Can Congress Censure Jimmy Carter? Gail Heriot

For the past several weeks, I have been receiving e-mail solicitations from a conservative activist group entitled “Move America Forward” urging me to contribute money to a television campaign urging Congress to censure Jimmy Carter.  So far, I have declined.  I am not a Carter sympathizer.  His knee-jerk anti-Americanism and his support for the most demented tin-pot dictators have been embarrassing for many Americans, both liberal and conservative.  But I see little benefit to drawing attention to the matter.  Carter is our crazy aunt in the political attic.  We just have to live with him.

Evidently, Move America Forward found enough folks with extra cash on their hands to make the television ads without my money.  The “Censure Carter” ads started airing recently on CNN and Headline News.  And their airing raises an interesting question:  Does Congress have the power to censure Jimmy Carter?  Or would such an act constitute an unconstitutional “Bill of Attainder.”

A few years back, this issue was briefly debated as part of the Clinton impeachment hullabaloo.  Some members of Congress proposed as a compromise that Clinton be censured instead.  Others argued that the sole method by which a sitting President can be disciplined by Congress was through the impeachment power. 

The argument runs this way:  Congress undoubtedly has the power to censure its own members though Article I, Section 5, which allows each house to “punish its Members for disorderly Behavior.”  But nothing in the text suggests it may censure a sitting President, an officer of the United States, or a private citizen (Carter).  Indeed, the prohibition on bills of attainder–legislative declarations that single out a individual for punishment without the benefit of the judicial process–arguably makes such censures unconstitutional. 

The question, of course, is whether a censure constitutes punishment.  My uninformed inclination is that it does.  That’s why some people think it’s worth doing.  Should Congress be permitted to censure criminal defendants before trial on the ground that the censure does not constitute a punishment?  That doesn’t sound right to me.  If Congress can’t do that, it’s not clear to me how it can censure Carter.