The House Does Not Have to Allow Agency Counsel to Attend Depositions

In Lawfare I have a piece explaining why the House has the power to enforce subpoenas for depositions against executive officials and is not required to allow agency counsel to attend.

While the investigations prompting these subpoenas are controversial, the legal issue in the lawsuits is unrelated to the merits of the committee’s inquiries. In the case of all three subpoenas, the Justice Department directed the witnesses not to appear because, under the terms of the House rules governing deposition testimony, only the personal counsel for a witness is allowed to attend. The Justice Department maintains that it is constitutionally entitled to have agency counsel in attendance, which is prohibited by the House rules. The committee offered to allow agency counsel to be present in an adjoining room, where the witness and his personal counsel could consult them if need be, but the department rejected this accommodation.

While this may appear on the surface to be a modest procedural dispute, it has broader ramifications. The Justice Department’s claim is that agency counsel must be in the room, not to protect the rights of witnesses, but to guard the president’s purported authority to control the dissemination of all executive branch information. It is thus part of a larger and increasingly aggressive executive branch doctrine, which threatens to make Congress virtually impotent to obtain the information it needs for legislative and other purposes. (Law professor and Office of Legal Counsel (OLC) veteran Jonathan Shaub thoroughly detailed this doctrine in a 2020 law review article.) Moreover, as I wrote in 2019, the Justice Department’s position on congressional depositions is “wholly without legal support and in considerable tension with federal whistleblower laws.”

Trump’s Speech or Debate Argument: The Improper Application of a Non-Existent Immunity

In the Supreme Court argument on Donald Trump’s claim of absolute presidential immunity from criminal liability for “official acts,” Trump’s counsel, John Sauer, relied heavily on the Court’s Speech or Debate jurisprudence. See Transcript at 6-8, 31, 34, 36 & 46. Sauer did not go so far as to claim the president was literally entitled to protection under the Speech or Debate Clause, but he contended the issues addressed in the Speech or Debate Clause were “very analogous” to those presented by the criminal prosecution of a (former) president, Tr. at 34, and he argued for the creation of a parallel immunity for the president. Tr. at 36. For the reasons explained below, this argument should be rejected and, even if it were accepted, provides little if any protection for Sauer’s client in this case. Continue reading “Trump’s Speech or Debate Argument: The Improper Application of a Non-Existent Immunity”

The Blount Case and Congressional Precedent

         Today I want to return to a subject mentioned in a prior post relating to the 1799 impeachment trial of former Senator William Blount for acts committed prior to his expulsion by the Senate. Blount’s offenses, though not directly connected to his service in the Senate, were serious. Blount concocted a scheme to get himself out of financial difficulties by starting a war in which Indians and frontiersmen would attack Spanish Florida and Louisiana for the purpose of transferring those territories to Great Britain. A little light treason, as they might say on Arrested Development.

         Nonetheless, Blount’s impeachment was dismissed after the Senate, by a relatively close vote of 14-11, decided that it “ought not to hold jurisdiction of the said impeachment.” The Senate’s deliberations were secret and its order of dismissal did not specify why it had reached this decision. However, the conventional view or interpretation (as I will refer to it herein) is that the Senate was persuaded by Blount’s defense that senators are not “civil officers of the United States” and therefore not subject to impeachment.

         This conventional view has been challenged in modern times, most prominently by Professor Buckner Melton, a leading scholar of the Blount case. Professor Melton argues that because there were three different jurisdictional arguments made by Blount’s defense, it cannot be assumed that the Senate acted because of the “officer of the United States” issue:

Given all the possibilities the arguments had raised, the silence of the motion to dismiss as to the specific jurisdictional reasons for the dismissal is crucial. Given that silence, the dismissal cannot be taken clearly to mean that Senators aren’t civil officers or that they aren’t subject to impeachment. It may mean that; it may not. We simply don’t know.

Buckner F. Melton, Jr., Let Me Be Blunt: In Blount, the Senate Never Said that Senators Aren’t Impeachable, 33 Quinnipiac L. Rev. 33, 38 (2014). He argues that “nowhere in the Blount proceedings did the Senate establish any rule or precedent that Senators cannot be impeached.” Id. at 36.

         At the outset we should distinguish among three potential reasons why the decision in the Blount case might be important. The first is that as a founding era decision of the Senate, it could shed direct light on the original meaning of the Constitution. See, e.g., Marsh v. Chambers, 463 U.S. 783 (1983) (upholding legislative prayer as consistent with the First Amendment in large part based on congressional practice dating  back to the First Congress); id. at 790 (“In this context, historical evidence sheds light not only on what the draftsmen intended the Establishment Clause to mean, but also on how they thought that Clause applied to the practice authorized by the First Congress—their actions reveal their intent.”). For this purpose the weight given to the Blount decision might depend not only on the closeness of the vote, but also on who (i.e., framers and/or ratifiers) voted each way.

         A second and distinct reason for the Blount case’s potential significance is that signified by the conventional view, namely that the case constitutes an authoritative congressional precedent for the proposition that senators (and by extension members of the House) are not impeachable “civil officers of the United States.” Such precedents are recognized both by the courts and Congress, though it is fair to say that the courts have been ambivalent about the weight to give them. See, e.g., Arizona State Legislature v. Arizona Independent Redistricting Comm’n, 576 U.S. 787, 817-19 (2015) (citing favorable congressional precedent while suggesting that a contrary, but divided, precedent should not be relied upon due to likely political motives underlying it); id. at 824-25, 837-39 (Roberts, C.J., dissenting) (accusing majority of ignoring the controlling congressional precedent); Powell v. McCormack, 395 U.S. 486, 546-47 & n.85 (1969) (casting doubt on the value of congressional precedent, apart from its utility in illuminating the intent of the framers). On the other hand, Congress, the most important constitutional actor with regard to impeachment, tends to take its own precedents rather seriously. And as discussed further below, the Blount case (and the interpretation which followed it) should be understood as a particularly significant type of congressional precedent, one which satisfies the criteria for “constitutional liquidation” (a term which is not as ominous as it sounds).

