Constitutions, statutes, and regulations create public offices, and frequently such legal instruments also create qualifications for those offices. When positive law creates qualifications for elected positions, these restrictions limit the scope of democratic choice. It has been suggested from time to time that other constitutional provisions are qualifications or functional qualifications in regard to (some or all) elected federal positions.
Once again, this issue has become topical. Hillary Clinton, a former Secretary of State and former Senator, is a prominent candidate in the upcoming Democratic Party primary elections. These primaries select delegates to a national convention which will choose the Democratic Party’s candidate for the november 2016 popular presidential election. It has been alleged that, during her term of service as Secretary of State, Clinton violated a provision of the federal statute mandating government record keeping.
Whoever, having the custody of any such record, proceeding, map, book, document, paper, or other thing, willfully and unlawfully conceals, removes, mutilates, obliterates, falsifies, or destroys the same, shall be fined under this title or imprisoned not more than three years, or both; and shall forfeit his office and be 18 U.S.C. § 2071(b) (1994) (emphasis added).
Section 2071’s language poses two interesting interpretive challenges.
First, what is the scope of the statute? In other words, does Section 2071’s generally worded “office under the United States” language extend to the presidency?
Second, if Section 2071’s general “office under the United States” language fairly encompasses the presidency, is the statute constitutional? In other words, does Congress have the power to create additional qualifications for the presidency beyond those already expressly stated in the Constitution’s text?
In determining the scope of Section 2071’s generally worded “office under the United States” language, we cannot rely on clearly established Supreme Court or other federal judicial authority “Office under the State” is a close textual analogue of “office under the United States.” However, state case law using “office under the State” is divided. Charles Gordon, In Unless a person in the service of the government, therefore, holds his place by virtue of an In The seat into which [the defendant-senator] was originally inducted as a Senator from Kansas could only become vacant by his death, or by expiration of his term of office, or by some direct action on the part of the Senate in the exercise of its constitutional powers. This must be so for the further reason that the declaration in [the statutory provision], that anyone convicted under its provisions shall be incapable of holding any office of honor, trust, or profit ‘under the government of the United States,’ refers only to offices created by, or existing under the direct authority of, the national government, as organized under the Constitution, and not to offices the appointments to which are made by the states, acting separately, albeit proceeding, in respect of such appointments, under the sanction of that instrument. While the Senate, as a branch of the legislative department, owes its existence to the Constitution, and participates in passing laws that concern the entire country, its members are chosen by state legislatures, and cannot properly be said to hold their places ‘under the government of the United States.’
The legal populist approach is the interpretive position of the person on the street. The populist’s position is largely an intuition or feeling. As Baron Devlin explained:
He is not expected to reason about anything and his judgement may be largely a matter of feeling. It is the viewpoint of the man on the street— or to use an archaism familiar to all lawyers—the man in the Clapham omnibus. He might also be called the right-minded man. P
I expect our rider on the Clapham omnibus (or to make the analogy more on-point, the American rider on the bus going past the Supreme Court of the United States)—if asked to squarely address Section 2071’s meaning— would say:
In everyday language, the presidency is described as an ‘office,’ and the president is an ‘officer.’ Similarly, the presidency is not a state or municipal position; rather, it is a national or federal position whose occupant is responsible to the United States, and its people, as a whole. Therefore the presidency can be characterized as “under the United States.” Because the presidency is an “office” and because the President works for “the United States,” it would seem to follow that the presidency is an “office under the United States” as that language is used in Section 2071. Indeed, our bus rider’s intuition would not lack some good authority: the Constitution of the United States describes the presidency as an “office,” although nowhere expressly describing the presidency as an “office under the United States.” I have had occasions in the past to express my views in regard to the scope of the Constitution’s “office under the United States” language and its variants.
For example, Megyn Kelly, a national newscaster stated:
And I refer the audience to 18 U.S. [C]ode, [S]ection 2071-B, look at it. ‘Whoever having the custody of any federal record, willfully and unlawfully conceals removes or destroys the same shall be fined or imprisoned or both’ and listen—‘and shall be disqualified from holding any office under the United States.’ If [Hillary Clinton] willfully concealed these emails, not only did she commit a crime, she cannot be president. Megyn Kelly & Shannen Coffin,
Likewise Sean Hannity, another national newscaster, had an exchange on the scope of Section 2071 with Michael Mukasey. Mukasey is a former Attorney General of the United States and also a former Chief Judge of the United States District Court for the Southern District of new York. Hannity and Mukasey stated:
Hannity: Let’s go to the third law that we’re talking about here. And this would be 18 U.S. [C]ode [§] 2071.... I would think that [violating
Section 2071] would mean you can’t be the [P]resident of the United States....
Mukasey: I would think it would mean precisely that, among other things.
