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”

Amarica’s Constitutional Crisis: A Kinda Intellectual History of the Office/Officer Controversy

[I would have said “pseudo-intellectual” but I remembered what Art Buchwald said about offending them.]

Anyway, on a recent Lawfare Podcast (at 1:23:02) a listener asked this question about the Colorado district court’s ruling (now reversed on appeal) on section 3: “How is the Colorado judge’s ruling on Trump’s disqualification based on a plausible reading of the 14th amendment and any existing precedents? What is the reasoning behind the interpretation?”

I will address this question as I interpret it, which I reformulate as follows:

Where does the idea that the president is not an “officer of the United States” and/or does not hold an “office under the United States” come from? Are there any historical or legal precedents for this idea or did Judge Wallace just conjure it out of thin air?

I begin by repeating a statement I made almost 7 years ago: “To my knowledge, prior to Professor Tillman’s raising the issue in 2009 or so, no one had ever expressly claimed or directly implied the president was excluded [from the Foreign Emoluments Clause]. No president, no member of Congress, no executive branch lawyer, no constitutional scholar. No one.” The same is true of the Incompatibility and Disqualification Clauses which, like the Foreign Emoluments Clause, apply only to “offices under the United States.”

In response, Professor Tillman cited me to examples in which President Washington received gifts that arguably would have violated the Foreign Emoluments Clause if it applied and suggested that this was the equivalent of Washington “implying” that the clause was inapplicable. (See Tillman’s comment of Mar. 17, 2017). However, there are many reasons why Washington might have thought, correctly or incorrectly, that the clause was inapplicable and other possibilities as well (he might not have thought about it at all or he might have decided that for some reason he could not comply with the letter of the clause). Regardless, this is hardly the equivalent of a public assertion that the clause was inapplicable because the president does not hold an “office under the United States.”

As I will discuss in my next post, there is slightly more of a historical pedigree to the argument that the president and vice president are not “officers of the United States” within the technical usage of Article II, an argument that also has a basis in the actual text of that article. But that argument has only minor implications for the presidency and vice presidency (it is more consequential with regard to members of Congress). Until Professor Tilllman first started writing about this issue (around 2008 or so), no one had seriously attempted to suggest that the president and vice president were not “officers of the United States” for general purposes, much less that they were exempt from constitutional provisions applying to “offices under the United States.”

There was, however, one mention of this “issue” (if that is the right word) prior to 2008. Specifically, it appears in an article entitled “Is the Presidential Succession Law Constitutional?,” 48 Stan. L. Rev. 113 (1995-96) by Akhil Reed Amar and Vikram David Amar. (For those who do not know, the Amar brothers are highly regarded legal academics and Professor Akhil Amar, in particular, is one of the most influential constitutional scholars of his time.) The thrust of the article is that it is unconstitutional to put congressional officers, such as the speaker of the House and the president pro tem of the Senate, in the line of presidential succession. One of the points the Amars make is that if a congressional officer were to become acting president, resignation from Congress would be required to avoid “a patent violation of the Incompatibility Clause rule that no sitting Senator or Representative may hold executive or judicial office.” Id. at 118-19. In a footnote, they make the following observation:

A quibbler might try to argue that the President does not, strictly speaking, “hold[ ] . . . Office under the United States,” and is instead a sui generis figure. But Article II provides that the President shall “hold his Office” for a four-year term, . . . prescribes an oath for “the Office of the President of the United States,” . . . and further provides that the President shall be removed from Office on Impeachment . . . and Conviction.” More importantly, the anti-Walpolian spirit underlying the Incompatibility Clause would have barred, for example, President George Washington from simultaneously serving as a Virginia Senator.

Id. at 119 n.34 (citations omitted) (emphasis in original).

Continue reading “Amarica’s Constitutional Crisis: A Kinda Intellectual History of the Office/Officer Controversy”

Judge Wallace, Professor Lash, and the Unambiguous Language of Section Three

Note: the discussion of section 3’s legislative history in this post relies entirely on Professor Lash’s article. Which is to say that I appreciate his work on this subject, even if I strongly disagree with many of his interpretations. 