         The third reason why the Blount case may be considered important, and the one which has given the case some attention in recent months, relates to the interpretation of section 3 of the 14th amendment. As we have discussed previously, the Blount case helps to explain why the framers of section 3 thought it necessary, or at least prudent, to separately enumerate senators and representatives, rather than assuming they would be covered by the general categories of “officer of the United States” and “office . . . under the United States.” It should be noted that the Blount case’s relevance here does not necessarily depend on its precedential status; what matters for the section 3 issue is what the framers of the 14thamendment thought the Blount case stood for, not whether their view was correct. Even those who question the Blount case’s precedential status, such as Professor Lederman, acknowledge that there was “ongoing debate and uncertainty” at the time of the 14th amendment’s framing about whether members of Congress were officers of the United States, which could explain the decision to separately enumerate members out of an abundance of caution.

         Our subject today, however, is only the second of these three reasons—the precedential status and effect of the Blount case apart from any bearing it might have on original meaning. I will endeavor to show, contra Professors Melton, Lederman and others, that the conventional view of the Blount case is in fact the correct one.      Continue reading “The Blount Case and Congressional Precedent”

Disqualified President’s Day: Navigating the Enforcement of Section 3 in a “Dangerously Unclear” Legal Framework

So for present purposes let’s assume that the Supreme Court allows Donald Trump to remain on the ballot but says nothing to undercut the possibility that he could be prevented from assuming the presidency under section 3 of the 14th amendment. Do other mechanisms exist to stop Trump from taking office on the ground that he is an insurrectionist disqualified by section 3?

All parties in Trump v. Anderson agree that section 5 of the 14th amendment, which provides “Congress shall have the power to enforce, by appropriate legislation, the provisions of [the 14th amendment],” allows Congress to establish statutory methods for the enforcement of section 3. Trump asserts that such federal legislation is the only way the judiciary may enforce section 3. See Trump Brief at 18. Furthermore, Trump maintains (and to my knowledge no one has disputed) that the only such legislation currently in force is the Insurrection Act, 18 U.S.C. § 2383. Accordingly, Trump’s position is that Congress has effectively left “criminal prosecution under 18 U.S.C. § 2383 as the sole means of removing insurrectionist office-holders.” Trump Reply Brief at 20.

Continue reading “Disqualified President’s Day: Navigating the Enforcement of Section 3 in a “Dangerously Unclear” Legal Framework”

What’s Next for Section 3?

There is a consensus, based on last week’s oral argument in Trump v. Anderson, that the U.S. Supreme Court will reverse the Colorado Supreme Court’s ruling that Donald Trump must be removed from that state’s primary ballot because he engaged in insurrection within the meaning of section 3 of the 14th amendment. The question now is on what basis the Court will rule and whether its ruling will leave it up to Congress to decide whether Trump is disqualified under section 3.

To understand the Court’s options, it is helpful to consider the distinction drawn by Professor Derek Muller here between treating this case as primarily presenting a substantive question of constitutional law under section 3 or as primarily presenting a question of election law regarding the scope of state power to adjudicate the qualifications of presidential candidates. In Muller’s view it should properly be analyzed as the latter.

I agree. It seems to me that the question of substantive enforcement is not squarely presented by this case. As noted in my last post, no one argues that states can disqualify a sitting president or, for that matter, any other federal official while in office. Perhaps a state could challenge in court the official acts of an alleged federal insurrectionist, but I suspect not and, in any event, that is not what is involved in this case.

It follows that the questions asked at oral argument regarding the automatic disqualification of a sitting president were largely beside the point. For example, Justice Gorsuch (I think) had a line of questions about whether Trump ceased to be the lawful president on January 7, 2021 and whether his actions were legally ineffective from that point on. Colorado’s counsel suggested that the answer would depend on the operation of the de facto officer doctrine, which I suspect was not comforting to the Court. A more comforting (and I think plausible) answer would have been that an insurrectionist in federal office does not automatically lose the powers of that office and can only be removed in accordance with federal law, i.e., by impeachment (or possibly by mechanisms established by law pursuant to section 5 of the 14th amendment). That answer, moreover, should in no way compromise Colorado’s position, which is founded on its election powers, not on powers granted by section 3.

For the same reason, though, even if a sitting president were automatically disqualified by section 3, that would not help Colorado. Colorado has no power under section 3 to decide if a federal official is an insurrectionist. Its determination that Trump is an insurrectionist, even if valid and binding for purposes of keeping him off Colorado’s ballot, would in no way prevent him from assuming or exercising the powers of the presidency. Whatever mechanism(s) may or may not exist to prevent Trump from holding the presidency or exercising the powers thereof, they do not turn on the factual findings of a single state judge or the legal conclusions of a single state supreme court.

The real question is what powers states have, whether pursuant to the Presidential Electors Clause of Article II or otherwise, to impose or adjudicate qualifications for presidential candidates. To take a simple example, suppose a state passed a law providing that no candidate could appear on the general or primary election ballot unless at least 40 years of age (or, alternatively, that its presidential electors are prohibited from voting for any candidate who is under 40). Would such a law be unconstitutional because it imposes a qualification beyond that specified by the Constitution?

Professor Muller says yes, stating in his amicus brief (at page 19) that “[s]tates may not add qualifications to presidential candidates.” He cites a footnote in the Supreme Court’s recent decision regarding the authority of states to bind their presidential electors to vote for the winner of the state’s popular election. See Chiafalo v. Washington, 591 U.S. ___, 140 S.Ct. 2316, 2324 n. 4 (2020). The footnote says “if a State adopts a condition on its appointments that effectively imposes new requirements on presidential candidates, the condition may conflict with the Presidential Qualifications Clause.” Id. (emphasis added).

I read that as leaving the question open (i.e., that the Presidential Qualifications Clause may or may not prohibit states from imposing new requirements), but Muller knows more about this that I do. Furthermore, both the justices and parties in Trump v. Anderson seemed to be operating under the assumption that states lack the power to add qualifications to presidential candidates. Thus, the point seems to be effectively conceded for purposes of this case, even if I (and others, including Professor Akhil Amar) harbor doubts.

