Officer Or Not, It’s A Real Issue

When Colorado state district court judge Sarah Wallace held that, while Trump engaged in insurrection, he was not an “officer” under Section 3 of the Fourteenth Amendment,  MSNBC legal analysis waived it off as some goofy nonsense. “Of course he’s an officer,” they said, as if it was so obvious that it was unworthy of any serious thought. But is it so obvious? Well, sure it is, provided you know nothing about the issue and can’t be bothered to learn.

The question first came on my radar when raised in connection to the Foreign Emoluments Clause that was definitely going to nail Trump to the wall as he was stuffing his pockets with Saudi cash. But Josh Blackman and Seth Barrett Tillman made a fair historical and textual case that elected officials were not “officers,” and that included the president and vice president. It was later written up as a law review article after January 6th explaining the rationale.

This article will proceed in six parts. Part I will contend that the phrases “officer of the United States” and “office . . . under the United States” in Section 3 refer to different categories of positions. Part II will analyze the phrase “officer of the United States,” which is used in the Constitution of 1788 and in Section 3 of the Fourteenth Amendment, which was ratified in 1868. Part III will show that the meaning of the phrase “officer of the United States” did not drift from 1788 through 1868. There is substantial evidence from both eras that the President was not considered an “officer of the United States.” Part IV will recount longstanding Executive Branch opinions, which affirmed that elected officials like the President are not “officers of the United States.” Part V will respond to recent academic arguments suggesting that the President is an “officer of the United States” for purposes of Section 3.

The Colorado decision, without citing to the article or Josh and Seth’s previous writings, reached the same conclusion.

Here, after considering the arguments on both sides, the Court is persuaded that “officers of the United States” did not include the President of the United States. While the Court agrees that there are persuasive arguments on both sides, the Court holds that the absence of the President from the list of positions to which the Amendment applies combined with the fact that Section Three specifies that the disqualifying oath is one to “support” the Constitution whereas the Presidential oath is to “preserve, protect and defend” the Constitution, it appears to the Court that for whatever reason the drafters of Section Three did not intend to include a person who had only taken the Presidential Oath.

What few seem to give much considering to is that Section 3 includes an express list of those to whom it applies, in descending order, ultimately ending in a catchall.

Section 3 Disqualification from Holding Office

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Note that it expressly provides that it applies to a “Senator or Representative,” and then goes downhill to electors, a much lesser category of elected official, and from there concludes “any office, civil or military.” What it does not say is president and vice president, and this is particularly notable as it doesn’t include the presidency before senator, as the president is certainly a superior position. So what should be made of this glaring omission?

To be clear, part of the Court’s decision is its reluctance to embrace an interpretation which would disqualify a presidential candidate without a clear, unmistakable indication that such is the intent of Section Three. As Attorney General Stanbery again noted when construing the Reconstruction Acts, “those who are expressly brought within its operation cannot be saved from its operation. Where, from the generality of terms of description, or for any other reason, a reasonable doubt arises, that doubt is to be resolved against the operation of the law and in favor of the voter.” The Reconstruction Acts, 12 U.S. Op. Att’y Gen. 141, 160 (1867) (emphasis added). Here, the record demonstrates an appreciable amount of tension between the competing interpretations, and a lack of definitive guidance in the text or historical sources.

In other words, Judge Wallace, in the exercise of judicial humility, did not so much decide that the presidency was beyond the reach of Section 3 as she decided that it was not her place, in the absence of an “unmistakable indication” that the section intended to disqualify the presidency to resolve the question such that a candidate for president should be disqualified. In the face of “competing interpretations, and a lack of definitive guidance,” she was applying a version of the Rule of Lenity such that Trump would not be disqualified.

This isn’t to say whose interpretation is right or wrong, as trying to divine the secret meaning of words used and omitted in history is generally a fraught proposition. It would be awfully nice of Congress managed to express its intent in such a way that future generations would know definitively what they meant, but it’s too late to go back and give either our founding fathers or the Reconstruction Congress a spanking for its rhetorical failing. But the point is that this is a legitimate question and Judge Wallace was right both to consider it and to show humility about tossing Trump off the ballot without a clear and definitive showing that Section 3 applied to the presidency as well.

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