Let’s now turn to one of the two questions Judge Wallace resolved regarding the application of section 3 of the 14th amendment to the presidency: is the presidency an office which an “insurrectionist” (which we will use as a shorthand for someone who has violated his oath in the manner specified by section 3) is barred from holding? As you will recall, the text of section 3 provides:

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

(emphasis added). The italicized words described the banned offices or positions (hereinafter “banned places”) which an insurrectionist may not hold, and you will notice that the presidency is not expressly mentioned, while both members of Congress and the comparatively trivial positions of presidential electors are.

Judge Wallace did not rely on the proposition, advanced by Professors Tillman and Blackman and much discussed on this blog, that the presidency is not an “office . . . under the United States.” Indeed, Tillman and Blackman themselves do not make this claim with respect to section 3 because, they say, there is a possibility of “linguistic drift” between the drafting and ratification of the original Constitution and the enactment of the 14th amendment. See Josh Blackman & Seth Barrett Tillman,Is the President an “Officer of the United States” for Purposes of Section 3 of the Fourteenth Amendment?, 15 N.Y.U.J. L. & Liberty 1, 25 (2021); see also id. at 54 (describing the issue of whether the phrase “office of the United States” in section 3 included the presidency as “contestable”).

Instead, the court seemed to accept that the presidency might literally be covered by the “catchall phrase” of “any office, civil or military, under the United States, or under any State,” but it explained that “[t]o lump the Presidency in with any other civil or military office is odd indeed and very troubling to the Court because . . . Section Three explicitly lists all federal elected positions except the President and the Vice President.” Anderson v. Griswold, Case No. 2023CV32577, 2023 WL 8006216, slip op. at 96 (Dist. Ct., City and County of Denver, Colo., Nov. 27, 2023). It also placed weight on the fact that an earlier version of section 3 had explicitly covered the offices of president and vice president, noting that this “certainly suggests that the drafters intended to omit the office of the Presidency from the offices to be disqualified.” Id. at 97.

The court’s analysis, to put it charitably, is rather cursory. It does not discuss the meaning of “office under the United States” or the fact that this phrase and close variants appear multiple times in the original Constitution. It does not consider the understanding of the phrase at the time the 14th amendment was drafted and ratified, or how that understanding would have been influenced by official practice and interpretation over the eight decades prior to the ratification of the 14thamendment. It also fails to ask why the framers of the 14th amendment chose to enumerate senators, representatives, and presidential electors, while covering every other federal and state officeholder, from the chief justice of the Supreme Court to cabinet officers to governors and other elected state officers, in a “catchall phrase.”

The weight the court places on the fact that an early draft of section 3 explicitly lists the presidency and vice presidency also appears to be misplaced. A reader of the court’s opinion would get the impression that a proposed amendment was introduced with those offices expressly included and then that proposal was modified to remove them. The actual drafting history of section 3 was more complex.

Continue reading “Judge Wallace, Professor Lash, and the Unambiguous Language of Section Three”

Judge Wallace and the Democracy Canon

Another preliminary matter regarding Judge Wallace’s opinion holding that former President Donald Trump was not disqualified under section 3 of the 14th amendment. In finding that the presidency is neither a disqualification-triggering nor a banned office within the meaning of that provision, the judge explained that “part of the Court’s decision is its reluctance to embrace an interpretation which would disqualify a presidential candidate without a clear, unmistakable indication that such is the intent of Section Three.” Order at 101, ¶ 314. Here, the court is essentially applying a “democracy canon” along the lines suggested by Professors Tillman and Blackman (although it does not cite them). See Josh Blackman & Seth Barrett Tillman, Sweeping and Forcing the President into Section 3, 28 Tex. Rev. L. & Pol. 105 & n. 306 (forthcoming 2024) (citing Richard L. Hasen, The Democracy Canon, 62 Stan. L. Rev. 69 (2009)).