That being the case, it should be relatively straightforward for the Court to write an opinion that leaves Trump on the ballot without addressing whether he is ultimately qualified to hold the presidency under section 3. As Trump’s counsel stressed during oral argument, section 3 only provides that a disqualified insurrectionist may not “hold any office, civil or military, under the United States.” It does not prevent anyone from running for office. Moreover, Congress is expressly empowered to remove the disability imposed by section3. Therefore, the Court may simply hold that removing Trump from the ballot now, when any disqualification imposed by section 3 could be removed by Congress before inauguration day in 2025, amounts to imposing an additional qualification in violation of the Presidential Qualifications Clause.

To be sure, it would be equally plausible for the Court to hold that states are free to remove from the presidential ballot candidates they (reasonably) believe to be disqualified under section 3 and that the burden is on the candidates to get a waiver from Congress if they want to be reinstated. However, as suggested in my last post and confirmed by the oral argument, the Court really, really does not want to reach that result for a bunch of institutional and practical reasons. And if the Court can reach the result it wants without straining logic or existing law, it is a pretty good bet that is what it will do.

If that happens the Court will have no need to decide whether Trump is actually disqualified under section 3. It may or may not address or comment on whether there are other mechanisms by which Trump’s eligibility might be adjudicated prior to his assuming office. In my next post I will consider what those might be.

Some final pre-game thoughts on Trump v. Anderson

The legal drama of 2024 continues, as the D.C. Circuit held yesterday that former president Trump is not entitled to assert immunity in the federal prosecution for alleged crimes committed in connection with his efforts to contest the results of the 2020 election, including the January 6, 2021 violent breach of the U.S. Capitol. The federal criminal case involving January 6 is not to be confused with the Georgia criminal case related to January 6, or the federal civil case against Trump for January 6, or the federal criminal case against Trump that does not involve January 6, or the New York criminal case against Trump that does not involve January 6, or other New York civil cases against him, well, you get the idea. The former president has his share of legal troubles.

None of these, however, is this week’s headline event. That honor belongs to Trump v. Anderson, which will be argued tomorrow, February 8, before the Supreme Court. As I am sure you know, the Court will be hearing Trump’s appeal of the Colorado Supreme Court’s decision that he may not appear on that state’s Republican primary ballot because he is disqualified from holding the presidency, under section 3 of the 14th amendment, by virtue of his having “engaged in insurrection.”

Trump v. Anderson is a very complicated case, involving a lot of difficult and novel issues. There are several paths the Court could choose to go down, and on each of those paths are one or more forks in the road that branch off in different directions. This makes it very difficult to predict how the Court will decide the case, although most observers, myself included, think it is most likely it will not affirm the decision to remove Trump from the ballot.

That prediction rests more on institutional incentives than legal analysis, though. The Court, particularly Chief Justice Roberts, will not want to be seen as depriving voters of the opportunity to support the candidate of their choice. At the same time, the Court (at least most of the justices) will not want to condone Trump’s behavior and will probably want to avoid taking a position, if possible, on whether his conduct amounted to “engaging in insurrection.” This implies a compromise decision where the Court takes one of many “off-ramps” that allow it to avoid the merits of the insurrection issue, while allowing Trump to remain on the ballot.

As far as it goes, this would be a “pro-Trump” result. But the Court can avoid the appearance of political bias in various ways. One is to act unanimously, or close to it, which means attracting support from its three Democratic appointees. A second (related to the first) is to make clear in its decision, as did the D.C. Circuit in its immunity opinion, that Trump’s conduct (excuse me, Trump’s “alleged” conduct) in connection with the 2020 election and January 6 went far beyond what was lawful or acceptable. A third (also related to the first) would be to leave open the question whether Trump will ultimately be qualified to hold the presidency under section 3 and possibly to lay out one or more mechanisms by which that issue could be resolved in the future. That would open a whole other can of worms, which we will have to leave to a future post.

Finally, Trump will undoubtedly be asking the Court to review the D.C. Circuit’s immunity decision (under the D.C. Circuit’s order, he has only until February 12 to request Supreme Court review if he wishes an automatic stay of the mandate). While the criminal prosecution and the section 3 disqualification case are legally distinct and unrelated, a speedy (and hopefully unanimous) rejection of Trump’s claim of immunity from criminal prosecution would go a long way toward protecting the Court from claims of political favoritism.

While these speculations are based on the political and practical realities, they do not exist in a vacuum separate from legal analysis. Affirming the D.C. Circuit’s decision on immunity (or simply denying Trump’s petition for certiorari) would be legally correct and it would be difficult to justify any other result. In contrast, affirming the Colorado Supreme Court’s decision would be much more problematic from the standpoint of existing legal doctrine.

The legal complexities of Trump v. Anderson are laid out in a series of lengthy posts by Professor Marty Lederman at Balkinization (see here for the first of many). I agree with many of the points Lederman makes, while others, such as on mootness and statutory jurisdiction, sound plausible but I have not thought much about. There is one point in particular that I want to highlight, one that I have not seen anywhere else—except on my twitter (or whatever we are calling it now) feed.

I am not sure if this case has anything to do with whether section 3 is “self-executing.” Whatever power Colorado has here stems from its authority to determine the manner of appointment of presidential electors, not enforcement of section 3.

— Mike Stern (@mls1776) December 25, 2023

As I noted there and in various other tweets, it has generally been accepted that one key issue in Colorado and other states where Trump’s ballot access has been challenged is whether section 3 is “self-executing.” There is some confusion about exactly what “self-executing” means, as Trump claims he is not disputing that section 3 is self-executing, but merely that it can only be enforced pursuant to specific congressional legislation. See Trump Reply Br. at 19-20. This strikes me as a distinction without a difference. In any event, the bottom line claim is the same- section 3 can only be enforced to the extent that Congress so provides through legislation under section 5 of the 14th amendment.

But, as Professor Lederman explains here, Colorado is not enforcing section 3, which is something states clearly cannot do with respect to federal officials, most obviously including the president. No one would argue, I hope, that a state could declare the sitting president, whether it were Trump, Biden or anyone else, to be disqualified under section 3 (or any other constitutional provision) and therefore proceed to treat the president’s actions as null and void. Instead, what Colorado is doing is applying its own election laws, which (according to the Colorado Supreme Court) require it to remove from the ballot candidates who are ineligible for office for any reason, including violation of section 3. Now it may (or may not) be that Colorado is constitutionally forbidden from exercising this power with respect to presidential candidates who are in fact eligible to hold office. In that case Trump’s alleged eligibility under section 3 would be a defense to Colorado’s action, but that would not make Colorado’s action an enforcement or implementation of section 3.

