The expungement paradox is alive and well 

On June 22, two resolutions were introduced in the House to expunge from the official record the two impeachments of President Donald Trump in the last Congress, “as if the Articles had never passed the full House of Representatives.” 

While “expunge” sounds like an alien word just airdropped into Congress’s parliamentary lexicon, it is not. The term appears in Congress’s history and precedents dating back at least two centuries. It just isn’t invoked all that frequently. 

The most common use of the term is tied to a member’s unauthorized or inappropriate remarks which, by a privileged motion, are taken down and, if adopted, are stricken or expunged from the Congressional Record by a vote of the chamber involved. This action is usually taken on the day of the offense or shortly thereafter.

However, there are rare instances in which one house or the other attempts to reach back to nullify actions taken or words spoken in a previous Congress. This is not the same as amending a law enacted by a previous Congress. This is an action in which an effort is made by one house or the other to rewrite history with the stroke of an expunging pen or the swipe of an erasure.

The closest we can come to the currently proposed presidential impeachment nullification is a successful attempt back in 1834 to expunge from the Senate Journal the censure of President Andrew Jackson for withdrawing funds from the national bank without his Treasury Secretary first notifying  Congress. The expungement took place three years after his censure by a previous Congress.

Drawing on the official history of the Senate, here is how that episode unfolded. In 1832, President Andrew Jackson vetoed a bill to recharter the Bank of the United States. His veto became a major issue in his 1832 reelection campaign in which he decisively defeated Sen. Henry Clay. Following the election, Jackson ordered his Treasury secretary to withdraw federal deposits from the bank and redistribute them to state banks. That ignited a political firestorm. The national bank’s charter gave the secretary of the Treasury authority to move federal deposits out of the bank, but only after reporting such intended actions to Congress.

When Treasury Secretary William Duane refused to follow Jackson’s order to move the deposits, the president fired him and made a recess appointment to replace him. When the new Congress convened in 1833, anti-administration forces held an eight-seat advantage in the Senate, and Clay led the way in challenging Jackson’s actions on the bank. Jackson read a message to his Cabinet explaining his decision on the bank but refused to share it with Congress. Clay subsequently introduced a resolution requesting a copy of the message and another condemning the firing of Duane as exercising a power not granted to the president by the Constitution and laws.  

Following a ten-week debate, the Senate in 1834, by a vote of 26 to 20, adopted a revised version of the latter resolution charging the president with “assuming upon himself authority and power not conferred by the Constitution and laws, but in derogation of both” — as the Senate history describes it, an action “effectively censuring the president.” Jackson reacted with a strong message of protest that the Senate refused to print in its Journal.

For three years, Sen. Thomas Hart Benton (D-Mo.) campaigned to expunge the censure resolution from the Journal. Finally, in January 1837, Senate Democrats, having regained a majority in the Senate, voted to remove the stain  from the record. By this time, the president was old and sick, just weeks from retirement. With much pomp and ceremony the 1834 Journal was brought into the Senate chamber and placed on the Clerk’s desk. The Clerk took his pen and drew a back line around the censure text, “X-ed” it out, and wrote, “Expunged by order of the Senate.” A messenger was dispatched to deliver the expunging pen to the ailing Jackson.

Here is the expungement paradox. On the one hand, there is a close precedent involving the president and Congress in which action was taken by one house against a president in a previous Congress. That house voted to expunge a previous action from the official record, and that order was actually executed by the Clerk. On the other hand, that precedent is not settled parliamentary law, never having been challenged as to its force and effect. It is sci-fi fantasy to think you can turn back the clock, revisit a past event, and actually change the course of history. In congressional parlance such a resolution is called a “sense of Congress” expression — a rhetorical device that reflects majority sentiment at the time it is adopted.

Don Wolfensberger is former Republican staff director of the House Rules Committee from 1991-97, culminating as majority chief-of-staff in 1995.  He is author of ‘Congress and the People: Deliberative Democracy on Trial” (2001), and “Changing Cultures in Congress: From Fair Play to Power Plays” (2018).  The views expressed are solely his own.