Now the “democracy canon” is not one of the more well-established canons of construction, and I really have no idea whether it would apply here or if it exists at all. For purposes of discussion, however, I am happy to assume that there is a “democracy canon” that calls for ambiguous constitutional and statutory provisions to be construed, if possible, in favor of voter enfranchisement and empowerment. And if that is the case, and if the phrase “any office, civil or military, under the United States” in section 3 was ambiguous with respect to the presidency (it isn’t, but we will get to that in a future post), then the democracy canon could reasonably be applied to argue for a narrow construction of the phrase. In other words, if it was unclear whether the presidency was a banned office under section 3, the democracy canon would argue in favor of excluding the presidency so as not to deprive voters (well, presidential electors, really) of their ability to select the candidate of their choice for that position. Perhaps (the argument would go) the framers of the 14th amendment thought that the right of voters to select a president of their choice was so important that they should be able to vote for an insurrectionist if that is what they wanted.

Applying this canon to the question of disqualification-triggering offices, however, makes absolutely no sense. The effect here would be to preserve the ability of voters to select an insurrectionist for the presidency or any other office so long as the only oath he had violated was that of president (or vice president). But if this candidate had taken any other oath as a federal or state legislator or officeholder, he would still be disqualified. This would be an entirely arbitrary distinction that would apply to only one person in history, Donald J. Trump. The “democracy canon,” if it exists, does not support this result.

Congressman Ken Buck’s Testimony About the January 6 Committee

Yesterday, November 17, 2023, Colorado state court judge Sarah B. Wallace issued an opinion in Anderson v. Griswold, No. 2023cv32577 (filed Sept. 6, 2023), a case in which the petitioners are seeking to have Donald Trump removed from the Colorado ballot on the ground that he is disqualified from the presidency under section 3 of the 14th amendment. Judge Wallace found that “Trump engaged in an insurrection on January 6, 2021 through incitement,” conduct that apparently would have disqualified him under section 3 if that provision applied to him. Order at 95, ¶ 298. However, she concluded that Trump was not covered by section 3 because the presidency is neither a disqualification-triggering nor a banned office within the meaning of that provision. Order at 101, ¶ 315.

I will have more comments on Judge Wallace’s opinion in the days to come. For the moment I just want to highlight this bit of information that came out of the hearing: “Congressman Buck testified that he had asked to be placed on the January 6th Committee after then-Speaker Pelosi rejected two of the five Republican nominees, but his request was turned down by Republican Party leadership.” Order at 13, ¶ 30. The court credited this statement in its findings, noting that “Minority Leader Kevin McCarthy actively prevented the January 6th Committee from being bipartisan including when he rejected Congressman Buck’s request to be on the Committee.” Order at 24, ¶ 52.

I have not seen this information reported previously, though I may have missed it. In any event, it is of some historical interest, as well as being of possible legal relevance to the validity of the January 6 committee’s composition and the credibility of its findings.

Yoo and Malcolm on Section 3 of the 14th Amendment

Yesterday I listened the Federal Society webcast featuring Professor John Yoo and John Malcolm of the Heritage Foundation discussing legal and constitutional issues of presidential power. Part of the discussion focused on section 3 of the 14thamendment and whether that provision is applicable to former president Donald Trump. Yoo expressed a great deal of skepticism that section 3 applies to the presidency at all (and Malcolm agreed, though somewhat less definitively). Yoo pointed to the language of section 3 which (you may recall) says:

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

(emphasis added).

Professor Yoo maintained that the fact the president and vice president are not expressly mentioned in either the list of “banned” or of “disqualification triggering” offices/positions is strong evidence that those offices are not covered by section 3. He particularly noted that because section 3 explicitly mentions presidential electors the framers of the 14th amendment must have made a conscious decision not to include the presidency and vice presidency.

With all due respect, this makes sense only if you haven’t thought about this issue more than a moment or two. To begin with, if the framers of the 14th amendment wished to exclude the presidency and vice presidency, they must have had a reason for doing so. I have not heard anyone suggest a plausible reason (or an implausible one, for that matter) why the president and vice president would be excluded, while presidential electors and other relatively insignificant positions would be included. See Saikrishna Bangladore Prakash, Why the Incompatibility Clause Applies to the Office of the President, 4 Duke J. L. & Pub. Pol’y 35, 43 (2009) (noting that reading section 3 “to require a congressional waiver for former confederates serving as postmasters or corporals but not to require such a waiver when a turncoat wished to serve as President would be rather strange”).