One more observation about the “self-execution” issue. Trump’s position is that the only method currently authorized by Congress for enforcing section 3 is the Insurrection Act, a criminal statute currently codified at 18 U.S.C. § 2383. This strikes me as being in some tension with his position that he is absolutely immune from criminal prosecution for his actions relating to the 2020 election and January 6. Perhaps someone will ask his counsel about that tomorrow.

Finally, I will note that I do have one strong, although perhaps not too significant for present purposes, disagreement with Professor Lederman. He contends that members of Congress are “officers of the United States” and hold “offices under the United States” at least for some constitutional purposes. This is an arguable (though imho mistaken) proposition, and it is certainly true that there has been controversy about this throughout our history, including at the time of the framing and ratification of the 14th amendment. However, Lederman goes too far when he suggests that the Blount case was not generally understood to stand for the proposition that members of Congress are not “civil officers of the United States” and therefore not subject to impeachment. As I pointed out to him on twitter (or whatever), this is just plain wrong, as all the early treatise writers (Tucker, Rawle, Story) so understood this to be the rationale of the Blount case. As do more modern writers, such as Professor David Currie and Lederman’s colleague at Georgetown Law School, Professor Josh Chafetz. See Josh Chafetz, Congress’s Constitution 149 (2017) (“The Senate decided that members of Congress were no ‘civil Officers’ and therefore not impeachable; instead, they expelled [Blount] by a vote of twenty-five to one.”).

Further exploration of that topic, however, will have to wait for another day.

The Significance of the Election and Appointment Issue (and Professor Tillman’s Request to Participate in Oral Argument)

In my last post I explained why the terms “election” and “appointment,” as used in the original Constitution, should not be read as mutually exclusive. Today I will explain why that matters for Trump v. Anderson, the Colorado disqualification case currently pending before the Supreme Court.

But first I must note a surprising, and somewhat related, development. Professor Tillman has asked the Court for leave to participate in oral argument. I guess this was considered reasonable because the Colorado Supreme Court granted Tillman leave, through his counsel (Professor Blackman), to participate in its oral argument (though ultimately Blackman was unable to do). But still.

In any event, Tillman’s reasons for wanting to participate in oral argument relate in part to the subject of today’s post, as will be explained below.

The primary reason it matters whether elected officials are also “appointed” within the meaning of the Constitution relates to the question whether the president is an “officer of the United States.” The position taken by former president Trump, as well as by Professor Tillman and other amici, is that the term “officer of the United States” is defined (effectively, though not expressly) by Article II to include only those officers who are appointed pursuant to the Appointments Clause. Because section 3 of the 14th amendment applies only to those who took an oath as “officers of the United States,” they argue, it does not apply to taking an oath as president because the president is not appointed pursuant to the Appointments Clause.

The Appointments Clause provides:

[The president] shall nominate, and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law; but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of the Departments.

U.S. const., art. II, § 2, cl. 2 (emphasis added).

On its face the italicized phrase “whose Appointments are not herein otherwise provided for” would seem to show that there is a category of “Officers of the United States” who are not appointed in accordance with the Appointments Clause because their appointments are “herein otherwise provided for.” Or at least that the Appointments Clause is not attempting to define the term “officer of the United States” in, as the Conkling committee put it, the “enlarged and general sense of the Constitution.” In other words, the clause either affirmatively demonstrates that there are “officers of the United States” who are not appointed in accordance with its provisions or indicates that nothing in the clause itself negates the possibility of such officers.

Tillman and Blackman do not accept this reading. If I understand them correctly (and I am not sure I do, despite having read their passages on this several times), they contend that the positions “not herein otherwise provided for” are those offices expressly mentioned earlier in the same sentence, namely ambassadors, other public ministers and consuls, and judges of the Supreme Court. See Seth Barrett Tillman & Josh Blackman, Offices and Officers of the Constitution, Part III: The Appointments, Impeachments, Commissions, and Oath or Affirmation Clauses, 62 S. Tex. L. Rev. 349, 383-87,442-48 (2023). Put differently, they apparently believe that the framers felt the need– for an unknown reason—to explain what they meant by the word “other” in “all other Officers of the United States.” It is as if I said “I am inviting Fred, George, and some other people to my party, and by that I mean people who are not Fred and George but are in fact additional to Fred and George.” This might be a perfectly normal thing to do if you are writing a Monty Python skit, but it makes no sense as a matter of constitutional drafting.

Roger Parloff puts it somewhat more politely when he says that Tillman and Blackman adopt a reading of the words in question that is “exactly the opposite of what they appear to say.” And James Heilpern and Michael Worley are more polite still when they point out (pp. 27-31) that Tillman and Blackman offer no reason for rejecting the “most natural reading” of the Appointments Clause in favor of an unnaturally narrow construction of the phrase “whose Appointments are not herein otherwise provided for.”

To bolster their case, Tillman and Blackman point to the word “appointments” as evidence that the phrase in question cannot be referring to elected officials such as the president. That is why it is important to understand that the word “appointment” at the time of the framing was a general term that could embrace any process, including election, for filling an office. As Heilpern and Worley put it (p. 30), “[o]nce one understands this linguistic convention, we think the meaning of ‘whose Appointments are not herein otherwise provided for’ is clear and see no reason that it would not include the President.”

In their merits brief, the Colorado respondents argued that Trump’s interpretation of “officer of the United States” fails to account for the “not herein otherwise provided for” language of the Appointments Clause. According to Tillman, Trump failed to address this issue in his merits brief and therefore Tillman should be given oral argument time to offer his explanation of the language. This seems like an odd basis for a request for amicus oral argument, but I support it on the ground of its entertainment value alone. But I should also be given 5 minutes to provide rebuttal in the form of a Monty Python skit.

Tillman also says he should be given oral argument time to explain “his personal correspondence with the late Justice Scalia touching on the issues now before this Court.” I can see the confused look on your face so let me explain.

