I have no desire to troll Hillary Clinton, or anyone else. I don’t have that kind of time or interest. And I don’t typically like to write for other law professors. But I saw something that caught my eye and made me curious, albeit in a law-professor-y sort of way.
In a post on August 17, I discussed some of the federal crimes that Hillary Clinton may arguably have committed, depending upon what a subsequent investigation might reveal. One of the relevant statutes is 18 U.S.C. section 2071, which I mentioned, though I did not discuss the statute’s punishment provisions. That statute states that a person who is convicted under 2071 shall be fined or imprisoned up to three years, shall forfeit his office, and is “disqualified from holding any office under the United States.” Recently, former Attorney General Mukasey (whose WSJ commentary on this subject I referenced in my post) has continued to mention 2071 and the disqualification provision as it relates to Secretary Clinton. But I saw that Professor Seth Barrett Tillman has posted a response to Attorney General Mukasey, arguing that any statutory effort to disqualify Secretary Clinton from the Presidency would be unconstitutional. The info is available at the VC, which also notes that General Mukasey agrees with Seth’s analysis. Seth, I might also mention, wrote a terrific article for the Quinnipiac Law Review last year that covers some of this same ground, though is broader in scope, dealing with disqualification upon impeachment.
In sum, Seth makes the following argument. The Supreme Court has stated that neither Congress nor the States may add to, or otherwise alter, the qualifications for being a member of Congress. See Powell v. McCormack; U.S. Term Limits v. Thornton. Those qualifications (age, residency, and citizenship) are fixed by the Constitution, and it would take a constitutional amendment to change them. The same rationale, he argues, should apply to the Presidency (indeed, Seth argues, the rationale is even stronger when applied to the Presidency). Therefore, Congress may not (such as through section 2071) add to or otherwise alter the fixed qualifications for being President (age 35, natural born citizen, 14 years a resident). That is what 2071 tries to do – it creates a qualification (i.e., that the President be someone who did not violate 2071; or to put it another way, a person may not be President if he or she is convicted of the conduct that 2071 forbids).
I have to think about it a bit more, but my initial impression is that Seth’s analysis is correct, and others seem to agree. But I would offer this caveat: Seth’s analysis would apply only to those federal elected offices that have qualifications fixed by the Constitution. It would not render 2071’s disqualification provision unconstitutional as applied to every federal office. That means that someone with a 2071 conviction could never serve in any appointed capacity, merely because of this criminal conviction. Is that constitutional? It is interesting to get beyond the Clinton scenario, and to think about a potential scenario in which such a constitutional question might come up. How might such a statutory disqualification punishment apply to someone who is found to have violated 2071 (or some other federal statute with a disqualification provision) but later in life wants to serve the federal government in some appointed capacity?
Of course, there is the “why does statutory disqualification even matter?” side of this, because anyone who is convicted of violating 2071 would, for that reason alone, have difficulty ever being considered for an appointed position anyway. But still, one could hypothesize such a scenario, and in such a case, 2071’s disqualification language becomes an appointment restriction, and that raises a whole set of constitutional questions that fall outside the scope of Powell and US Term Limits. The statute is tantamount to Congress telling the appointing authority that it can never, ever appoint this person, which seems problematic as a separation of powers matter – this is not advice and consent; it is absolute disqualification before the fact. But if Congress can establish an office by law, and even set qualifications for an office – see, e.g., 28 U.S.C. 505 (requiring that the Solicitor General be “learned in the law”) – can it not also establish disqualifiers for that office?
But what about forfeiture of office under 2071 and like statutes: can Congress, by mere statute, compel the removal of a federal official in the executive branch, or must such removal be accomplished only by impeachment or by the president alone? Congress ordinarily can place removal restrictions on the president with respect to executive officers, so long as those restrictions do not unduly interfere with the President’s constitutional functions. See Morrison v. Olson. But Congress cannot reserve removal power entirely to itself. Is statutory forfeiture tantamount to removal by Congress alone, or is it tantamount to a permissible removal restriction? Of course, one would normally expect a sitting officer to resign or even be removed from office before conviction, so the chances of the issue arising seem remote.
Hopefully, and most likely, we would never have to actually decide any of these questions, the answers to which may well be obvious anyway. Still, these forfeiture and disqualification provisions do raise interesting constitutional questions about the separation of powers and Congress’ unilateral ability to use federal criminal punishment to say who can serve in the other branches of government and who cannot.