I Introduction: The Key Legal Issues
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.1 nevertheless, such restrictions on democratic choice have a long pedigree2 in a variety of jurisdictions.3 Adjudications relating to qualifications to public office are not uncommon.4 Likewise, in the United States, the Constitution sets out qualifications for elected federal officials: i.e., Representatives, Senators, President and Vice President. Such qualifications include, among others, provisions relating to age, citizenship, and residence.5 Courts and commentators have long debated whether the qualifications in the Constitution’s text are exclusive (i.e., floors and ceilings) or whether they are merely floors, which can be supplemented by additional qualifications imposed by Congress and/or by the States.
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.6 Section 2071 of Title 18 of the United States Code provides:
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 disqualified from holding any office under the United States.7
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?
II What is the Scope of the Statute?
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 authority8 because “the application of [Section 2071] to the Presidency has never been tested.”9 Likewise, the courts have not squarely opined on whether the same or closely similar language in other statutes reaches the presidency.10 In the absence of good judicial authority, and for the purpose of expositional clarity, I focus on three approaches for resolving the interpretive issue: the legal populist approach, the historical approach, and the legal presumptions approach.
A The Legal Populist
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.11
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 2071.12
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.13
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.14
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.’”15 Albeit, Amar was explaining how that phrase is used in the Constitution, not Section 2071.
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.16 To sum up, if the legal populists’ intuitionist approach is correct, if the meaning of “office under the United States” extends to the presidency, then a conviction under Section 2071 imposes a statutory bar against holding the presidency.
B The Historical Approach
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.
1 President George Washington’s Gift from the French Ambassador
The Constitution’s Foreign Emoluments Clause provides:
[N]o Person holding any Office... under the [United States], shall, without the Consent of the Congress, accept of any present, Emolument, office, or Title, of any kind whatever, from any King, Prince, or foreign State.17
Does this provision’s office under the United States language apply to the President?
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 acceptance.”18
President Washington replied the same day. He wrote:
Philadelphia, Decr 22nd 1791.
I accept, with great pleasure, the new and elegant print of the King of the French, which you have been so obliging as to send to me this morning as a mark of your attachment to my person. You will believe me, Sir, when I assure you, that I have a grateful and lively sense of the personal respect and friendship expressed in your favor which accompanied the Print, and that I am, with sentiments of sincere esteem and regard, Dear Sir, your most obedt Servt
Washington accepted the ambassador’s gift (the print and its frame), he kept the gift, and he never asked for congressional consent to accept or to keep the gift. This gift was not one of de minimis value,20 nor was it a gift from a close personal friend or relative of Washington’s. It was an official or diplomatic gift from a foreign ambassador to our head of state.21 This incident suggests that President Washington was not an Officer... under the United States, and that he did not conceive of his position as one.
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.22 Why? First, Washington’s administration was contemporaneous with the Constitution’s ratification.23 Second, the
President was a Framer24 and his cabinet (and administration) contained other prominent Framers25 and ratifiers.26 Indeed, between the President and his nine cabinet members (over the course of two terms), half of the group were either Framers or ratifiers or both.27 Third, the President saw himself above party or faction; indeed, active partisan federal electoral politics did not arise until after Washington announced that he would not run for a third term.28 Fourth, Washington both valued his reputation for probity and acted under the assumption that his conduct was closely monitored by political opponents and opportunists.29 Fifth, Washington understood that his personal and his administration’s conduct were precedent-setting in regard not only to significant deeds, but even in regard to what might appear to be minor events and conduct.30 Indeed, the dominant view is that Washington’s conduct deserves special deference in regard to both “foreign affairs”31 and “presidential etiquette.”32 Both of these latter considerations apply to the facts, circumstances, and legal issues surrounding President Washington’s accepting the French ambassador’s gift. It follows then that if Washington did not err, then the President is not encompassed by the Foreign Emolument Clause’s “office... under the United States” language. It would seem to follow that if President Washington was not an “office[r]... under the United States” for the purposes of the Foreign Emoluments Clause, then president-elect Clinton (should she be elected) would not be an “office[r] under the United States” under Section 2071.
