Thursday, October 16, 2014

Let Me Be Blunt: In 'Blount', the Senate Never Said that Senators Aren't Impeachable

This article by Buckner F. Melton, Jr., is forthcoming in Quinnipiac Law Review, Vol. 33, 2014, and is now available at the Social Science Research Network.
"Abstract: The Senate motion in Blount that supposedly stands for the proposition that legislators aren’t impeachable—the motion to dismiss the House’s Blount impeachment—contains no subtleties to trap the unwary; no intricate analysis is needed. The frequent claim—made by both academic historians and lawyers, including Mr. Cassady [Benjamin Cassady, 'You’ve Got Your Crook, I’ve Got Mine': Why the Disqualification Clause Doesn’t (Always) Disqualify, 32 Quinnipiac L. Rev. 209 (2014)]—that the Senate decided, in the Blount case, that senators aren’t civil officers, or that members of Congress aren’t subject to impeachment, is simply flat-out wrong. Yet people keep on making it.

"My main point in this response to Mr. Casssady is simple: If senators can be impeached, then the notion that an impeached senator can be removed from the Senate but not disqualified from returning to the Senate seems counterintuitive. And if senators can be barred from future Senate service, then so should all convicted and disqualified impeachment defendants, whatever their government position."

(via Seth Barrett Tillman, who comments:)
"Melton’s (maximalist) position is that the Constitution’s 'office' language (i.e., at least that language relating to impeachment and disqualification) extends to Senators and to other elected officials. My (minimalist) position is very different. I have argued that the Constitution’s 'Officer of the United States'-language and 'office ... under the United States'-language reach only appointed officers, and do not encompass any elected officials (e.g., President, Vice President, members of Congress, and federal electors). That said, I have a deep and abiding respect for Melton’s paper and evidence, which is based on careful analysis and early American materials. This is an important paper by the leading authority on the Blount impeachment. Although a good many academics have assumed that the maximalist position is correct or have based their support on a cursory analysis of text, history, precedent, and structure, Melton’s article is the first fulsome reasoned defence of the maximalist position.

"Additionally, Melton has argued that a wide array of a scholars (including historians and legal academics) have misstated the Senate’s holding in Blount. On this point, he and I are ad idem."