Continue reading “Yoo and Malcolm on Section 3 of the 14th Amendment”

Steve Calabresi is Deeply Confused

Let me begin by saying that I do not know Professor Calabresi and have nothing against him as a person or a legal scholar. Moreover, the title of this blog post is not meant to suggest that his legal conclusion in the matter we are about to discuss is obviously wrong. I think it is probably wrong, but I do not think it is frivolous or entirely implausible. What I find confused, and frankly a bit unsettling, is the reasoning process that has led Calabresi to this conclusion.

Starting our story at the end, as it were, on September 16, 2023, Professor Calabresi wrote a blog post concluding that because Donald Trump was not and had not been “an officer of the United States” within the meaning of section 3 of the 14th amendment, he cannot be disqualified from future office under that provision. Calabresi favorably notes a recent article by Professors Seth Barrett Tillman and Josh Blackman which addresses this point, although he does not indicate whether his own view on this particular issue was influenced by their work.

As Calabresi acknowledges, slightly more than a month earlier, on August 10, he had written a blog post flatly stating that Trump falls within section 3’s ban on officeholding and therefore “is disqualified from being on any primary or general election ballots next year.” Calabresi says that he has changed his mind because of the “officer of the United States” issue, and he also suggests that he is less certain about whether the events of January 6 constitute an “insurrection” at all (I also have some doubts on the latter point, but that is not the subject of today’s post).

As you may recall from my last post, section 3 presents two issues with respect to the presidency in particular: (1) whether the president is an “officer of the United States” and therefore holds a disqualification-triggering office; and (2) whether the presidency is an “office under the United States” and therefore is an office which a disqualified official is banned from holding. Although Calabresi did not directly address either of these issues in his August 10 post, he implicitly answered both questions in the affirmative. Now, however, he has changed his mind, but only (it appears) as to the first issue. Presumably Calabresi still believes that the presidency is an “office under the United States” for purposes of section 3 (and, as we shall see, for purposes of other constitutional provisions).

Calabresi acknowledges in his September 16 post that he once believed the president is an officer of the United States. He refers to a 1995 article in which he said the “best reading” is that the president and vice president are “officers of the United States” as that term is used in the Appointments and Commissions Clauses of Article II. Steven G. Calabresi, The Political Question of Presidential Succession, 48 Stanford L. Rev. 155, 159 n.24 (1995). One problem with this reading is that the Commissions Clause provides the president “shall Commission all the Officers of the United States” and in historical practice neither the president nor vice president have received commissions, but Calabresi explained that this could “be deemed an oversight.” Id.

 According to Calabresi, his decades of academic work on the presidency have convinced him that this opinion of his “foolish youth” (as he puts it) was wrong and that “the words ‘officer of the United States’ are a legal term of art, which does not apply to the President.” Calabresi does not say when he reached this conclusion, but it is worth noting (as he does not) that he still held his original opinion at least as of 2008. See Seth Barrett Tillman & Steven G. Calabresi, The Great Divorce: The Current Understanding of Separation of Powers and the Original Meaning of the Incompatibility Clause, 157 U. Pa. L. Rev. PENNumbra 134 (2008).

In The Great Divorce (don’t ask me why it is called that) Tillman and Calabresi debate whether the Incompatibility Clause applies to the president. As readers of this blog are well aware, the Incompatibility Clause provides that “no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.” According to Tillman, the presidency is not an “office under the United States” and therefore there is no constitutional prohibition against a person serving as president and a member of Congress at the same time. In the debate with Calabresi much of Tillman’s argument was premised on the proposition that the president is not an officer of the United States within the meaning of Article II because the usage of the term in Article II shows it applies only to appointed, not elected, officials. See The Great Divorce, 157 U. Pa. L. Rev. PENNumbra at 137-38 (discussing the Impeachment and Commissions Clauses). If this is so and the terms “officer of the United States” and “office under the United States” should be read coextensively, Tilllman argues, it follows that the Incompatibility Clause does not prohibit joint congressional-presidential officeholding. Id.

