Unimpeachable?

Yesterday, NRO ran an article I'd written about the House of Representatives' mishandling of the controversy surrounding Rep. William Jefferson and the search of his congressional office by the FBI. The thrust was that, instead of intemperate attacks on the Justice Department, the House should instead focus on a member whose continuing presence is a blight on the Congress.

After noting an extremely ill-considered, veiled threat by one congressman, who alluded to the House's power to impeach the attorney general of the United States, I countered that “[t]he House also has the power to impeach Rep. Jefferson.”

This may not be true—although the case for the point I was trying to make is actually better for me and worse for the House.

The Constitution makes each house of Congress the sole judge of its own members' qualifications (Art. I, 5). This means either house can expel one of its own members, without consulting the other (and, for that matter, without consulting any other branch of government). Expulsion is thus an easier process than impeachment and removal. The latter requires what is essentially an indictment (the impeachment) by the House, and conviction at trial (the removal) by a two-thirds super-majority in the Senate.

Consequently, the House could expel Jefferson on its own if it had the gumption to do it.

Could Jefferson be also impeached? The answer may be no, although it's unclear. Further, the matter is largely academic: given the facility of expulsion, impeachment seems superfluous, and thus highly unlikely.

Article I, Section 2 of the Constitution provides that the House has the “sole Power of Impeachment[,]” and contains no textual limitation on who may be impeached. Article I, Section 3, Clause 6 gives the senate the sole power to try impeachments. Clause 7, however, goes on to complicate matters. It provides (italics is mine):

Judgment in Cases of Impeachment shall not extend further than removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States; but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

The term Office in this clause has sometimes been construed to refer to the position held by an Officer of the United States. This is important because, under the Constitution, members of Congress are not officers of the United States. (To promote separation of powers, Article I, Section 6 stipulates that “no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.”) Article II, Section 4, moreover, states that the president, vice president, and all civil officers of the United States (which includes judges) are subject to impeachment; it does not mention members of Congress.

Yet, that really doesn't settle the matter. The fact that officers are expressly mentioned in Article II as among the impeachable does not necessarily mean no one else is subject to impeachment. Article II, after all, deals directly with officers (i.e., who is an officer and how officers are appointed), so it should not be surprising that its provision about impeachment addresses only officers, not members of congress (who are addressed in Article I).

In addition, when one looks carefully at the key provision of Article I excerpted above (i.e., Clause 7 of Article I, Section 3), it is noteworthy that it does not speak about the conviction of an Officer after impeachment (indeed, it doesn't use the word Officer at all). Rather, it refers to conviction of a Party—a term certainly broad enough to embrace members of Congress. It also bears attention that the power of impeachment is set forth in the same section (Art. I, 2) that prescribes the qualifications of members of Congress. It is thus reasonable (though concededly not indisputable) to infer that impeachment extends to those members.

Apart from the Constitution's terms, what does history teach us? Well, included among the (remarkably few) impeachments in American history is that of a single member of Congress. In 1797, Senator William Blount of Tennessee was found to be complicit in a plot to help the British capture territory in West Florida. The Senate, swiftly and overwhelmingly, voted to expel him. Thereafter, the House voted articles of impeachment, but the senate later declined to try him. It reasoned that because he had already been removed there was no point in an impeachment trial.

Being the only available precedent, the Blount case is frequently regarded as authority for the proposition that members of congress may not be impeached. But that is a shaky conclusion. Blount, after all, was impeached. The Senate could have tried him—it simply elected not to. And, significantly, it is not true that removal is the only point of impeachment. The Constitution provides that another consequence of an impeachment conviction is to disqualify the party from ever holding any office again (a penalty that does not flow from mere removal).

But that raises another question: Is this disqualification from holding office in the future an automatic consequence of impeachment? The more recent case of Rep. Alcee Hastings (D., Fl.) suggests that it is not. In 1989, when he was a federal judge in Florida, Hastings was impeached (by a vote of 413-3) after a bribery and corruption scandal. The Senate voted to convict him. Hastings, as we all know, responded by running for Congress … and winning. (Only in America!)

How could this be? Isn't he disqualified by virtue of his impeachment conviction? He—no to mention the voters of Florida's 23^rd District—says no. There are two arguments in support of this position. First, Hastings has claimed that while the Senate voted to remove him, it did not specify that he was also disqualified from holding office in the future. Must the Senate really to do this? Evidently … although the question is far from settled.

The second argument brings us back full circle. Post-impeachment, Hastings ran for Congress. As we've seen, members of Congress are not officers of the United States. Why should that matter? Again, because the disqualification attendant to impeachment relates to “any Office of honor, Trust or Profit under the United States” (emphasis added). If Office is understood to mean the position held by an Officer of the United States—as we've seen, the same understanding (dubiously) invoked to suggest that members of Congress may not be impeached—it would follow that, even if the disqualification prescribed in Article I, Section 3 were deemed automatic, impeachment as a judge would not foreclose one from thereafter holding congressional office.

At the end of the day, though, all the legal abstractions surrounding the construction of the term Office should not suspend the exercise of our common sense and sensibilities. Membership in the United States House of Representatives is an office of honor and trust. The leaders of Congress should be asking whether Rep. Jefferson fits that bill. And upon finding he does not, they should expel him.

— Andrew C. McCarthy, a former federal prosecutor, is a senior fellow at the Foundation for the Defense of Democracies.