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.
Story’s observation regarding the possible reasoning of the Blount verdict does not exactly track the arguments made in the impeachment trial. The arguments were complicated and not entirely coherent on either side. Although the primary issue was whether a senator was a “civil officer of the United States” under the Impeachment Clause, the arguments ranged over a variety of other constitutional provisions and questions with regard to their bearing on that issue.
The key propositions advanced by Blount’s defense to show that he was not a civil officer of the United States were (1) members of Congress are not officers and do not hold offices, as demonstrated by the fact that the Constitution nowhere uses those terms in reference to them; (2) not only do various constitutional provisions implicitly distinguish between members of Congress and officers of/offices under the United States, but the Incompatibility Clause expressly prohibits anyone holding an office under the United States from serving in Congress; (3) the Commissions Clause provides that the president “shall Commission all the Officers of the United States,” but senators and representatives are not commissioned; and (4) separation of power principles and considerations of constitutional structure mandate that impeachment be limited to the executive and judicial branches. Of these four propositions, only one (the Commissions Clause) would seem to apply to the president and vice president.
The most difficult of these arguments from the standpoint of the House managers was the Incompatibility Clause. See 8 Annals of Congress 2312 (acknowledging that the Incompatibility Clause “wears an aspect more hostile to our construction of the term ‘office,’ than any other part of the Constitution”) (Rep. Harper). In an attempt to defuse this argument, the managers tentatively attempted to distinguish between offices under the United States in the Incompatibility Clause and officers of the United States in the Impeachment Clause:
The regulation [of the Incompatibility Clause] is, that no person holding an office under the United States shall be a member of either House during his continuance in office. The United States here means the Government of the United States, for the United States grants no office but through the Government. Now, it is clear that a Senator is not an officer under the Government. The Government consists of the President, the Senate, and House of Representatives, and they who constitute the Government cannot be said to be under it. Besides, a Senator does not derive his authority from the Government. The senatorial power is an emanation of the State sovereignities; it is coordinate with the supreme power of the United States; in the aggregate, it forms one of the highest branches of the Government. Giving every effect to this section, it would only prove that a Senator is not an officer under the Government of the United States, but he still may be an officer of the United States . . . .
8 Annals of Congress 2257-58 (Rep. Bayard) (emphasis in original).
Note that Story’s observation resembles Bayard’s argument here in substantial measure, even though Bayard is arguing for the opposite result. Furthermore, the point that Bayard stresses, and which Story picks up on, is the extent to which senatorial power is a reflection of state sovereignty, a point which is more debatable with respect to the president and vice president. This, in turn, could explain Story’s qualification that these executive officers “may derive” their offices from a source paramount to the national government.
In any event, I said Bayard’s advanced his argument “tentatively” because he spent as much time apologizing for it as making it. See id. at 2257 (admitting hesitancy “to place reliance in an argument upon so great a subject, upon nice distinctions or verbal criticism”); id. at 2258 (“let me confess that I unwillingly place any confidence upon an argument derived from mere verbal criticism”); id. (“The argument which I have submitted must be taken hypothetically.”). One gets the distinct impression that someone forced Bayard to make an argument that he did not believe would pass the red face test.
Blount’s defense was more than happy to jump on this argument to make the managers look ridiculous. Alexander Dallas dryly observed the “verbal criticism, to which the honorable Manager, in a state of evident embarrassment, had condescended to resort, in maintenance of the claim of jurisdiction.” 8 Annals 2269. He continued:
It had been seriously urged, that there was a distinction between officers of, and officers under, the United States; the former forming the Departments of the Governments, Executive and Legislative; the latter designating the officers appointed by the Executive Department. But a moment’s consideration will incontestably show that the expressions “officers of” and “officers under,” the United States, are indiscriminately used in the Constitution.
