Monday, December 09, 2019


Applying Rules of Statutory Construction to the Constitution of the United States

I have been having some success lately in front of Colorado's Court of Appeals regarding poor use of the rules for construing a statute. I won't bore you with the list of these rules, because if the language of the statute is clear on its face, you don't go further. The statute says what it says.

So, let's apply that first, simple rule to the Constitution, Article II, Section 4; that is, let's read the section, which is short and states:

"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."

(Emphasis added)

OK, so Treason is a Crime, Bribery is a Crime, Crimes are Crimes and Misdemeanors are a subset of Crimes. So they are all crimes. The President, to be removed from office, must be impeached and convicted of a crime. It clearly could involve a broad category of crimes, but it has to be a crime. And the only modifier applicable is the word "other" to define the high Crimes and Misdemeanors that follow Treason and Bribery.

Noscitur a sociis is another tool for construing a statute and here both Treason and Bribery are big, important crimes; so the use of the word "other" clearly means the other crimes available for removing a President are of similar importance to Treason and Bribery. Big crimes. That's what it takes. We don't, indeed can't, remove a President for selling liquor to a minor or for careless driving.

I have gone back to telling people that I went to college in the Bay Area of California, rather than mention the name of where I went, because I am ashamed of my University, both the anti-free speech efforts and the horrendously bad professors it continues to employ. 

Anyone who tells you that you don't need a crime to impeach the President is a moron. And the law professor who said the Constitution predated criminal statutes so that the authors could not have meant criminal statues in II/4, is a particular morons. We used the English Common Law before we started writing federal statutes, but that doesn't mean the common law didn't recognize crimes. 

So, easy prediction here; the Articles of Impeachment against President Trump will not mention a crime. 

Anyone want to bet against me?

The Impeachment hearings are so boring, even the chairman fell asleep

UPDATE: Unless there are parts of the United States Code which make the two proposed articles of impeachment actual crimes (and I doubt it, but I will look), it seems I was correct in my prediction above.


Yours is the first place that I've seen emphasize that small word "other." ...and believe me, I've been looking very, very hard for it.

That small word does the hard work of a jack: it lifts the phrase "high crimes and misdemeanors" up onto the same lofty pedestal as that where rest treason and bribery.

There's nothing in Trump's call with Zelensky that gets anywhere near meeting that threshold.

So I just wanted to complement your perspicacity.
Thank you, statutory construction is becoming my specialty lately.
What Trump said to Zelensky is what politicians and heads of state say to each other all the time. It's not a crime. In fact, on first look, neither of the two articles of impeachment the Democrats are offering seem to allege any crime at all.
You might enjoy the meme at the top of Surber's current post. (I like Surber's blog. A lot.)

Glad to see you posting again. I worried that you'd given up....
Came close.

Thanks for your support.

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