The expungement paradox is alive and well 

On June 22, two resolutions have been launched within the Home to expunge from the official report the 2 impeachments of President Donald Trump within the final Congress, “as if the Articles had by no means handed the total Home of Representatives.” 

Whereas “expunge” seems like an alien phrase simply airdropped into Congress’s parliamentary lexicon, it isn’t. The time period seems in Congress’s historical past and precedents courting again not less than two centuries. It simply isn’t invoked all that incessantly. 

The commonest use of the time period is tied to a member’s unauthorized or inappropriate remarks which, by a privileged movement, are taken down and, if adopted, are stricken or expunged from the Congressional File by a vote of the chamber concerned. This motion is often taken on the day of the offense or shortly thereafter.

Nevertheless, there are uncommon cases during which one home or the opposite makes an attempt to attain again to nullify actions taken or phrases spoken in a earlier Congress. This isn’t the identical as amending a regulation enacted by a earlier Congress. That is an motion during which an effort is made by one home or the opposite to rewrite historical past with the stroke of an expunging pen or the swipe of an erasure.

The closest we will come to the presently proposed presidential impeachment nullification is a profitable try again in 1834 to expunge from the Senate Journal the censure of President Andrew Jackson for withdrawing funds from the nationwide financial institution with out his Treasury Secretary first notifying  Congress. The expungement passed off three years after his censure by a earlier Congress.

Drawing on the official historical past of the Senate, right here is how that episode unfolded. In 1832, President Andrew Jackson vetoed a invoice to recharter the Financial institution of the USA. His veto turned a serious problem in his 1832 reelection marketing campaign during which he decisively defeated Sen. Henry Clay. Following the election, Jackson ordered his Treasury secretary to withdraw federal deposits from the financial institution and redistribute them to state banks. That ignited a political firestorm. The nationwide financial institution’s constitution gave the secretary of the Treasury authority to maneuver federal deposits out of the financial institution, however solely after reporting such supposed actions to Congress.

When Treasury Secretary William Duane refused to comply with Jackson’s order to maneuver the deposits, the president fired him and made a recess appointment to interchange him. When the brand new Congress convened in 1833, anti-administration forces held an eight-seat benefit within the Senate, and Clay led the way in which in difficult Jackson’s actions on the financial institution. Jackson learn a message to his Cupboard explaining his determination on the financial institution however refused to share it with Congress. Clay subsequently launched a decision requesting a duplicate of the message and one other condemning the firing of Duane as exercising an influence not granted to the president by the Structure and legal guidelines.  

Following a ten-week debate, the Senate in 1834, by a vote of 26 to twenty, adopted a revised model of the latter decision charging the president with “assuming upon himself authority and energy not conferred by the Structure and legal guidelines, however in derogation of each” — because the Senate historical past describes it, an motion “successfully censuring the president.” Jackson reacted with a robust message of protest that the Senate refused to print in its Journal.

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For 3 years, Sen. Thomas Hart Benton (D-Mo.) campaigned to expunge the censure decision from the Journal. Lastly, in January 1837, Senate Democrats, having regained a majority within the Senate, voted to take away the stain  from the report. By this time, the president was previous and sick, simply weeks from retirement. With a lot pomp and ceremony the 1834 Journal was introduced into the Senate chamber and positioned on the Clerk’s desk. The Clerk took his pen and drew a again line across the censure textual content, “X-ed” it out, and wrote, “Expunged by order of the Senate.” A messenger was dispatched to ship the expunging pen to the ailing Jackson.

Right here is the expungement paradox. On the one hand, there’s a shut precedent involving the president and Congress during which motion was taken by one home towards a president in a earlier Congress. That home voted to expunge a earlier motion from the official report, and that order was truly executed by the Clerk. However, that precedent is just not settled parliamentary regulation, by no means having been challenged as to its power and impact. It’s sci-fi fantasy to assume you possibly can flip again the clock, revisit a previous occasion, and really change the course of historical past. In congressional parlance such a decision is known as a “sense of Congress” expression — a rhetorical system that displays majority sentiment on the time it’s adopted.

Don Wolfensberger is former Republican workers director of the Home Guidelines Committee from 1991-97, culminating as majority chief-of-staff in 1995.  He’s writer of ‘Congress and the Individuals: Deliberative Democracy on Trial” (2001), and “Altering Cultures in Congress: From Truthful Play to Energy Performs” (2018).  The views expressed are solely his personal.