8 Annals of Congress 2269-70 (emphasis in original).
Dallas then proceeded to give examples of the absurd results that would be produced by Bayard’s proposed distinction between officers of and offices under the United States. One was that an impeached and convicted officer of the United States (such as the president) could be disqualified only from holding offices under the United States (i.e., offices that the president fills, but not the presidency itself), a mismatch Dallas viewed as self-evidently implausible. Id. at 2270. Furthermore:
The Constitution declares, that “no person holding any office of profit, or trust, under the United States, shall, without the consent of Congress, accept of any present,” &c. May the President, Vice President, and members of either branch of the Legislature, being, as it is said, officers of the United States, accept a present, or a title, without the consent of Congress?
Id. (emphasis in original).
Dallas’s rhetorical question here shows he viewed it as absurd to exclude the president or vice president (as well as members of Congress) from the application of the Foreign Emoluments Clause. Perhaps more importantly, he understood the Senate would see this result as absurd. It is difficult to square this fact with a widespread understanding, or even a strong minority view, that the president did not hold an “office under the United States.”
While the House managers struggled to deal with the Incompatibility Clause, Blount’s defense had difficulty explaining its position on the Commissions Clause, which was the only significant part of the defense’s argument equally applicable to the president and vice president. Noting that the clause provides that the president “shall Commission all the Officers of the United States,” the defense argued that senators and representatives could not be officers of the United States because they were not commissioned. The House managers responded by pointing out that this argument would lead to the (in their view absurd) conclusion that the president and vice president were also not officers of the United States.
Blount’s counsel responded with two somewhat different approaches. Dallas argued in the alternative. He denied that the Commissions Clause could be read to require the president and vice president to receive commissions because they “have their commissions from the Constitution itself.” 8 Annals of Congress 2272. He thus suggested that the president and vice president were properly considered officers of the United States, but that to the extent the Commissions Clause suggested otherwise, “it became necessary expressly to name them” as impeachable officers, rather than simply including them within the general category of “officers of the United States.” Id. In any event, “[u]nder the general designation of ‘civil officers,’ it would surely have been much more natural to include the President and Vice President, than members of the Legislature.” Id. at 2271. Thus, the fact that the Impeachment Clause explicitly names the president and vice president, but not members of Congress, demonstrates that the latter were not intended to be subject to impeachment. Id. at 2272.
Dallas’s co-counsel, Jared Ingersoll, took a more aggressive position. It is Ingersoll’s argument that Professors Tillman and Blackman rely on to support their view that “officers of the United States” did not refer to elected officials. See Seth Barrett Tillman & Josh Blackman, Offices and Officers of the Constitution Part III: The Appointments, Impeachment, Commissions, and Oath or Affirmation Clauses, 62 S. Tex. L. Rev. 349, 405 (2023) (“Our view is generally consistent with Ingersoll’s view: the phrase ‘Officers of the United States’ did not refer to elected officials.”). However, Ingersoll’s argument is more ambiguous than they make it out to be, and, even if read in the manner they suggest, is not altogether helpful to their position.
The key language in Ingersoll’s argument is as follows:
It is objected that the President is surely an important officer of the United States, and yet not commissioned, and therefore, that our definition is not accurate. To this we answer, that the President in the Constitution is always designated by the appropriate term of office, and never included under the expression of officer of the United States, or any generic term.
8 Annals of Congress 2289 (emphasis added). In the next paragraph Ingersoll reiterates that the president and vice president are “specially designated” in the Impeachment Clause, “instead of being included under any general denomination.” Id. Then after explaining that one distinction between senators and officers of the United States is that the latter are appointed, not elected, Ingersoll notes: “The President, indeed, is not appointed; but, as I said before, he is not comprehended under the generic term of civil officer; but specifically described by the term of his office, as is the Vice President.” Id. at 2291 (emphasis in original).
Here it is useful to compare the arguments of Blount’s two defense counsel. Dallas is somewhat vague on whether the president and vice president would technically fall within the definition of “civil officer of the United States,” but he suggests that the Impeachment Clause expressly lists them to avoid any doubt on the matter. Ingersoll is more definitive that neither the president or vice president are included in the “general” or “generic” term “officer of the United States” (and therefore would not have been impeachable had they not been expressly listed in the Impeachment Clause). The point they are making, however, is the same: if the framers had intended that members of Congress be subject to impeachment, they would have expressly listed senators and representatives in the Impeachment Clause along with the president and vice president. It is this narrow point that Justice Story picks up on in his treatise.
