that a constitutional mechanism that exists in the popular imagination primarily to facilitate the removal of a sitting public official — in this case the president himself — could be applied to one whose term has expired rather than because, as House precedent has established, because he resigned in the hope of avoiding impeachment.

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No one is likely to argue that the Senate has the power to remove a former president from an office that he no longer holds. A more relevant question is about the constitutional penalty of disqualification that is also outlined in the text. On first reading it seems to me obvious that President Trump cannot be barred from holding federal office as a consequence of a Senate trial conducted after he has left office. This seems true simply as a matter of grammar. The relevant portion of Article 1, section 3 reads as follows:

Here I am inclined to argue that the comma following "Office" suggests that what follows is meant to be understood appositively, as further defining what removal entails, which is to say, disqualification from holding future federal office in addition to liability for future criminal prosecution. If disqualification were meant to be a separate punishment, something that could be handed down by the Senate even when the guilty party no longer held office, the conjunction would have been "or," which is ubiquitous in state and federal sentencing statutes ("a fine not to exceed $100,000 or imprisonment not to exceed 40 years, or both").

All of which is to say that for both grammatical and logical reasons — a person who is not being removed from office cannot incur a penalty that accompanies such a removal — the question of Trump's disqualification from office as a result of a hypothetical Senate trial seems to be settled: He will not be disqualified from running for president again in 2024, when he will be 78 years old.

My reading, which I suspect is about to become ubiquitous in right-wing circles, is textually plausible. But I have some doubts about its relationship to the actual intentions of the framers and to the comparatively small but fascinating body of impeachment law. While a longstanding body of argument (mostly from conservative legal scholars) has suggested that former presidents cannot be impeached, much less convicted, history suggests otherwise. This includes English history, which contains, among other anomalies, the impeachment in the House of Commons and conviction in the Lords of a private citizen in 1709.

As legal scholar Brian Kalt has shown in his extensive study of the question of the impeachibility of former officials, virtually all of the pre-1787 state constitutions that would have influenced the framers contained provisions which clearly envision disqualification from office as a penalty that may be handed down following an impeachment conviction rather than as the mere consequence of removal from office. Kalt argues that removal and disqualification are distinct penalties, that the Senate could impose the former without the latter or the latter even when the former is a logical impossibility.

Does this mean that Trump is going to be disqualified from seeking the presidency in 2024? The question is still very much an open one, but not because there is much doubt about whether the Senate is capable of barring him from office. Indeed, since he cannot logically be removed it is the only penalty that it could impose following a conviction. (The Senate, Kalt told me, could "impose consequences that are less than full disqualification if it wants — e.g., a time-limited disqualification, or a disqualification only from certain offices. I can't imagine that they would, but I think they could.")

Instead the question is, like the rest of the impeachment process, ultimately a political one. (This is why the Supreme Court ruled in Nixon v. United States that impeachments are not subject to judicial review, which means that Trump cannot count upon the 6-3 conservative majority to save him.) Can Democrats find the 17 GOP votes necessary to secure a two-thirds supermajority? Only 10 Republicans in the House voted for impeachment, a fraction of the current membership. I think the answer will very much depend upon whether moderate senators believe that Trump intends to run again in 2024; if he does not, I suspect that they will take the opportunity to shore up their position with the conservative base by voting for acquittal. If he makes it clear that he really does intend to do so, things become more complicated, and I can imagine at least a dozen senators willing to risk a primary challenge in the hope of extricating the former president from our civic life.

As Nixon used to say, "Count your friends when you're down."