You may recall that a long ago there was controversy over then-President Obama’s recess appointments, which the Supreme Court declared to be illegal in a 2014 case fondly remembered by readers of this blog. Justice Scalia’s concurrence in that case begins “[e]xcept where the Constitution or a valid federal law provides otherwise, all ‘Officers of the United States’ must be appointed by the President ‘by and with the Advice and Consent of the Senate.’” NLRB v. Noel Canning, 573 U.S. 513, 569 (2014) (Scalia, J., concurring) (emphasis added). Scalia’s reference to a “valid federal law” refers to the portion of the Appointments Clause which permits Congress to vest the appointment of inferior officers in the president alone, in the courts or in the heads of departments. His reference to “the Constitution . . . provid[ing] otherwise” likewise obviously refers to the “not herein otherwise provided for” language of the Appointments Clause and suggests that he agrees with Heilpern and Worley on the “most natural reading” of those words.

Professor Tillman, however, was not happy that Justice Scalia read the language of the Appointments Clause to mean what it obviously says, rather than what Tillman thinks it says. Tillman therefore (I am not making this up) wrote to Scalia to ask him to explain further what he meant by this language. See Seth Barrett Tillman & Josh Blackman, Offices and Officers of the Constitution, Part III: The Appointments, Impeachments, Commissions, and Oath or Affirmation Clauses, 62 S. Tex. L. Rev. 349, 445 (2023). Scalia sent a note in reply to Tillman (I am still not making this up) as follows:

         I meant exactly what I wrote. The manner by which the President and Vice President hold their offices is “provide[d] otherwise” by the Constitution. As is the manner by which the Speaker of the House and the President Pro Tempore of the Senate hold theirs.

Id. at 446.

Now I would be cautious about putting too much weight on this note. A reasonable inference is that Scalia thought all the officials he mentioned are officers of the United States, but it is hard to say how much, if any, consideration he gave to that subject. It is fair to conclude, however, that Scalia rejected the centerpiece of the Tillman/Blackman theory of “officer of the United States” because he did not believe such officers were limited to those appointed in accordance with the Appointments Clause. But this is merely to say that Scalia reads that clause to mean what it says and what his Noel Canning concurrence says that it means.

I am not sure how the Supreme Court will benefit from Tillman’s further elaboration on this “personal correspondence.” But it would be entertaining.

Election versus Appointment: The Case of Congressional Officers

There is an excellent article by James Heilpern and Michael Worley which discusses whether the president is an “officer of the United States” within the meaning of section 3 of the 14th amendment. It is worth reading the article and/or a shorter but also very good piece on Lawfare by Roger Parloff discussing the same issues. Today I just want to comment on one of those issues, which is whether the Constitution draws a sharp distinction between “election” and “appointment.”

The elaborate theory constructed by Professors Tillman and Blackman to explain why the president is not an “officer of the United States” and does not (at least under the original Constitution) hold an “office under the United States” is based in significant part on the premise that the president is “elected,” not “appointed.” In today’s parlance this is a familiar distinction, and I have not questioned it in my prior writings on this subject. However, my review of both the federal Constitution and early state constitutions has suggested that the distinction was far less clear cut than Tillman and Blackman seem to believe.

Heilpern and Worley argue that at the time of the framing “the terms appointment and election were truly interchangeable, at least to the extent that an election was one form of appointment.” (p. 25) [note: the way I would put it is that appointment was a broader term than election and that election was one form of appointment]. They lay out an impressive amount of evidence in support of this conclusion at pages 17-26 of their article. I have just a few things to add which tend to reinforce their conclusion.

My focus was mainly on congressional officers. Tillman and Blackman assert that congressional officers are appointed, not elected. At least they say this explicitly about what they call “non-apex” congressional officers such as the clerk of the House and secretary of the Senate. See Seth Barrett Tillman & Josh Blackman, Offices and Officers of the Constitution, Part I: An Introduction, 61 S. Tex. L. Rev. 309, 316-17 (2021). I think they also believe that “apex” officers (i.e., the speaker of the House and president pro tempore of the Senate) are also “appointed,” but to my knowledge they do not explicitly say this. If they do not believe this, that would be odd because the Constitution refers to the same process of selection for all congressional officers. See U.S. const., art. I, § 2, cl. 5 (“The House of Representatives shall chuse their Speaker and other Officers”); U.S. const., art. I, § 3, cl. 5 (“The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States.”).

In any event, the Constitution does not expressly say that congressional officers are either appointed or elected. Instead, as the above cited provisions indicate, it says that each house should “chuse” its officers. But to choose and to elect are (and were at the time of the framing) synonyms. See Samuel Johnson’s Dictionary (1773) (defining “to elect” as “to choose for any office or use; to take in preference to others”). Moreover, the Constitution uses them as such. For example, members of the House are “chosen every second Year by the People of the several States,” senators were “chosen by the Legislature” of their respective states, and the House shall “chuse by Ballot” a president when no candidate has a majority of electoral votes. Each of these clauses uses a variant of “choose” to describe the conduct of an election. Other constitutional clauses also illustrate this point. See U.S. const., art. I, § 3, cl. 3 (“No Person shall be a Senator who shall not have attained to the Age of thirty Years, and ben nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.”) (emphasis added); U.S. const., art. II, § 1, cl. 1 (The president “shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected as follows . . . .”) (emphasis added).

There are other reasons to believe that congressional officers are elected. As viewers of C-SPAN have become well aware during this Congress, the House conducts an “election” to decide who will be its speaker. Other congressional officers, such as the clerk and the sergeant-at-arms are likewise elected by a vote of the House. See Charles W. Johnson, John V. Sullivan & Thomas J. Wickham, Jr., House Practice: A Guide to the Rules, Precedents, and Procedures of the House 663-64 (2017) (distinguishing elected House officers, such as the clerk and sergeant-at-arms, from House officers who are appointed but not elected, such as the parliamentarian). Nor is this merely modern terminology, as the first House “proceeded to ballot” for a speaker and clerk, and “Mr. John Beckley was elected” as clerk. I Annals of Congress 100 (Apr. 1, 1789).

Furthermore, it would make little sense to say that congressional officers are not elected when they are chosen in the same manner as other elected officials, most notably senators who were originally chosen by a vote of the state legislature. If there is a reason why the vote of the state legislature to select a senator is an “election,” but the vote of the House or Senate to select officers is not, it escapes me.