But Ingersoll’s argument, at least if taken literally, goes far beyond what Dallas or Story said or intimated. Ingersoll claims that the president and vice president are “never included” in “any generic term” in the Constitution. This would mean that they would not be encompassed by the Oath Clause (and thus the vice president would have no constitutional oath obligation at all) and the presidency and vice presidency would not be covered by the Incompatibility, Disqualification or Foreign Emoluments Clauses. Ingersoll’s ostensible view would be even more normatively implausible than that advanced by Tillman and Blackman because they believe the president and vice president hold a “public Trust” within the meaning of the Religious Test Clause, while Ingersoll (presumably) would maintain they are not included within this “generic” description.
There is reason to doubt Ingersoll actually intended to endorse such consequences, which were precisely the type of absurd results that Dallas, his co-counsel, had mocked. At no point does Ingersoll acknowledge or address those consequences with regard to the president or vice president, though he does briefly address the applicability of the Foreign Emoluments Clause to members of Congress:
Some observation was made on the 9th section of the 1st article of the Constitution of the United States, “that no person holding any office of profit or trust under the United States, should, without the consent of Congress, accept of any present from any King, Prince, or foreign State.” Might a Senator, one in so important a public situation, accept of a present from a foreign State? No, I answer. The power of expulsion is a sufficient check. The impropriety of the measure would be a sufficient guard.
8 Annals of Congress 2292-93.
One interpretation of Ingersoll’s remarks is that he is not addressing whether members of Congress are subject to the Foreign Emoluments Clause, but only how that clause would be enforced against them (i.e., by expulsion rather than impeachment). The stronger reading, however, is that he is tacitly conceding that under his theory the Foreign Emoluments Clause does not apply to members, but he contends that this otherwise troubling result is of little concern because each house will use its powers of discipline and expulsion to enforce the same or similar prohibitions on its own members. That argument, of course, would not apply to the president and vice president.
In addition to his silence about the consequences of his position for the president and vice president, it is worth noting some other things Ingersoll did not say. He made no reference to any shared understanding that elected officials in general, or the president and vice president in particular, are not officers of and do not hold offices under the United States. His acknowledgment of the counter-argument that the president “is surely an important officer of the United States” suggests that the common understanding cut against, not for, his position.
Ingersoll also did not make any claim that the framers (of whom he was one) had relied on the meaning of “offices under the crown” in British law or a “drafting convention” based thereon. Compare Seth Barrett Tillman & Josh Blackman, Offices and Officers of the Constitution Part IV: The “Office . . . Under the United States” Drafting Convention, 62 S. Tex. L. Rev. 455, 461-84 (2023). He did not advert to any existing practice or understanding that the Foreign Emoluments Clause did not apply to the president, nor to the (alleged) fact that President Washington had received foreign gifts which would have violated the clause if it applied. Compare Josh Blackman & Seth Barrett Tillman, Yes, Trump Can Accept Gifts, N.Y. Times (July 13, 2017), https://www.nytimes.com/2017/07/13/opinion/trump-france-bastille-emoluments.html Nor did Ingersoll mention the fact that Secretary of the Treasury Alexander Hamilton had omitted the “salaries, fees, and emoluments” of the president and vice president from a financial statement when responding to a Senate request for this information for “every person holding any civil office or employment under the United States (except the judges).” Compare Tillman & Blackman, Part IV, 62 S. Tex. L. Rev. at 484-520.
In short, there is nothing in Ingersoll’s argument that explains or elaborates on his assertion that the president and vice president were not included in any “general” or “generic” description in the Constitution. Perhaps it was a mere rhetorical flourish and Ingersoll’s actual point was limited to showing that they were not “officers of the United States” in the technical sense in which that term is used in Article II. Or perhaps Ingersoll did not think about the implications of his claim. Or maybe he did think about the implications, realized the Senate would not react favorably to them, and therefore studiously avoided discussing them in his argument.