 Calabresi’s response to this argument may best be described as bemused incredulity. See id. at 141 (“Seth Barrett Tillman has made an ingenious argument for an utterly implausible proposition.”). Calabresi responds to Tillman with the following points: (1) the presidency is clearly an office, as the Constitution explicitly states on multiple occasions, and every indicia of original public meaning supports the conclusion that it is an “office under the United States” and that the president is an “officer of the United States;” (2) the terms “office under the United States” and “officer of the United States” are not legal terms of art with a specialized meaning different from their ordinary meaning; (3) the usage of “office” and “officer” in legal discourse prior to the adoption of the Constitution was inconsistent with Tillman’s theory because, for example, state governors, whether or not elected, held offices under the state and were officers of the state; (4) Tillman’s theory would lead to normatively implausible results under the Incompatibility Clause (i.e., allowing a sitting president to serve in Congress) as well as other clauses such as the Foreign Emoluments Clause; and (5) Tillman’s theory is inconsistent with uniform historical practice, as exemplified by the fact that no one “in 219 years held the presidency while serving as a member of Congress, and the two sitting senators elected to the presidency, Warren G. Harding and John F. Kennedy, both resigned their senate seats upon becoming President.” Id. at 142-44. (Note: not long afterward Barack Obama and Joe Biden also resigned their senate seats after being elected to the presidency and vice presidency).

With respect to Tillman’s argument specifically regarding Article II’s use of the term “officer of the United States,” Calabresi acknowledged this was a closer question. See id. at 144-45 (noting that the Commissions Clause provides “Tillman’s best argument); id. at 157 (conceding again that Tillman has a “valid point” about the Commissions Clause). Nonetheless, he adhered to the position he had taken in 1995 that the better reading of Article II is that the president and vice president are officers of the United States. In support of that position, Calabresi particularly stresses the language of the Necessary and Proper Clause of Article I, which applies to powers vested “in the Government of the United States, or in any . . . Officer thereof.” Because the president has always been considered an “Officer” within the meaning of this provision, and because it was “highly implausible” that this language would have been interpreted differently than the nearly identical language of Article II, Calabresi argued that the president must be an “officer of the United States” for all purposes. Id. at 142; see also id. at 156 (“Tillman’s inability to differentiate the Necessary and Proper Clause is thus fatal to his thesis.”).

Finally, Calabresi notes that even if the president was not an “officer of the United States” for purposes of Article II, it would not necessarily follow that he does not hold an “office under the United States” for purposes of the Incompatibility Clause and other constitutional provisions because the latter phrase is arguably broader. Id.at 156-57.

At this point it is worth considering what Calabresi has and has not changed his mind about since 2008. It seems clear that he has not changed his view that the president holds an “office under the United States” as that term is used in various constitutional provisions, including section 3 of the 14th amendment. For example, Calabresi notes that he favored the impeachment and disqualification of Trump for the events of January 6. Presumably therefore he believes, contra Professors Tillman and Blackman, that such disqualification would prevent Trump from again ascending to the presidency because it is an “office under the United States” within the meaning of the Impeachment Clause.

Calabresi also still believes (I think) that there was no legal term of art prior to the adoption of the Constitution that excluded elected state officials in the executive branch from being officers of the state (or holding offices under the state). For example, an elected state governor would be an officer of that state within the meaning of the state’s constitution. Moreover, I assume that Calabresi still believes that elected governors and other elected state officials in the executive and judicial branches would qualify as “executive and judicial Officers . . . of the several States” within the meaning of the Oaths Clause in Article VI of the Constitution.

Calabresi has changed his mind on whether the term “officer of the United States” in Article II is best read to apply to the president and vice president. This is perfectly reasonable in my estimation. As Calabresi acknowledged in his prior writings, this is a close question and reasonable arguments can be made on either side. I have previously expressed the view that the president and vice president probably should not be considered “officers of the United States” as that term is used in Article II and so I can hardly criticize Calabresi for coming around to the same position. (Exactly why he changed his mind on this, seeing as the arguments today are no different than they were in 1995 and 2008, though, is a little puzzling).

