Former federal appeals-court judge J. Michael Luttig helped to persuade Mike Pence that, as vice president, he could not interfere with the count of electoral votes after the 2020 presidential election. [Update: This common understanding of Luttig’s role appears to be wrong.] In the weeks thereafter, he argued that Donald Trump could not be impeached and convicted after his presidency for his post-election conduct. Now he is a leading proponent of the argument that the 14th Amendment disqualifies Trump from the presidency because he engaged in an insurrection.
Ian Ward of Politico recently asked Luttig about the tensions between those two last positions — Congress couldn’t use the impeachment process to disqualify Trump after his presidency, but he was disqualified — and he responded that he was interpreting separate constitutional provisions. Different parts of the Constitution yield different answers: That’s fair enough.
But if he’s right, we’re left with perverse outcomes. A majority of the House and a supermajority of the Senate could have used the impeachment process before January 20, 2021, to throw Trump off the 2024 ballot. But they can’t use that process to throw him off the 2024 ballot now that we’re past January 20, 2021. Meanwhile, various state election officials and state judges can still throw him off the 2024 ballot without have to win any legislative votes anywhere.
The Constitution isn’t perfect, so maybe these anomalous results are what it commands. But we should be reluctant to read individual provisions of the Constitution in ways that combine to produce such oddities unless we have really strong reasons for doing so. I don’t think we do.