Just because congressional officers are elected, however, does not mean it is incorrect to say that they are appointed. Tillman and Blackman conceive of election and appointment as mutually exclusive terms, but I agree with Heilpern and Worley that this is wrong. Presidential electors, for example, are appointed, but the manner of appointment is by an election. As Heilpern and Worley show, even the first presidential election involved states appointing their electors either by popular election or by election of the legislature. (pp. 19-20). Moreover, the Constitution refers to “the Time of chusing the Electors,” thus using the same language that it uses to describe other elections. See U.S. const., art. II, § 1, cl. 4. It was therefore not inconsistent at the time of the framing to refer to congressional officers as both elected and appointed. Indeed, the records of the first Congress reflect this. See I Annals of Congress 100 (referring to the House clerk as both elected and appointed); id. at 242 (same with regard to the House chaplain).

As Heilpern and Worley note (pp. 20-21), the early state constitutions also confirm that the term “appointment” could be used to describe the process of electing officers. Tillman and Blackman apparently believe that only those state officials chosen by direct vote of the people should be considered “elected,” while those chosen by state legislative bodies were “appointed.” See Seth Barrett Tillman & Josh Blackman, Offices and Officers of the Constitution, Part III: The Appointments, Impeachments, Commissions, and Oath or Affirmation Clauses, 62 S. Tex. L. Rev. 349, 422 (2023). But this terminology conflicts with the usage of state constitutions themselves, where offices filled by the ballot of the legislature could be described as elected, appointed, or both. See, e.g., Md. Const. of 1776, art. XXVIII, XXXII (referring to both election and appointment of the governor); Ga. Const. of 1777, art. XXIV (same); see also William C. Webster, Comparative Study of the State Constitutions of the American Revolution, 9 Annals of the Am. Academy of Pol. & Social Science 64, 80 (May 1897) (“In seven states [the chief executive] was elected by joint ballot of the two houses of the legislature; in Pennsylvania by the joint ballot of the assembly and executive council; in only four by the direct vote of the qualified electors of the state.”). Moreover, it should be noted again that if only direct popular “election” counts, then neither U.S. senators (in the original Constitution) nor the U.S. president/vice president should be considered “elected” either.

For these reasons the terms “appointment” and “election” were not mutually exclusive at the time the Constitution was framed and they should not be read as mutually exclusive as they were used in the Constitution. In my next post I will explain why this conclusion poses a significant problem for the Tillman/Blackman theory.

The One Where They Mix Up the Bayards

Note: Seth Barrett Tillman points out that the second Bayard was actually the son, not the grandson, of the original Bayard. (Bayard’s grandson was also a senator, just not the one in question). The post is corrected accordingly.

Not surprisingly, there have been a lot of amicus briefs filed in the Supreme Court case of Trump v. Anderson, where the former president is seeking review of the Colorado Supreme Court ruling that excluded him from that state’s ballot. For those who do not speak lawyer, “amicus” is short for “amicus curiae” or “friend of the court.” As we know, though, there are different types of friends. Some friends are there for you during difficult times, like when the rain starts to pour and you need an umbrella or when you have to make a history-altering judicial decision and need some wise counsel. Other friends are the type that come to your house drunk at 2 in the morning and throw up on your new sofa.

Very much in the first camp is Professor Derek Muller of Notre Dame Law School, a leading election law expert. Professor Muller has filed an amicus brief that does not take sides or tell the Court who should win. Nor does it claim false certainty or sugar coat the difficulties of the matters before the Court. Instead, the brief provides an important perspective that the Court may not get from the parties, explaining the election law background and identifying some key issues the Court will need to address. Muller also explains why the Court should be precise if it decides to kick the issue to Congress, noting the differences between congressional authority to enact legislation pursuant to section 5 of the 14th amendment, on the one hand, and possible congressional authority to refuse to count electoral votes for a disqualified candidate and/or to determine that a president elect has “failed to qualify” pursuant to the 20th amendment, on the other.

In a future post we may want to explore the issues raised by Professor Muller in some detail. Today, however, we are going to talk about a different kind of amicus brief, one which, unfortunately, is probably more common. This type of brief is not designed to provide the Court with new information or a unique perspective on the issues before it. To the extent it is designed to influence the Court at all, it is only to inform it who supports what outcome. The primary purpose of such briefs, whether submitted on behalf of political figures or interest groups, often appears to be a kind of social signaling to the public or particular constituencies about whose side the amicus is on.  It seems very unlikely, for example, that the “Children’s Rights Legal Scholars and Advocates” or “The League for Sportsmen, Law Enforcement and Defense” have anything substantive to contribute to the issues before the Court in Trump v. Anderson.

Which brings us to the amicus brief filed by “Former Attorneys General Edwin Meese III, Michael B. Mukasey and William P. Barr; Law Professors Steven Calabresi and Gary Lawson; Citizens United and Citizens United Foundation” (hereinafter “Amicus Br.”). What this collection of amici have in common is something of a mystery. According to the interest of amici section, “Citizens United and Citizens United Foundation are dedicated to restoring government to the people through a commitment to limited government, federalism, individual liberty, and free enterprise.” Amicus Br. at 2. Exactly what that has to do with the case before the Court is left to the imagination. One can only assume that the interest of these organizations, like that of the children’s and gun rights groups, is of the social signaling variety.

The three former attorneys general, the brief explains, are interested in the case because during their tenures of office “the Department of Justice steadfastly defended the rule of law with respect to the Fourteenth Amendment.” Id. Uhh, ok. Do they file amicus briefs in the Supreme Court whenever a case involves a part of the Constitution they “steadfastly defended” in office? My guess is that they just want the Court to know that they support allowing Trump to stay on the ballot, even though Barr, who served as attorney general under both Trump and George H. W. Bush, has publicly said that Trump is unfit for the presidency.

Finally, we have Professors Calabresi and Lawson, who, the brief notes, “are former Department of Justice officials as well as scholars of the original public meaning of the Constitution.” Id. Their scholarly works have been cited by members of the Court, the brief points out. Interestingly, however, the brief itself doesn’t cite any of their scholarly works, including Calabresi’s prior articles that directly contradict positions taken in the brief. I guess the professors do not have an interest in explaining to the Court why the scholarship of original public meaning scholars is a poor guide to the original public meaning of the Constitution.