Whatever the reason, there is no indication that anyone in the Blount trial picked up on the implications of Ingersoll’s brief references to the president and vice president. To the contrary, the House managers interpreted Blount’s position as conceding that “the term ‘civil officer’ includes the President and Vice President,” which suggests that the combination of Dallas and Ingersoll had left some confusion as to what the defense position actually was. See Annals of Congress 2306 (Rep. Harper). There is certainly no indication that anyone focused on, much less accepted, the potential implications of Ingersoll’s remarks for the president and vice president outside of Article II.
The Senate ultimately voted fourteen to eleven to dismiss the charges against Blount. Because there were several alternative issues and arguments in the case and the Senate’s deliberations were secret, it cannot be determined with certainty what any particular senator decided about whether Blount was an “officer of the United States.” See David P. Currie, The Constitution in Congress: The Federalist Period 1789-1801 280-81 (1997). However, it is generally thought (including by Story and other prominent constitutional writers of the early Republic) that this was the key issue on which the Senate’s dismissal turned. Id. at 281 & n. 359. Even so, there is no indication or reason to believe that any senator who voted for dismissal did so on the basis that the president is not an officer of the United States. On the other hand, those who voted against dismissal on the ground that members of Congress are officers of the United States must have implicitly concluded the same regarding the president (and vice president).
Back to Story
The above suggests it is a considerable overstatement to say there is an intellectual tradition of advancing “ingenious arguments” to show that the president is not an officer of the United States. In the Blount trial the two defense counsel, acting as private attorneys representing the interests of their client, advanced the proposition that members of Congress were not “officers of the United States,” either as a general matter or as that term was used in the Impeachment Clause specifically; they buttressed this argument with the contention (made more definitively by Ingersoll than Dallas) that (perhaps) even the president and vice president did not qualify as officers of the United States in Article II’s technical usage (or, as Ingersoll put it, as a matter of “verbal criticism”).
More than three decades later this point is picked up by Story, although his framing of the point in some ways resembled Bayard’s argument more than that of the defense team. Regardless, Story’s brief discussion of the matter was quoted in its entirety earlier. It appears within one section (itself part of a three-volume treatise with nearly 2,000 sections) that begins with the following observation regarding the Blount case: “A question arose upon an impeachment before the senate in 1799, whether a senator was a civil officer of the United States, within the purview of the constitution, and it was decided that by the senate, that he was not; and the like principle must apply to the members of the house of representatives.” 2 Joseph Story, Commentaries on the Constitution § 791 at 259 (footnote omitted). Notably Story did not say “the like principle must apply” to the president and vice president, nor did he suggest that the Blount defense’s “verbal criticism” of Article II with regard to those offices had any practical consequences or implications beyond its relevance to the impeachability of members of Congress.
Indeed, although Story’s treatise discusses each of the provisions in which the president and vice president are included (if at all) only by the use of a general or generic description (such as the Oath, Religious Test, Incompatibility, Foreign Emoluments, and Disqualification Clauses), not once does he consider, much less advocate, that the president or vice president might not be encompassed therein. Even the possibility that these offices/officers are excluded from one or more of these provisions would be normatively surprising and of far more practical significance than the essentially academic observation Story made regarding the arguments in the Blount trial; had Story thought there was an issue about the application of these provisions to the president and vice president, surely he would have mentioned it.