2 Secretary Hamilton’s List
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.33 If the presidency was not an “office.. . under the United States” for the purposes of Hamilton’s list, it would seem to follow that the presidency is not an “office under the United States” as that phrase is used in other legal documents and instruments, including Section 2071.
3 Post-Civil War Scholarship
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.”’34 Likewise, Anne Twomey, a modern commentator, discussing how “office under the Crown” is used in Australian law, stated: “As [the public position at issue] is an elective office, and not generally subject to the direction or supervision of the government, one would assume that it is not an office held ‘under the Crown’.”35
The origins of Section 2071’s disqualification-related “office under the United States” language go back to the modern statute’s 1853 predecessor.36 As explained, we have eighteenth-century precedents from President Washington and his administration, late nineteenth-century scholarly authority, and modern scholarly authority, domestic and foreign, indicating that this “office under the United States” language (or closely similar language) does not reach elected positions, such as the presidency. This would seem to indicate that the 1853 statute’s “office under the United States” language and its modern successor, Section 2071, do not reach the presidency.
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.”37 Thus, this historical argument is convincing to the extent we can be confident that Congress in 1853 was making use of standard legal jargon, whose meaning was: (i) static since Washington’s and Hamilton’s day; (ii) singular and undisputed; and (iii) shared widely at the time Congress enacted this provision.
c Presumptions of Statutory Interpretation
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.
1 General “Office” Language does not Reach the Presidency
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.”38 Such “textual silence is not enough to subject the presidency to the provisions of”39 a statute. This principle of statutory construction is primarily rooted in two policy concerns: “separation of powers and the unique constitutional position of the President.”40
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 prevent Clinton, the president-elect, from becoming President in the first instance, and presumably, someone else (i.e., the vice president elect) would succeed to the presidency. Such a successor, as a formal legal matter, would be free to exercise all the powers and prerogatives of the presidency. However, it is possible (perhaps likely) that a successor in such circumstances would not enjoy the broad democratic mandate of a president-elect: as a practical matter, such a successor might be unable to wield the full powers of office.
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.”41 One might suggest that, notwithstanding the availability of a successor, a statute which prevents a president-elect from becoming President, and therefore, which prevents such a person from exercising any presidential powers, is one which impinges on the “president’s constitutional prerogatives.” If this syllogism is substantially correct, it follows that Section 2071’s general “office under the United States” language does not apply to the presidency.
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.42 For example, former President eisenhower died on March 28, 1969. President Nixon planned to close federal government offices on March 31, 1969 in memory of his dead predecessor. However, 5 United States Code Section 6105 stated: “An Executive department may not be closed as a mark to the memory of a deceased former official of the United States.”43
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.44
I have found no evidence of any such “specific indication” in reported congressional debate on the 1853 statute;45 indeed, I found no congressional debate in any way addressing the statute’s “office under the United States” language. Furthermore, Rehnquist opined that this principle of statutory interpretation is “particularly applicable” where the statute is “obscure.”46 All this is some reason to conclude that Section 2071’s general “office under the United States” language does not cover the presidency.
2 Interpretations of Statutory Language Restricting the Scope of Democratic Choice are not Favored
Another well-settled canon of statutory construction—the democracy canon—is that statutory and constitutional language limiting eligibility to office is interpreted narrowly. As Corpus Juris Secundum, a leading treatise, explains:
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.47
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.
III If the Statute Reaches the Presidency, is it Constitutional?
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?
