Can Hillary’s email troubles stop her from becoming President? Maybe, but not necessarily for the reason you may think
In a recent exchange with a journalist about Hillary Clinton’s burgeoning email controversy, the issue of impeachment came up. It arose in the context of whether or not she could be impeached for her handling of her emails as Secretary of State if she were elected President.
Notionally, the answer seems to be that she could not be impeached from her office as President for her past email handling, but she could (theoretically anyway) be impeached from her office as Secretary of State, and then banned from holding any other office, including the Presidency. Allow me to speculate a bit as to how the law might play out in what I think is actually a very improbable hypothetical.
Article II, Section 4:
The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.
Article I, Section 3:
The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.
Judgment in Cases of Impeachments 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, but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment, and Punishment, according to Law.
Of course, Clinton resigned her post as Secretary of State on February 1st, 2013, but that doesn’t necessarily end the matter. A recent (29 Oct 2015) Congressional Research Service (CRS) report finds that there is precedent for the proposition that resignation does not necessarily operate to terminate the impeachment process. Citing various authorities and precedents – including the 1876 attempt to impeach Secretary of War William W. Belknap who resigned hours before his Senate trial (where he was not convicted by the necessary majority) – the CRS observes that it “appears that federal officials who have resigned have nonetheless been thought to be susceptible to impeachment and a ban on holding future office.” (CRS, pp.16-17)
But criminal liability is not necessarily coterminous with – or necessary for – impeachable offenses. In a 2001 law review article about impeachment offenses in the case of Secretary Clinton’s husband (and then President) Bill Clinton, Professor L. Darnell Weeden of the Thurgood Marshall School of Law concluded that the words “”high crimes or misdemeanors,” for purposes of presidential impeachment, mean whatever the requisite majority in Congress want them to mean.”” I don’t see that the conclusion would necessarily change in the case of impeachment from the office of Secretary of State. (And the CRS would seem to agree – see p.7).
At the same time the better view (albeit not without some conflicting authority) appears to be that impeachment offenses – whatever they may be – are sustainable only with respect to offenses committed while serving in the office the impeachment process is addressing.
Accordingly, if Hillary Clinton were elected President, it seems that she would be subject to impeachment for any past email-related offenses not from the office of President, per se, but only from the office of Secretary of State. If convicted, the issue then would be whether or not the Senate would choose, in the words of the Constitution, to exercise its power to impose “disqualification to hold and enjoy any Office of honor, Trust, or Profit under the United States.”
Thus, it appears that at least theoretically (yet again!), Secretary Clinton could be elected President, but then subject to impeachment not from the office of President, but for matters as Secretary of State, and – if convicted – still disqualified from “any Office” to include the Presidency, even though she committed no misconduct as President. Importantly, let’s note that disqualification from office is not automatic. Although the Senate impeached former Federal Judge Alcee Hastings, it choose not to impose disqualification from holding future office. In 1992 Hastings was elected to the House of Representatives and continues to serve in there.
But if the Senate did vote to disqualify Clinton from the Presidency, would the courts interfere? The orthodox answer would seem to be “no.” In the 1993 case of Nixon v. United States, the Supreme Court addressed a claim by former Federal Judge Walter L. Nixon (no relation to President Nixon) that his Senate impeachment trial was procedurally tainted. The Court, relying on the Constitution’s text that gave the Senate “sole” power to try impeachment, held the issue to be nonjusticiable.
Despite the Nixon case, impeachment for “high crimes or misdemeanors” allegedly committed in a different office would be wholly uncharted constitutional territory, particularly where that person was – subsequent to any allegation of impeachable misconduct – elected President under circumstances where the electorate was plainly aware of the allegations. Indeed, would Nixon – involving an unelected Federal judge – even control?
Here’s another wrinkle: if the Senate constructed the impeachment trial as one “of the President,” the Constitution insists that the “Chief Justice shall preside.” The question then would be what is the scope of the Chief Justice’s power in that position? For example, would the Chief Justice’s power to preside include the authority to determine that, as a matter of law, impeachment from the office of Secretary of State did not necessarily empower the Senate to disqualify such a person subsequently elected President from assuming that office?
Regarding the Nixon precedent specifically, could not one argue that in his capacity as the presiding official at an impeachment trial, the Chief Justice is not for that purpose operating as a member of the judiciary, per se, but rather as a functionary of the Senate as required by the Constitution? So construed, could the underpinnings of the justiciability doctrine be found inapposite, permitting the Chief Justice to assume an adjudicative role as a presiding official that would allow him to make judgments as to the law?
Timing could also matter. For example, the involvement of the Chief Justice in an impeachment trial is predicated on the accused actually being “the President,” so an impeachment after election but before taking the oath of office might obviate any role for him. Putting aside the roles of the Chief Justice, the sheer complexity and importance of the legal issues generated by impeachment after a vote by the Electoral College but before the oath of office might force the Supreme Court to abandon its Nixon precedent as inapplicable to the purely legal issue of Senate jurisdiction viz-a-viz the President in that situation.
My own view (hope?) is that if Secretary Clinton is elected, there would be no effort to impeach her based upon her actions as Secretary of State as I believe that the public ought to make that judgement of her in the polling booth on election day (if she wins the nomination). I say this not as a supporter of Mrs Clinton (as a retired military officer I don’t publicly endorse or support any candidate) but rather because of the possibly irreparable harm and disruption I believe would be done to the democratic process (and that is deliberately a small “d”).
Still, we live in an age when the unthinkable too often becomes thinkable. If an effort did somehow get underway, I believe the Supreme Court might entertain some issues, despite Nixon. For example, the Court may construe a favorable vote, especially by the Electoral College, as a kind of “popular pardon” given articles of impeachment wholly based not on actions while President, but on alleged prior misconduct while serving in a different office.
The Court could – indeed, should – reject Nixon as controlling in such a situation. The Presidency is simply vastly more important to the Nation’s – and the world’s – interests than the fate of any individual Federal judge or other officeholder. In fact, the Court seemed to recognize this when it ruled in 2000 in the controversial Presidential election case of Bush v. Gore :
None are more conscious of the vital limits on judicial authority than are the Members of this Court, and none stand more in admiration of the Constitution’s design to leave the selection of the President to the people, through their legislatures, and to the political sphere. When contending parties invoke the process of the courts, however, it becomes our unsought responsibility to resolve the federal and constitutional issues the judicial system has been forced to confront.
In the extremely unlikely event that the scenario we’ve been discussing actually came about, the Court – in the interests of democracy writ large – absolutely must confront the many unprecedented issues that would inevitably arise. I firmly believe that absent judicial involvement, no disposition (whichever way it went) would have the necessary settling effect that the country would so urgently need in such an extraordinary circumstance