A few months ago when we reviewed the changing positions of Professor Calabresi regarding whether the president is an “officer of the United States,” I noted that Calabresi had presumably not changed his prior view that the president holds an “office under the United States” for purposes of both the original Constitution and section 3 of the 14th amendment. Calabresi had previously defended vigorously the view that the presidency is an “office under the United States” and his September 16, 2023 blog post, in which he recanted his prior view that the president was not an “officer of the United States,” did not suggest that he had changed his view on the former issue. Furthermore, Calabresi reiterated in that blog post that Trump should have been impeached, convicted and disqualified for his conduct on January 6, 2021, thereby indicating that he still believed the presidency was an “office under the United States” within the meaning of the Disqualification Clause.

Calabresi’s blog post also indicated that the drafters of section 3 of the 14th amendment intended to cover the president as an “officer of the United States,” but inadvertently used a “legal term of art” with a meaning different than the “colloquial meaning” on which the drafters relied.

Now, however, Calabresi has joined an amicus brief that disavows his former positions on both those issues. The amicus brief contends that the drafters of section 3 deliberately omitted the presidency, rather than simply inadvertently using the wrong language. It also asserts that the phrase “office under the United States” in section 3 does not include the presidency because that phrase “had long been a term of art” which excluded positions, such as the presidency, which “constitute” the government of the United States, but are not “under” it. Moreover, because the drafters of section 3 were familiar with this term of art, the brief maintains, that “there is little doubt” that the usage of this term in 1866 was understood not to include the presidency. Amicus Br. at 11. In endorsing this argument, Calabresi is not only repudiating everything that he said in his 2008 debate with Seth Barrett Tillman (in which, you may recall, he said that the argument he now endorses was an “utterly implausible proposition”), he is out-Tillmanning Tillman because Tillman himself does not argue that the phrase “office under the United States” excludes the presidency as it is used in section 3.

For those keeping score at home, Calabresi has now disavowed (1) his own 1995 law review article in which he said that the president was an officer of the United States; (2) his 2008 debate with Tillman where he reiterated this position and also argued at length that the presidency was clearly an office under the United States within the meaning of the original Constitution; (3) his August 10, 2023 blog post where he declared that Trump was ineligible for the presidency under section 3; and (4) the above mentioned elements of his September 16, 2023 blog post (which otherwise recanted his prior blog post).

So what is the originalist evidence that supports Calabresi’s remarkable evolution? Well, see it all starts with a speech given “during the impeachment trial of U.S. Senator William Blount in 1799 by Senator Bayard, one of Blount’s defenders.” See Amicus Br. at 10.

Wait, you say, “I didn’t know that there was a Senator Bayard who defended Blount during his impeachment trial.” Sure, that’s because you are just a rando who reads blog posts and not a famous legal scholar who gets cited by the Supreme Court. Well, also because there was in fact no Senator Bayard in the Blount impeachment trial. There was (as you know from reading my last post) a Representative Bayard, but he was a House manager who was prosecuting, not defending, Blount.

Pro tip: if you are going to file an amicus brief with the Supreme Court and purport to give it the benefit of your great legal expertise, try not to garble basic facts about the historical record. Otherwise you will end up looking as foolish as a guy who says the name of the wrong woman during his wedding vows.

Now in fact there was a Senator Bayard (actually, there were a number of them, but only one that matters here) who is relevant to the argument the amicus brief is making, but he was not involved in the Blount trial. Senator Bayard, the son of the Bayard who served as a House manager during the Blount impeachment, was the leading opponent of a controversial oath requirement that the Senate sought to impose on its members during the Civil War. And it is the debate over that oath requirement that the amicus brief seeks to use to show that the president was not understood to be an officer of, or hold an office under, the United States. (Maybe this has something to do with why the amicus brief thought there was a Senator Bayard in the Blount trial; it is hard to say.).

The oath at issue stemmed from a statute that Congress passed in 1862 which required that federal officeholders swear not only to prospectively support and defend the Constitution, but that retrospectively they had not borne arms against the United States or engaged in other seditious activities. The Senate subsequently began to insist that its own members take this oath before being seated. This might seem to be a relatively trivial matter, but it was thought to implicate deep questions of constitutional principle and to raise squarely the issue of whether and on what conditions the southern states would be allowed to rejoin the union. After all, if senators were required to take the retrospective oath, then no one previously involved with the Confederacy would be able to represent a state that rejoined the union. The oath requirement therefore addressed the same type of issue that would eventually be settled by section 3 of the 14th amendment.

Senator Bayard opposed the retrospective oath requirement for a number of reasons, but one of them was that he contended that the statutory requirement did not apply to senators at all. The 1862 statute specified:

That hereafter every person elected or appointed to any office of honor or profit under the Government of the United States, either in the civil, military, or naval departments of the public service, excepting the President of the United States, shall, before entering upon the duties of such office, and before being entitled to any of the salary or other emoluments thereof, take and subscribe the following oath or affirmation . . . .

Cong. Globe, 38th Cong., 1st sess., appendix 32 (1864) (emphasis added).

Before explaining Senator Bayard’s reasoning, it should be noted that this statute itself provides some relevant information about how the Civil War Congress understood the phrase “office of honor or profit under the Government of the United States.” First, it indicates that such offices could be filled by either election or appointment. Second, it suggests that the presidency constitutes one such office since otherwise there would have been no need to exempt it. Third, it shows that Congress knew how to exclude the president from a legal requirement applying to “any office . . . under . . . the United States” when it wanted to. Each of these points tends to support the conclusion that section 3 applies to the presidency.

Senator Bayard, however, argued that United States senators (and representatives) did not hold offices covered by the statute for the simple reason that they did not hold offices at all. Id. at 36 (“[W]hat is the position of a Senator? My answer is, a station, a trust, not an office within the meaning of the Constitution.”). He contrasted these legislative positions with those of the president and vice president, who hold offices under the “plain and explicit” language of the Constitution. Id.

Senator Bayard buttressed his position by pointing to the Senate’s verdict in the Blount case, which he explained had found that a senator was not a civil officer of the United States and therefore in his view equally supported the conclusion that a senator (or representative) did not hold an office under the United States. Id. at 35. This resulted in retorts from his colleagues who pointed out that Bayard’s father had taken the opposite position in the Blount case.