A Judicial Authority
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 Powell v. McCormack,48 decided in 1969, the Supreme Court held that the House’s refusal to seat Powell—his exclusion—was unconstitutional.49 In other words, the House can only exclude a member-elect based on qualifications expressly stated in the Constitution: e.g., age, years of citizenship, and inhabitancy.50 Allegations of corruption, even if proven, will not do. Thus, notwithstanding the Constitution’s textually demonstrable commitment granting the House authority (if not exclusive authority) to judge its members’ qualifications,51 the House’s excluding a member-elect for any other reason is unconstitutional. Powell’s result was hardly surprising: Alexander Hamilton, prior to ratification of the Constitution, took this position in The Federalist,52 as did other prominent early post-ratification commentators, such as Justice Joseph Story.53
Powell and its progeny54 have come to stand for the proposition that the Constitution’s express textual qualifications in Article I for membership in the House and Senate are exclusive. Moreover, the rationale of Powell— i.e., the primacy of the Constitution’s express provisions setting fixed textual qualifications—would equally apply to the eligibility provisions for the presidency in Article II.55 Indeed, this extension of Powell appears uncontroversial. For example, in dicta, Chief Judge Posner explained:
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.56
Federal district courts, i.e., trial courts, including those outside of Chief Judge Posner’s United States Court of Appeals for the Seventh Circuit,57 and state courts58 have taken a similar stance. So has much persuasive scholarly authority.59
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 Powell, i.e., the exclusivity of the Constitution’s express textual qualifications for House seats. The power to judge members’ qualifications is expressly and unambiguously committed to each house of Congress,60 but no such express power is unambiguously committed to Congress in regard to adjudicating a contest involving a presidential candidate’s, president-elect’s, or President’s eligibility requirements.61 It would seem to follow that if Congress has no power to add to the standing qualifications of its own members, then it cannot add to the standing eligibility requirements for the other constitutionally-mandated elected federal positions,62 i.e., the President and Vice President.
For all these reasons, it seems likely that Powell is controlling, and that applying Section 2071’s “office under the United States” language to the presidency is unconstitutional. Indeed, the more likely that Powell is seen as controlling because the constitutional principles at stake are clear, the less likely it is that Congress—whose members are presumed to understand the Constitution’s broad structural requirements—intended its “office” language to apply to elected positions, such as the presidency.63
Nevertheless, it is possible to make a principled distinction between the facts and law at issue in Powell from the consequences of a potential Clinton-related prosecution and conviction under Section 2071. Powell involved a legislative investigation and adjudication culminating with a resolution of a single house to exclude a member-elect. Such quasi-judicial action by an elected chamber poses due process risks, particularly because the members are both the investigators and decision-makers, because the members are political partisans, and because the members decide by simple majority voting. By contrast, Section 2071 is a provision of a federal statute, part of the supreme law of the land,64 subject to bicameral passage and presidential veto.65 Moreover, Section 2071 contemplates the full array of traditional judicial due process rights, including: an independent Article III judge, a right to a grand jury, and a right to an impartial (unanimous) jury.66 Given the greater respect due a statute (as opposed to a single-house resolution), and the greater procedural protections a defendant has in the context of a Section 2071 criminal prosecution (as opposed to a congressional investigation), a court might distinguish Powell and uphold the constitutionality of a federal statutory provision (such as Section 2071) even in cases where the statutory provision has the effect of adding qualifications to elected federal positions,67 including the presidency.
B Constitutional Structure
First, the Framers “desire[d] to make the office [of President] as politically independent of Congress as possible.”70 Thus, to allow Congress to manipulate presidential qualifications risks making a candidate or sitting President dependent on Congress for election or re-election. Second, the Framers envisioned the People71 choosing the President indirectly through presidential electors.72 Again, allowing Congress to manipulate presidential qualifications risks Congress’ choosing the President, rather than the People of the United States.73
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.74
Does Section 2071’s “office under the United States” language apply to the presidency? I expect the rider on the Clapham omnibus thinks so,75 as do others from more rarefied academic76 and judicial circles.77 But historical materials78 and established principles of statutory interpretation79 cut the other way.