The example most relevant to section 3 is the Oath Clause because taking an oath to support the Constitution is a predicate to disqualification under section 3. The Oath Clause applies (inter alia) to “all executive and judicial Officers . . . of the United States.” Regarding this clause Story remarks “[t]hat all those, who are entrusted with the execution of the powers of the national government, should be bound by some solemn obligation to the due execution of the trusts reposed in them, and to support the constitution, would seem to be a proposition too clear to render any reasoning necessary in support of it.” 3 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 §969 at 688 (1833). While it might be of little moment (as Professors Tillman and Blackman argue) if the president were exempted from the Oath Clause because Article II provides a specific presidential oath, it would be extremely surprising if Story failed to mention that the vice president had no constitutional oath requirement whatsoever. This omission can only be explained if Story believed that the president and vice president were in fact “officers of the United States” as a general matter, even if Article II’s language creates some ambiguity in that regard. In fact, Story uses this term to describe them. See, e.g., 2 Story, Commentaries on the Constitution § 788 at 255-56 (“the remedy of impeachment is strictly confined to civil officers of the United States, including the president and vice-president”).
The bottom line is that Story’s brief observation that Article II appears to “contradistinguish” the president and vice president from “civil officers of the United States” is best understood as a technical point about the usage in that article, which was relevant only to the question whether members of Congress were subject to impeachment. Story did not suggest that his observation had any implication for the presidency and vice presidency themselves. Thus, even if Story is understood to be endorsing, rather than merely noting, the “verbal criticism” of Article II raised in the Blount trial, it is an exaggeration to say that he was advancing an “ingenious argument” that the president and vice president were not “officers of the United States” as a general constitutional matter. And there is no evidence whatsoever Story suggested they did not hold “offices under the United States” within the meaning of any constitutional provision.
It would be difficult to overstate the obscurity of the “issue” (if one can even call it that) identified by Story in section 791 of his treatise. Prior to the publication of Story’s treatise in 1833, no source of any kind, including noted constitutional treatises by St. George Tucker and William Rawle, had so much as alluded to the question whether the president and vice president were technically “officers of the United States” for any constitutional purpose. To my knowledge in the 67 years between the Blount trial and the drafting of section 3, the only mentions of the issue can be found in the reports of the Blount trial and in Story’s treatise. In fact, some abridged versions of Story’s treatise entirely omit discussion of it. See, e.g., Joseph Story, Familiar Exposition of the Constitution of the United States Containing a Brief Commentary § 122 at 83 (1842) (discussing the Blount trial’s likely conclusion that members of Congress were not officers of the United States but not mentioning the issue with regard to the president and vice president). During this time not another single word was written or recorded about this issue (again, as far as I am aware).
It is entirely possible that, at the time the 14th amendment was drafted and proposed, no member of Congress was aware of the existence of a controversy about whether the president and vice president were officers of the United States in any context, much less had connected it to the text of section 3. This possibility is well-illustrated by a House select committee report issued just a month after Congress proposed the 14th amendment. See H.R. Rep. 39-93, Hon. Roscoe Conkling and Provost Marshal Gen. Fry (1866).
The select committee had been appointed to investigate various charges and counter-charges made between Representative Conkling and an executive branch official. One of the issues before the committee was whether Conkling had violated a federal statute applying to persons “hold[ing] any office under the government of the United States.” Id. at 17.
Conkling argued, among other things, that members of Congress “do not hold offices under the government of the United States,” but rather “are part of the government, and therefore not affected one way or the other” by the law in question. Id. at 19 (emphasis in original). Conkling relied on the argument by House Manager Bayard in the Blount trial to the effect that a member of Congress “may, in the sense of the Constitution, be an officer of the government, but not under the government.” Id. at 20 (emphasis in original). This position made sense from Conkling’s perspective since (1) the statute in question referred to offices under the government; and (2) Bayard’s position at least arguably could be characterized as that of the House itself.
The committee, however, was having none of this. It began by noting that it had already disposed of the charge against Conkling on other grounds, but was addressing this issue in case its views on those other grounds were not sustained by the House. Id. at 19. We therefore have a situation (unfortunately not always the case with congressional legal opinions) where the committee appears to be expressing its sincere legal views, rather than shaping its views to reach a desired outcome.