Finally, Professor Akhil Amar has stated, without any equivocation or even any acknowledgment of contrary views, that “[t]he presidency is an ‘office under the United States.’” A
In each example above, the two national newscasters, the (former) Attorney General, and the academic from Yale Law School—no analysis, no reasoning, and no authority is put forward. This is not surprising because here the basis of the position is a simple text-based intuition. The reader should in no way imagine that my exposition here is sarcastic. Interpretations of legal text that veer far from the intuitions of the person in the street—or, from the intuitions of the legal expert who is immersed in the law—risk losing popular legitimacy.
Some early American materials cast light on the meaning of “office under the United States.” Indeed, we can turn to two separate incidents from President George Washington’s first administration to understand the meaning of this somewhat opaque phrase.
The Constitution’s Foreign Emoluments Clause provides:
[N]o Person holding any U.S. C
Does this provision’s
On December 22, 1791, the French ambassador to the United States, Jean-Baptiste, chevalier de Ternant, sent President George Washington a letter stating: “Permit me to present you with a new print of the king of the [F]rench—I shall feel a very great Satisfaction if you will consider that feeble mark of my lively and respectful attachment for your person, as worthy your kind Letter from Ambassador Ternant to George Washington (Dec. 22, 1791),
President Washington replied the same day. He wrote:
Philadelphia, Decr 22nd 1791.
Dear Sir,
I
Go: Washington. Letter from George Washington to Ambassador Ternant (Dec. 22, 1791),
Washington
Is it possible that President Washington erred in regard to accepting the French ambassador’s gift, but failing to ask for congressional consent? evidence arising in connection with the Washington administration is generally considered superior to that of later administrations. Nine states were required for ratification.
President was a Framer George Washington, a Virginia delegate, attended the Philadelphia Convention which drafted the Constitution. First, Alexander Hamilton, a New York delegate, attended the Philadelphia Convention. Second, Edmund Randolph, a Virginia delegate, attended the Philadelphia Convention. Third, James McHenry, a Maryland delegate, attended the Philadelphia Convention. Fourth and finally, Gouverneur Morris, a Pennsylvania delegate, attended the Philadelphia Convention. First, Alexander Hamilton was a ratifier: he attended New York’s state convention which ratified the Constitution. Second, Edmund Randolph was a ratifier: he attended Virginia’s state convention which ratified the Constitution. Third, Timothy Pickering was a ratifier: he attended Pennsylvania’s state convention which ratified the Constitution. Fourth, Joseph Habersham was a ratifier: he attended Georgia’s state convention which ratifieding that Habersham had signed the document recording the Georgia convention’s ratification). Habersham succeeded Pickering; thus Habersham became President Washington’s third Postmaster General. Fifth and finally, Thomas Pinckney was a ratifier: he attended South Carolina’s state convention which ratified the Constitution; indeed, he was president of the state convention.
There is a second precedent from the Washington administration. In 1792, the Senate ordered Secretary of the Treasury Alexander Hamilton to draft a financial statement listing all persons holding “office... under the United States” and their salaries. Hamilton took more than nine months to draft a response. Hamilton’s response, in 1793, was some ninety manuscript-sized pages. In it, he included personnel in each of the three branches of the federal government. But Hamilton did not include the President, Vice President, Senators, or Representatives. In other words, Hamilton included only those holding office via appointment, but not anyone holding a constitutionally-mandated or elected federal position.
Later commentators seem to agree. McKnight, a late nineteenth-century commentator, discussing how “office” language was used in the Constitution, stated: “It is obvious that... the President is not regarded as ‘an officer of, or under, the United States,’ but as one branch of ‘the Government.”’ D A
The origins of Section 2071’s disqualification-related “office under the United States” language go back to the modern statute’s 1853 predecessor.
Although this historical approach has a certain attractiveness, it is hardly decisive. our goal here is not to understand how “office... under the United States” was used in 1791 (per Washington), in 1793 (per Hamilton), or in 1878 (per McKnight), or thereafter. Nor is our goal to understand how this phrase (or closely similar statutory terminology) was understood in other contexts, domestic and foreign, unrelated to Section 2071. Rather, our goal “is to construe the language [of the statute] so as to give effect to the intent of Congress.” United States v. Am. Trucking Ass’ns, 310 U.S. 534, 542 (1940) (Reed, J.).
Recognizing the ambiguity and difficulty in regard to determining Congress’ intent in regard to Section 2071’s “office under the United States” language, this approach turns to general presumptions, principles, or canons of statutory interpretation.