As to Section 2071’s constitutionality, Powell and its progeny,80 along with structural considerations,81 lean against upholding the statute if applied to elected federal positions. But we cannot predict with certainty how the courts will decide this question should it come before them. It seems the better view is that if Secretary Clinton prevails in the election, then a Section 2071 conviction would not bar her from the presidency as a formal legal matter. However, such a conviction (or, perhaps, even a mere prosecution) might effectively derail any ongoing presidential campaign.82 This would be especially true if the prosecution is controlled by a member of her own party, i.e., President Barack H. obama.
Id. at 307 (emphasis added). The Mouat Court clearly identified officer of the United States with appointed positions, not elected ones. This would seem to mean that the President is not an “officer of the United States.” Moreover, Mouat is not an outlier. See also, e.g., Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 497–98 (2010) (Roberts, C.J.) (“The people do not vote for the ‘Officers of the United States.’Art. II, § 2, cl. 2. They instead look to the President to guide the ‘assistants or deputies . . . subject to his superintendence.’” (quoting THE FEDERALIST NO. 72, supra note 5, at 386 (Alexander Hamilton))); Motions Sys. Corp. v. Bush, 437 F.3d 1356, 1372 (Fed. Cir. 2006) (Gajarsa, J., concurring in part and concurring in the en banc judgment) (“It is plain that the President is not an ‘officer of the United States’ for Appointments Clause, Commission Clause, or Oath of Office Clause purposes.”); Ruth C. Silva, The Presidential Succession Act of 1947, 47 MICH. L. REV. 451, 475 (1949) (“‘Officers of the United States’ are appointed by the President and the Senate, by the President alone, by the department heads, or by the courts. Officers in the constitutional sense are not elected by the electoral colleges.”). Of course, even if the President is not an “officer of the United States,” he might be an “officer under the United States,” unless the latter is a subset of the former or unless the two categories are coextensive. Professors Akhil and Vikram Amar have taken the position that the two categories are coextensive. See Akhil Reed Amar & Vikram David Amar, Is the Presidential Succession Law Constitutional?, 48 STAN. L. REV. 113, 114–15 (1995) (“At various points the [Constitution] refers to ‘Officers of the United States,’to ‘civil Officers of the United States,’ to ‘civil Office under the Authority of the United States,’ to ‘Office under the United States,’ and to ‘Office of Trust or Profit under the United States.’As a textual matter, each of these five formulations seemingly describes the same stations (apart from the civil/military distinction)—the modifying terms ‘of,’ ‘under,’ and ‘under the Authority of’ are essentially synonymous.” (emphasis added) (footnotes omitted)). If the Amars’ intuition on this textual issue is correct, if “office under the United States” and “officers of the United States” are “synonymous,” then, per Mouat and its progeny, the presidency is neither an officer of nor under the United States. But see AKHIL REED AMAR, THE LAW OF THE LAND: a GRAND TOUR OF OUR CONSTITUTIONAL REPUBLIC 332 n.8 (2015) (discussing the Incompatibility Clause, and noting that “[t]he presidency is an ‘office under the United States.’” (emphasis added)); but see also AKHIL REED AMAR, AMERICA’S CONSTITUTION:aBIOGRAPHY 171 (2005) (“The instant such a [legislative leader] became acting president, he would thereby ‘hold’ an ‘Office under the United States’ . . . .” (emphasis added)); but cf. Amar & Amar, supra at 136 n.143 (arguing that an acting President is an “officer of the United States”).In Burton v. United States, 202 U.S. 344 (1906) (Harlan, J.), the Supreme Court adjudicated the scope of a statutory provision in which as a consequence of conviction, a party is precluded from “holding any office of honor, trust, or profit under the government of the United States.” Id. at 360. The Court reasoned that such a conviction did not bar a person from a Senate seat.
Unless a person in the service of the government, therefore, holds his place by virtue of an appointment by the president, or of one of the courts of justice or heads of departments authorized by law to make such an appointment, he is not strictly speaking, an officer of the United States.
Id. at 369–70. How the Burton Court’s ratio decidendi would apply (if at all) to the presidency is less than pellucidly clear.
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.’