The committee firmly rejected the notion that there was some significance to the difference in expression between office(r) of and office(r) under the United States (or the government of the United States). It pointed out that Bayard himself was half-hearted in advancing this idea, and it ridiculed the proposition in much the way that Dallas did during the Blount trial. For example, the committee expressed incredulity that the president and vice president (and possibly members of Congress if they were deemed officers of the United States) could be impeached, but if convicted and disqualified “they are only prohibited from holding offices under the United States—that is, they can hold the same offices from which they were excluded by impeachment, but [only] cannot hold . . . inferior executive offices . . . .” Id. at 20 (emphasis in original). The committee found such examples made it “irresistibly evident that no argument can be based on the different sense of the words ‘of’ and ‘under,’ as used in these clauses of the Constitution . . . . “ Id. (emphasis in original).
The committee conceded only grudgingly that members of Congress might not qualify as officers of (or under) the United States for some constitutional purposes. It acknowledged Story’s view that the Blount case “decide[d] that a United States senator is not a civil officer of the United States.” Id. at 21. However, it says that Story’s interpretation is an “incautious one” involving substantial speculation as to the Senate’s reasoning in that case. Moreover, even if that was the Senate’s conclusion, the committee expressed doubt as to whether it was a correct one. See id. (noting Story’s admission that the Senate had been “greatly divided” and that “learned commentators” such as Tucker and Rawle had been skeptical of this rationale). Nonetheless, the committee declined to reach a definitive conclusion as to whether a member of Congress was a civil officer of the United States “in the technical sense” (i.e., as the term was used in Article III generally and in the Impeachment Clause specifically), but it pronounced itself “wholly unable to come to the conclusion that the members of the national Congress are not, in the enlarged and general sense of the Constitution, officers of their government.” Id. at 21-22. Finally, accepting for argument’s sake Conkling’s position that members of Congress are not covered generally by the constitutional usage of officer of/office under language, the committee rejected the notion that this limitation should be read into federal statutory law enacted in 1852. Id. at 22.
The committee’s discussion is telling for several reasons. First, it indicates that even the proposition that members of Congress were not technically officers of (or under) the United States was not widely understood, much less accepted. This would explain why the drafters of section 3 might have initially assumed members would be covered by general language such as “any office of trust or profit under the Government of the United States.” Despite the fact that noted constitutional commentators agreed that the Blount case likely turned on a decision that senators and representatives were not officers of the United States within the meaning of the Impeachment Clause, even a sophisticated constitutional lawyer like Senator Reverdy Johnson might not have readily understood why it was necessary to separately enumerate them in section 3.
But if the “holding” of the Blount case was esoteric knowledge, the theory that the president and vice president likewise were not “officers of the United States” within the technical usage of Article III was obscure to the point of invisibility. The Conkling committee does not specifically acknowledge or address this idea, even though it cites the very section of Story’s treatise in which it appears. Perhaps the committee was not aware of Story’s comment regarding the presidency/vice presidency or perhaps it considered it too outlandish to mention. In any event, it is apparent from the committee’s discussion of the Disqualification Clause that it considered the presidency and vice presidency to be self-evidently offices under the United States. Furthermore, there can be no doubt that even if the committee had understood there to be a technical argument that they were not “officers of the United States” within the usage of Article II, it would have still found that such usage had become obsolete long before the drafting of the 14th amendment.
It is hard to understand, therefore, how anyone could conclude, as Professor Calabresi apparently has (after previously saying the opposite), that the framers of the 14th amendment intended to exclude the president and vice president from the scope of section 3. Assuming that there was anyone involved in the drafting, proposal, or ratification of section 3 who was familiar with the Blount trial arguments and/or Story commentary on this issue, the most that person could have concluded is that the president and vice president might not be officers of the United States or hold offices under the United States in some technical sense, thereby raising the possibility that the “catch all” language of section 3 would not include them. No one could have possibly thought they were unambiguously excluded from this language or even that it was more likely than not to be so interpreted.
