JOSH BLACKMAN AND SETH BARRETT TILLMAN: New Evidence and Arguments About the Scope of the Impeachment Disqualification Clause: A Response to the House of Representatives’ Managers’ Trial Memorandum.

For more than a decade, Tillman has written that the phrase “Office . . . under the United States” reaches only appointed federal positions. In 2014, well before President Trump announced that he would run for the presidency, Tillman published a full-length article opining on the scope of the Impeachment Disqualification Clause, which uses the phrase “Office . . . under the United States.” And for the past four years, we have filed multiple amicus briefs and published several articles contending that the phrase “Office . . . under the United States” does not apply to the presidency, an elected federal official. In 2017, we addressed a frequently asked question about our taxonomy:

Under the [impeachment] disqualification clause, can Congress prospectively bar an impeached officer from being elected to Congress or to the presidency?

. . . [The Impeachment Disqualification Clause] grants Congress the power to prevent a convicted party from being appointed to a federal position, but does nothing to prevent a convicted party from being elected to the House, Senate or the presidency. . . .

The Senate may choose to impose disqualification. But, as a general matter, subsequent boards of election and independent courts will determine the scope of a Senate disqualification. This fact will remain true even if a Senate disqualification should expressly purport to bar the defendant from holding the presidency. Moreover, such a declaration would break with tradition. We are not aware of any prior Senate that specifically disqualified a convicted person from holding a specific position. Given the Senate’s few historical precedents with respect to disqualification, we were surprised that the House of Representatives’ Managers’ trial memorandum even addressed the scope of disqualification. Albeit, the memorandum devoted only a single footnote to this question.

Much more at the link, including this: “Assuming the legality of late impeachment in the current circumstances, House managers may be able to seek a conviction for its expressive function, and they can seek disqualification as a bar against Trump’s holding appointed federal positions in the future. The scope of Senate disqualification is a different issue. We have put forward our position over the course of more than a decade: the better view is that the Senate cannot bar Trump from running for and holding elected federal positions. Let the People decide.”