This situation is different, however, regarding the interpretation of “officer of the United States” outside of Article II. In 2008 Calabresi said that “when the Oath Clause of Article VI requires that all federal and state executive and judicial officers takes oaths to uphold the Constitution the Clause is clearly referring to the President, the Vice President and to state governors as well as to all federal and state judges.” The Great Divorce, 157 U. Pa. L. Rev. PENNumbra at 142-43 (emphasis added). Thus, Calabresi believed the president and vice president were “executive . . . Officers . . . of the United States” within the meaning of Article VI. Presumably he must have changed his mind on this because otherwise it would make no sense for him to claim that “officer of the United States” is a term of art that excludes the president and vice president for all constitutional purposes, but his September 16 post does not mention the Oath Clause or offer any explanation for why he no longer has the opinion he expressed so emphatically in 2008.

On the other hand, I find it difficult to believe that Calabresi has changed his mind about the Necessary and Proper Clause of Article I, when he claimed in 2008 that “[e]veryone for 219 years has thought that the Necessary and Proper Clause uses these words [Officer of the Government of the United States] to refer to the President.” Id. at 142. Furthermore, he stressed that “Congress has enacted lots of legislation over two centuries predicated on the idea that it can carry into execution the President’s executive power because he is an ‘officer’ of the ‘Government of the United States.’” Id. at 156. Surely if Calabresi had changed his mind on such an important issue, he would have at least mentioned it in his blog post.

But if Calabresi has not changed his mind regarding the Necessary and Proper Clause (and the Oath Clause), it is hard to see how he could maintain that “officer of the United States” is a term of art that must be read to exclude the president (and vice president) for all purposes in the original Constitution, much less in an amendment that was enacted many decades later. Calabresi claims that the phrase “officer of the United States” must “presumptively” mean the same thing in section 3 as it does in Article II, but this cannot be right if it means something different in Articles I and VI.

Moreover, apart from the internal consistency of Calabresi’s views on these issues, I have questions regarding the interpretive methodology that leads him to declare so confidently that the Constitution establishes “officer of the United States” as a legal term of art that excludes the president and vice president for purposes of section 3, when Calabresi himself admits that the drafters of section 3 themselves did not understand this to be the meaning of the term. Calabresi concedes that “[t]he Senate in debating Section 3 of the 14th Amendment was of the view that the president is an officer of the United States.” If the Senate did not understand this “term of art,” is Calabresi claiming that the House, the legislatures that ratified the 14th amendment or the public at large did so? I don’t think he is making this claim, and if so he certainly has not produced evidence to substantiate it.

A far more conventional analysis, it seems to me, would be to say that while the ordinary meaning of “officer of the United States” would seem include the president and vice president, Article II’s usage of that term makes it ambiguous as applied to these officeholders. One would then ask what reasons support a narrower or broader construction of the term as used in section 3. For example, would excluding the president and vice president from the list of officeholders who are disqualified from public office if they engage in insurrection or rebellion be a normatively plausible result? Would someone reading the text of section 3 when the 14thamendment was proposed by Congress have understood this exclusion given that the list of disqualification-triggering offices covered all other significant (and many insignificant) federal and state offices? The answers to these questions seem self-evident. If there are countervailing considerations that would support a narrower construction, I have not heard them.

Finally, it seems to me that all law professors or other self-appointed constitutional experts would be well-served by a dose of humility in commenting on section 3, given that there are obviously a host of novel and unsettled issues arising from its potential application to the events of January 6. Declaring confidently on one day that section 3 clearly disqualifies Trump from office and with equal confidence a few weeks later that it does not apply to Trump is a textbook example of what not to do.

Does Section 3 of the Fourteenth Amendment Apply to State Elected Officials?

Less than a week after the January 6, 2021 attack on the Capitol, I wrote a brief blog post on whether section 3 of the 14th amendment applied to the presidency. (Don’t feel bad if you forgot this- so did I). The relevant text of section 3 is set forth below:

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

This language describes two categories or groups of offices or positions. One is the category of previously held offices/positions which will trigger section 3’s disqualification if the official in question, after taking the oath, commits insurrection, rebellion, etc. We will call this category, following the terminology used by Professors Baude and Paulsen, the “disqualification-triggering” offices or positions.

The second category (second in time, although it appears first in the text of section 3) consists of those offices/positions that a previously disqualified official is prohibited from holding in the future. We will call these, following Professor Hemel, the “banned” offices or positions.