This brings us (at long last, I am sure you will agree, if you have been dedicated enough to read this treatise length blog post) to the recent discovery of a series of editorials that appeared in the Louisville Daily Journal in the spring of 1868. See John J. Connolly, Did Anyone in the Late 1960s Believe the President Was Not an Officer of the United States (Dec. 6, 2023). The apparent context of these editorials was the ongoing impeachment trial of President Andrew Johnson and the possibility that the presidency would pass pursuant to the presidential succession statute, which provided the next in line (the vice presidency was vacant for obvious reasons) would be the president pro tempore of the Senate followed by the speaker of the House. The LDJ editorials argued that this statute was unconstitutional because members of Congress are not constitutional “officers” within the meaning of the provision of Article II that “the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President . . . .” I think it is safe to say that the LDJ did not make this claim out of an interest in constitutional scholarship, but rather because it was a Democratic newspaper opposed to the Johnson impeachment and particularly to the potential ascension to the presidency of the Radical Republican, Benjamin Wade, then the president pro tempore of the Senate.
It should be noted that the specific legal claim made by the LDJ is the same as the one made by Professors Akhil and Vikram Amar in the law review article discussed in my last post. See Akhil Reed Amar & Vikram David Amar, Is the Presidential Succession Law Constitutional, 48 Stan. L. Rev. 113 (1995). A necessary but not sufficient predicate for this argument is that members of Congress are not “officers of the United States” within the meaning of Article II, but the constitutional provision relating to presidential succession speaks only of “officers,” not “officers of the United States.” Thus, concluding that the presidential succession statute is unconstitutional requires the additional step of inferring that “officers” in the presidential succession clause is indistinguishable from “officers of the United States,” which is part of the constitutional argument made by the Amars.
Ironically, however, Professors Tillman and Blackman reject the Amarican view on this also. They maintain, contra both the Amars and the LDJ, that “officers” in the presidential succession clause is a broader term than “officers of the United States” and that congressional officers such as the speaker of the House and the president pro tempore of the Senate are also “officers” within the meaning of that clause. See Seth Barrett Tillman & Josh Blackman, Offices and Officers of the Constitution Part II: The Four Approaches, 61 S. Tex. L. Rev. 321, 421-22 (2021). Significantly, however, they note that rank and file members of Congress are not “officers” at all and therefore cannot be in the line of presidential succession. Id. at 421. This again explains why it was necessary to specifically enumerate members of Congress in section 3 and why their enumeration says nothing about the president and vice president who (Tillman and Blackman admit) are unquestionably “officers.”
Despite disagreeing with Tillman and Blackman on the actual constitutional issue presented, the LDJ editorial is helpful to them in its reasoning as to why the speaker and president pro tem are not “officers” in the sense used by Article II. Here it puts forth a variant of the Bayard/Story distinction between those who derive their offices from the federal government and those, like members of Congress, who derive their appointment from the states or the people. The latter are not “officers of the United States,” but instead are “officer[s] of the State or of the people.” In the case of congressional leaders, they are both officers of the legislative body and officers of the state/people, not of the United States. (Note here that the LDJ editorial apparently assumes that members of Congress are “officers” in some sense, which is consistent with the Conkling report, though contrary to Tillman, Blackman and the Blount defense, among many others).
The initial LDJ editorial evidently drew an immediate rebuke from those who pointed to what they saw as an obvious flaw in its thinking- it would lead to the obviously mistaken conclusion that the president and vice president were not “officers” or “officers of the United States” in the sense that Article II uses those terms. Although the LDJ’s initial editorial had apparently not addressed the president’s status (I have not seen the editorials themselves, and can only go by the descriptions provided by Connolly, Tillman and Blackman), subsequent editorials addressed these critics, which LDJ itself acknowledged were advancing “accepted doctrines.” These editorials cite Story in support of the proposition that the president and vice president are not “officers of the United States” and point to constitutional text (particularly the Commissions Clause) in support of that conclusion. They also contend that those who hold that senators and representatives are not “officers of the United States” must admit the same regarding the president and vice president, although it does not as far as I know identify anyone other than Story who does admit that.
