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After walking through the language of the impeachment language enshrined in the United States Constitution, I pointed out that the failure of Chief Justice John Roberts to preside over the impeachment trial of Donald Trump amounts to a gross dereliction of his constitutional duties. In the immediate aftermath, I fielded criticism from folks on social media arguing that my interpretation had to be wrong because Trump is not “the” president, but “a” president.
On the surface it’s an attractive argument. But it’s one that unravels with a cursory review of the whole paragraph in context, a common sense consideration of what a Framer would have meant when choosing that language, and it really crumbles if you take into account the history of impeachments that the Framers drew upon. Such is the perniciousness of the cult of textualism and the arrogance of declaring an “obvious” reading based on snipping words out of context.
Again, here is the language at issue:
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 Impeachment 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.
What does it mean when the presiding officer clause says, “When the President of the United States is tried”? Roberts is seemingly taking the sentence to mean “the” current one. Since “the President” is Joe Biden — despite Rudy’s best efforts — then “the President” isn’t being tried. That’s certainly one meaning of “the” president. But in the context of a passage about trials of breaches of public trust by those holding specific civil offices, “the” is more accurately read as, for instance, “when the office of president is the subject of the impeachment as opposed to when it’s the office of the Secretary of State.”
This is, by the way, how you write any rulebook. And the Constitution is nothing if not a rulebook. It’s why the NFL calls it “roughing the passer” and not “roughing a passer.” It could apply to a QB or to a running back attempting a pass or a punter faking it, because the rule applies to whichever individual acted as “the” passer on a play. Multiple people can throw passes during a game, but the penalty is still defined by who was the passer at the time of the foul. Likewise the same rule refers to “a pass rusher” because multiple people hold that office on any given play. It’s why this is a trial of the president for what he did on January 6, and not a judge.
It also strains common sense to think the Framers were trying to get cute with “the” and “a” in a document where they had just set up a bunch of civil offices including “the” president, but wanted people to apply an acontextual reading “the president” when it comes to one and only one clause. The command that the Chief preside relates to the substance of the impeachment, not the timing of the trial. To assume the Framers intended “the” to mean the latter requires imagining that they chose that particular meaning of “the” because they sat down to craft the sentence specifically in contemplation of the rare instance where late term conduct results in the trial of the president taking place after the term ends? Assuming that wasn’t top of mind when the Framers drafted this language, the plainest read of “the president” is as a description of the substance of the impeachment.
And that’s because the Framers thought presidential impeachments would be a big deal! That’s why they demanded the Chief’s impartial hand. It’s not because they worried about the Chief’s schedule.
Here’s where Jonathan Turley’s 1999 article on impeachments — that everyone is trolling him for contradicting himself over now that it’s convenient for him — is also instructive. In the article, Turley charts the history of impeachments from the English tradition through America’s experience with this precise language. What he discovers is that the matter of impeaching former officers comes up very rarely, but the consensus is that a private citizen cannot be impeached, but that that does not hinder impeaching a former official because the trial of a former official for their conduct while holding civil office is a trial of the civil officer.
In other words, the weight of legal history surrounding impeachments recognizes that this is not a trial of “private citizen Donald Trump who happened to have once been President,” but “a trial of the President of the United States for his conduct” and the fact that it’s happening two weeks later doesn’t change that.
Like most words, the meaning of “the” depends on context. Anyone reading that passage in 1787 or even 2020 would take it to mean that the Chief Justice is supposed to preside when the trial relates to presidential misconduct as opposed to misconduct by a lower officer. It took a moonshot of unlikely circumstances to create this post-term trial and it’s bonkers to try and use this series of insurrectionist events as an invitation to pluck a word out of context and insert an intention to limit the Chief’s involvement to cases where a sitting president is involved out of whole cloth.
God help me for writing this sentence, but we need a little bit of originalism in here. The original public meaning of this passage isn’t difficult to suss out.
Earlier: John Roberts Weaseling Out Of Donald Trump Impeachment Trial Warrants His Own Impeachment
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.