The House impeachment managers have submitted an 80-page “trial memorandum” explaining why the former president should be convicted in the Senate and disqualified from ever occupying a federal office again. It describes the ex-president’s lies regarding who won the election and his encouragement of the mob that attacked the Capitol. It also explains why it makes perfect sense from a legal, historical and practical perspective for the Senate to convict impeached officials even though they have left office.
In response, the creep’s lawyers have submitted a 14-page response that’s too stupid to discuss (although it will give most Republican senators an excuse to vote against conviction).
Anyway, here’s a specific issue I want to discuss. It’s a grammatical problem with the U.S. Constitution. This is the troublesome passage:
The Senate shall have the sole Power to try all Impeachments. . . . Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States . . .
Since you can’t remove somebody from office after they’ve left office, there seems to be a problem here. The former president’s lawyers (who are unlikely to ever receive a dime from their client) put it this way:
Since the 45th President is no longer “President,” the clause ‘shall be removed from Office on Impeachment for…’ is impossible for the Senate to accomplish, and thus the current proceeding before the Senate is void ab initio [“from the beginning”] as a legal nullity that runs patently contrary to the plain language of the Constitution.
So, although other officials have been convicted by the Senate after they’ve left office, and barring someone from holding office again used to be the main reason for impeaching somebody, as opposed to removing them from office, and almost all experts on the Constitution say it’s totally fine to convict somebody after they’ve left office, and presidents could commit all kinds of High Crimes and Misdemeanors near the end of their term if you couldn’t convict them after they left the White House, the “plain language” of the Constitution does include that three-letter word “and”.
If only James Madison, George Washington and their colleagues had used the phrase “and/or” instead of “and”! Judgment against an official would extend to removal “and/or” disqualification. There wouldn’t be any room for confusion. The Constitution’s meaning would have been perfectly clear.
Unfortunately, nobody at the Constitutional Convention was familiar with the phrase. The first known use of “and/or” occurred in 1853, sixty-four years after the Constitution was written.
Alternatively, the framers could have used “or” instead of “and”, giving us “removal or disqualification”. But then some lawyer would have claimed that an official can’t be removed from office and disqualified at the same time. They’d argue that the Senate would have to choose between the two options, either one or the other (understanding “or” in this case as the “exclusive or”, meaning one or the other, not both).
In the near future, we’ll learn how all this plays out in the Senate. Nobody seems to think 17 Republican senators will agree to convict the demagogue, and without 50 Democrats and 17 Republicans voting “Yes”, he will escape judgment again.
Going forward, however, I have a suggestion. We English speakers need to adopt a single term for what’s called the “inclusive or”, i.e. the meaning of “or” that implies “this or that or both this and that”. It’s rather amazing that it took hundreds of years for somebody to invent “and/or” to do the job. But since it’s not a word — unlike hyphens, a slash isn’t ordinarily used to combine other words — we need a new word to take on this function. Perhaps unsurprisingly, I suggest “andor” without a slash. “Andor” sounds the same as “and/or” and after a while it wouldn’t look weird.
This isn’t the first time I’ve argued for a change like this. Four and a half years ago, I pointed out that we should change the way we use quotation marks. I won’t go into the details again (you can review my argument at length here), but instead of writing sentences like these:
He said “Go away.”
I can spell “cat.”
We should write them like this:
He said “Go away”.
“I can spell “cat”.
The quotation mark should go in front of the period, not after!
So far, my quotation mark suggestion hasn’t exactly taken the world by storm. Maybe I was simply ahead of my time. At any rate, please do consider adopting my suggestion from today andor my suggestion from 2016. (See how incredibly easy that is?)