The LDJ editorials are noteworthy for at least two reasons. First, they appear to be the earliest instance of anyone citing Story for the proposition that the president and vice president are not officers of the United States (or even taking notice of Story’s observation in that regard). Of course, the editorials are two years after the 14th amendment was submitted to the states for ratification and they make no mention of section 3. They therefore would seem to add little to the bare possibility that some people involved in the drafting or ratification of the 14th amendment were aware that the term “officer of the United States” might be ambiguous as applied to the president and vice president. They certainly do not demonstrate that anyone actually believed that section 3 was inapplicable to those office(r)s, nor that anyone could have reasonably believed they were unambiguously excluded by this language.
To the contrary, the LDJ editorials confirm that its view was not one that was widely shared by anyone at the time. As Connolly notes, the LDJ acknowledges that “its position was contrary to the accepted wisdom.” It therefore corroborates, rather than undermines, “an impressive body of other evidence supporting [the view that section 3 covers the president and vice president].” Put another way, even if one is inclined to accept the argument that the president and vice president are not “officers of the United States” in the sense used by Article II, the LDJ editorials show that this was no longer the understanding in the 1860s. The fact that the responses to LDJ focused on the implications for the presidency and vice presidency, rather than the congressional officers who were actually at issue, shows how outside the mainstream the LDJ’s position was.
The second noteworthy thing is that LDJ apparently (according to Tillman and Blackman’s description) acknowledged that its position would mean that the president also would not hold an “office under the United States” and that therefore if the president were impeached and disqualified, he would not be prevented from assuming the presidency again. If true, this would be the only known instance of anyone advocating such a position prior to Professor Tillman. But while I am happy to amend my statement that Tillman was the first person in history to make such a claim, it seems to me rather more significant that there is not a single instance of anyone else raising this point during the entirety of the Johnson impeachment trial. The evidence suggests that the overwhelming majority was with LDJ’s rival, the Cincinnati Commercial, which labeled LDJ’s constitutional analysis as “absurd.”
In summary, the LDJ editorials confirm, rather than refute, the theme of this post. They represent only the third known occasion on which the suggestion was made that the president and vice president were not “officers of the United States” within the technical usage of Article II. As on the first two occasions (the Blount trial and Story treatise), this point was made in the context of a debate about the constitutional status of members of Congress, which was the actual constitutional question at issue and the only one understood to have any practical consequence. It should hardly be surprising, therefore, that the “issue” whether the president and vice president were officers of the United States never penetrated the public consciousness in any significant way. Even Tillman and Blackman do not dispute that these officers were frequently described as officers of the United States from the early days of the Republic to the 1860s (and beyond).
To be sure, one can still argue that the LDJ interpretation of “officer of the United States” as limited to non-elected officials is the best textual reading of Article II, but this is a very different thing than claiming this interpretation was widely shared or even understood in the 1860s (or, for that matter, at any other time). LDJ itself admits that “accepted doctrine” was that the president and vice president were officers of the United States. In contrast, there was no such accepted doctrine with regard to members of Congress, which was a far more controversial issue.
As for the question whether the president and vice president hold “offices under the United States,” one must again distinguish between theoretical legal analysis and historical fact. Assuming that one is persuaded that the president is not an officer of the United States, it is theoretically possible (although, as Tillman and Blackman concede, not logically required) to extend the argument to the conclusion that he also does not hold an office under the United States. And some of the arguments made in the Blount trial (most notably, Ingersoll’s) could be read to support that extension. As a matter of historical fact, however, the only people who made this connection, at least prior to 1868, were those who were trying to discredit their opponent’s argument by demonstrating it would lead to absurd results such as an impeached and disqualified president being allowed to again assume that office. According to Tillman and Blackman (Connolly does not report this), the unnamed author of the LDJ editorial broke this pattern by “owning” the conclusion that the presidency is not an “office under the United States” within the meaning of the Disqualification Clause. If so, Tillman’s theory may be traced to this anonymous “eminent thinker.” But not to anyone else.