It is an accepted principle of federal statutory construction that general language in a statute, such as “agency,” which does not explicitly refer to the presidency amounts to “textual silence.” Franklin v. Massachusetts, 505 U.S. 788, 800 (1992) (O’Connor, J.);
It is not clear that these concerns are at play here. For example, if in the future former Secretary Clinton were elected to the presidency, and if prior to the start of her four-year term she were convicted under Section 2071, then, arguably, such a conviction would
On the other hand, the Department of Justice’s Office of Legal Counsel has argued that this principle of statutory construction applies where the statute’s application impinges on the “President’s constitutional prerogatives.” Memorandum for the General Counsels of the Federal Government, 20 Op. O.L.C. 124, 1996 WL 876050, at *34 (1996) (Dellinger, A.G.). Consider a slightly different context. If after she were to win the November 2016 popular general election, Clinton were prosecuted under Section 2071 by the outgoing administration, and afterwards sworn into office in January 2017, and subsequently convicted, then Section 2071’s disqualification provision would not keep her from becoming President, but would instead (arguably) remove her from office. Although such a result might not impinge on the “
Furthermore, this principle of statutory construction—i.e., that general language in a statute does not cover the presidency—has been understood to apply even where the stated policy concerns are not at play. 5 U.S.C. § 6105 (1966).
The President’s staff sought advice from the Office of Legal Counsel. After an examination of the provision’s text and legislative history, then-Assistant Attorney General William H. Rehnquist (later Chief Justice of the United States) concluded:
[S]tatutes which refer to ‘officers’ or ‘officials’ of the United States are construed not to include the President unless there is a specific indication that Congress intended to cover the Chief Executive. Memorandum from William H. Rehnquist, Assistant Attorney General, for the Honorable Egil Krogh, Staff Assistant to the Counsel to the President, Office of Legal Counsel, Re: Closing of Government Offices in Memory of Former President Eisenhower 3 (Apr. 1, 1969),
I have found no evidence of any such “specific indication” in reported congressional debate on the 1853 statute; Memorandum from William H. Rehnquist,
Another well-settled canon of statutory construction—the democracy canon—is that statutory and constitutional language limiting eligibility to office is interpreted narrowly. As
Statutes limiting the right of a person to hold office are to be given a liberal construction in favor of those seeking to hold office in order that the public may have the benefit of choice from all those who are in fact and in law qualified. Ambiguities should be resolved in favor of eligibility to office, and constitutional and statutory provisions which restrict the right to hold public office should be strictly construed against ineligibility. 67 C.J.S.
Because Section 2071’s general “office under the United States” language does not explicitly refer to the presidency but does limit candidate eligibility and, in effect, voter rights, this provision should not be interpreted as applying to the presidency.
If a court decides that Section 2071 reaches the presidency, it will then turn to the provision’s constitutionality. The issue here is one of power: may Congress by statute impose qualifications for the presidency beyond those already in the Constitution’s text?
In 1966, Adam Clayton Powell, Jr. was elected to a twelfth consecutive term in the United States House of Representatives. Because of allegations of corruption, when the new Congress met in 1967, Powell was not sworn in with the other members-elect. Thereafter, a House committee produced a report which stated that Powell had, prior to the first meeting of the new Congress, wrongfully diverted House funds to himself and others. The House voted to exclude Powell and declared his seat vacant. Powell sued both to regain his seat and for lost salary. In 395 U.S. 486 (1969) (Warren, C.J.); Powell was only awarded a declaratory judgment because the congressional term for which he had been wrongfully excluded had already ended by the time the Supreme Court reached its decision.
The democratic presumption is that any adult member of the polity... is eligible to run for office.... The requirement in the U.S. Constitution that the President be at least 35 years old and Senators at least 30 is unusual and reflects the felt importance of mature judgment to the effective discharge of the duties of these important offices; nor, as the cases we have just cited hold, may Congress or the states supplement these requirements. Herman v. Local 1011, United Steelworkers of Am., AFL-CIO, CLC, 207 F.3d 924, 925 (7th Cir. 2000) (Posner, C.J.) (citing
Federal district courts, i.e., trial courts, including those outside of Chief Judge Posner’s United States Court of Appeals for the Seventh Circuit, These courts include federal district courts in the United States Courts of Appeals for the First, Third, Fifth, and Sixth Circuits.
Furthermore, the case for exclusivity in regard to the Constitution’s express textual eligibility requirements for the presidency is stronger than the coordinate issue decided in
For all these reasons, it seems likely that
Nevertheless, it is possible to make a principled distinction between the facts and law at issue in
Frequently, the Constitution is interpreted constructively, through implication,
First, the Framers “desire[d] to make the office [of President] as politically independent of Congress as possible.” Jack N. Rakove, However, it should also be noted that in circumstances where the electoral college fails to select a President and Vice President, it is the House which chooses the President, and the Senate which chooses the Vice President.
To the extent that Section 2071 applies to the presidency, both structural concerns discussed above counsel against upholding its constitutionality. Still, such atextual structural concerns are largely intuition-driven and impressionistic. Such concerns may well have weight with some audiences, including some judges, but not with others.
Does Section 2071’s “office under the United States” language apply to the presidency? I expect the rider on the Clapham omnibus thinks so,
As to Section 2071’s constitutionality, If a person were prosecuted under Section 2071 while a candidate or president-elect, and that person were elected and then became President, then continuing the federal prosecution against a sitting President would pose certain practical problems, particularly for unitarists who believe the President has control over all federal law enforcement.