Although this response would seem to be more like senatorial trash talking than a serious legal argument, another senator, like Bayard an opponent of the oath requirement, took it upon himself to show that the elder Bayard had been more consistent with his son’s views than the opposition allowed. That senator was Reverdy Johnson, whom we have previously discussed in connection with section 3. In the course of an address opposing the oath requirement, Senator Johnson quoted from Representative Bayard’s speech in the Blount trial. See Cong. Globe, 38th Cong., 1st sess. 329 (1864). You may recall the speech in question, in which Representative Bayard with evident embarrassment laid out the argument that a senator or representative might not hold an office under the United States even though he was an officer of the United States. The elder Bayard suggested in passing, as did Senator Johnson by quoting him, that the president likewise might not hold an office under the United States. It is Senator Johnson’s quoting of Representative Bayard’s speech that the amicus brief seizes upon (while omitting all of the background regarding the oath issue which we have just laid out) to show “there is little doubt that the phrase ‘officer *** under the United States’ was understood in 1866 not to include the office of President.” Amicus Br. at 11 (emphasis in original).

If this is the best argument you can come up with, it isn’t your day, week, month, or even your year. (O.k., I know I’m pushing it now). But seriously, Senator Johnson was one senator on the losing side of a debate about whether senators held offices under the United States. Even assuming Johnson thought his (losing) argument applied to the president as well, this view was not even shared by all the senators on his side, like Bayard, and it was obviously rejected by the senators in the overwhelming majority (the resolution to require the retrospective oath passed 28-11). And that is before we get to the fact that Senator Johnson himself later acknowledged that the president was covered by the language in section 3.

In short, the only reasonable inference from the oath debate is that it reinforces the conclusion that the president was understood to hold an office under the United States and, if the framers of section 3 had intended anything else, they would have exempted the presidency just as was done in connection with the 1862 oath statute. There is no plausible way that it can support the interpretation offered by these amici. They are not friends of the Court, at least not the kind that don’t throw up on your sofa.

Cool Story, Bro: The Historical Origins of the Office/Officer Controversy

In my last post I promised to explore the origins, such as they are, of the theory that the president is not an “officer of the United States” and/or does not hold an “office under the United States.” In the interim there has been a development, of sorts, in which Professors Tillman and Blackman have pointed to some newspaper articles in 1868 that argue the president is not an officer of the United States (albeit not in the context of section 3). I am name-checked in their piece, apparently because these articles supposedly falsify my prior statement that “’there is no record of anyone else, eminent thinker or otherwise, saying’ that the President does not hold an Office under the United States ‘in the Constitution’s first two centuries.’” However, at the end of this post I will explain why these 1868 articles do not help Tillman and Blackman at all. To the contrary, they are an excellent illustration of my point.

You may recall Benjamin Cassady’s claim that “[b]eginning at the Blount impeachment trial and continuing to present-day academic debates, some eminent thinkers have parsed the Constitution and its history for clues to support ingenious arguments that the two top executives are not officers as the Constitution uses that word.  . . .” A key issue in the 1799 impeachment trial of Senator Blount was whether a senator was a “civil officer of the United States” within the meaning of the Impeachment Clause, which provides that “[t]he President, Vice President and all civil Officers of the United States” are subject to impeachment.

The “eminent thinkers” identified by Cassady are Justice Joseph Story, Professor Brian Kalt, and Professor Tillman. One thing that these three have in common, apart from the eminence of their thinking, is that none were involved in the Blount trial. Story’s Commentaries on the Constitution, to which Cassady refers, was first published in 1833, more than three decades after Blount’s acquittal. But Story’s treatise contains speculation on what might have caused the Senate to decide Blount was not a “civil officer of the United States:”

The reasoning, by which it was sustained in the senate, does not appear, their deliberations having been private. But it was probably held that “civil officers of the United States” meant such, as derived their appointment from, and under the national government, and not those persons who, though members of the government, derived their appointment from the states, or the people of the states. In this view, the enumeration of the president and vice president, as impeachable officers, was indispensable; for they derive, or may derive, their office from a source paramount to the national government. And the clause of the constitution, now under consideration, does not even affect to consider them officers of the United States. It says, “the president, vice president, and all civil officers (not all other civil officers) shall be removed,” &c. The language of the clause, therefore, would rather lead to the conclusion, that they were enumerated, as contradistinguished from, rather than as included in the description of, civil officers of the United States.

2 Joseph Story, Commentaries on the Constitution: With a Preliminary Review of the Constitutional History of the Colonies and States Before the Adoption of the Constitution §791 at 259-60 (1833) (emphasis in original).

Note that Story is not addressing himself to, or expressing an opinion on, the question whether the president is a “civil officer of the United States” within the meaning of Article II or any other constitutional provision. Instead, he is sketching out an argument as to why the Senate might have concluded senators and representatives were not civil officers of the United States under the Impeachment Clause. To support that argument, he points to the fact that the president and vice president are expressly enumerated in that clause, which might have reflected the framers’ view that they would not otherwise be covered by the general “civil officers of the United States” language (or, alternatively, that there might have been an ambiguity about whether they were covered because they “may derive,” i.e., arguably could be said to derive, their office from a source paramount to the national government). If therefore the express listing of the president and vice president was considered necessary because they were not “civil officers of the United States” or, perhaps more precisely, they were not unambiguously “civil officers of the United States” as that expression is used in Article II, then it is less likely that the framers intended that senators and representatives be encompassed within the “catchall” category of “civil officers of the United States.”

It will be noted that the argument sketched out, though not necessarily endorsed, by Story is similar in form to that adopted by Judge Wallace in Anderson v. Griswold, except in reverse. Story was suggesting that the express inclusion of the president and vice president in the Impeachment Clause was evidence that senators and representatives were intentionally excluded, while Wallace found that the express inclusion of senators and representatives in section 3 showed that the president and vice president were intentionally excluded. However, the arguments are not of equivalent force because there is no argument that senators and representatives are officers of the United States, while the president and vice president are not, but there is a strong argument that the president and vice president are officers of the United States, while senators and representatives are not. To explain why it is helpful to look at the arguments in the Blount trial itself. Continue reading “Cool Story, Bro: The Historical Origins of the Office/Officer Controversy”