My prior post briefly addressed two questions: (1) whether the president is an “officer of the United States” under section 3 and therefore holds a disqualification-triggering office; and (2) whether the presidency is an “office under the United States” and therefore qualifies as a banned office. I predicted, based on a long history of work by Professor Tillman, joined more recently by Professor Blackman, that Tillman and Blackman would answer both these questions in the negative. I also noted, based on my own long history of responding to (mostly) Tillman’s work, that these answers would be wrong, although I allowed that the first question was “somewhat closer” than the second.

As it turns out, my prediction was not entirely correct. Tillman and Blackman do indeed claim that the president is not an officer of the United States and therefore does not hold a disqualification-triggering office, but they expressly decline to take a position on whether the presidency is an “office under the United States” for purposes of section 3. This constitutes progress, I guess, and I congratulate them for not extending what I consider to be grievous error. In the same spirit, I will somewhat soften my position on the first question. Although I am still inclined to think the president is an officer of the United States for purposes of section 3, I think it is fair to treat it as an open question, which I hope to explore further in future posts.

Today, however, I want to address a different set of issues, which have not been discussed in depth by any of the principal commentators on section 3 (at least to my knowledge). Does section 3 apply to state elected officials/positions and, if so, which ones? This question is not only of some current interest in its own right, but the answer has some important implications for the Tillman/Blackman theory that underlies the overall controversy.

Continue reading “Does Section 3 of the Fourteenth Amendment Apply to State Elected Officials?”

Can Trump be Prosecuted for Violating the Speech or Debate Clause?

According to media reports, the target letter received by former President Donald Trump on July 16, 2023, indicates that he may be charged by the grand jury with violating 18 U.S.C. §241, a Reconstruction-era law that criminalizes the following conduct:

If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same;

This provision has not been previously discussed as a possible charge arising out of the January 6 attack on the Capitol, and its inclusion in the target letter seems to have taken many observers by surprise. In what way could Trump’s conduct be said to violate this statute?

One possibility is that Trump conspired to “injure” the “free exercise or enjoyment” of the right to vote of those persons who elected Joe Biden as president by seeking to overturn the results of the election. Another is that he conspired to injure the rights of those voters who voted for Biden electors in the seven states where he sought to replace them with the “fake electors.” On its face, though, this seems like a somewhat strained reading of the statutory language, which is more naturally read to apply to direct interference with someone’s rights, rather than with the benefits that might ordinarily flow from the exercise of such rights. (Another possible problem is that the right to vote for president is initially granted by state, rather than federal, law).

Perhaps Trump conspired to “injure” or “oppress” the free exercise of the right to vote by presidential electors in those states where he sought to replace them. The Constitution  grants electors appointed by the states the right to vote for president and, while Trump did not directly interfere with their right to cast their votes, he clearly attempted to prevent their votes from being either opened or counted. This seems to me like a better fit with the statutory language, but it is still somewhat problematic. An attempt, even by fraud or other illegal means, to influence Congress or the vice president in how they treat the certificates of presidential electors  arguably does not implicate any personal right or interest of the electors themselves and is awkwardly described as an attempt to injure or oppress the rights of the electors.

This leaves one other possibility (that I can think of). Perhaps Trump conspired to “injure, oppress, threaten or intimidate” the vice president and/or members of Congress in the free exercise of their rights to participate and vote in the electoral count on January 6, 2021. Indeed, that seems like a fairly straightforward description of some of Trump’s actions. There can be little doubt, for example, that Trump openly tried to threaten and intimidate Vice President Pence with regard to his role in the electoral count process. (Whether some or all of that conduct is protected by the First Amendment is a separate question.).

There is a possible objection here too. The vice president’s role in the electoral count is arguably of a purely ministerial nature (indeed that is what Pence said in declining the invitation to disregard Biden electors) and thus might not involve any “right or privilege” secured by the Constitution or federal law. Furthermore, while federal law purports to give members of Congress the authority to vote on certain objections to presidential electors, it is also debatable whether this (constitutionally questionable) authority constitutes the kind of “right or privilege” that section 751 is intended to protect.

Here, however, Special Counsel Jack Smith may have some ammunition in the Speech or Debate Clause, which (as we all know) provides that “for any Speech or Debate in either House, [senators and representatives] shall not be questioned in any other Place.” This protection is typically described as a privilege or immunity of members of Congress, and the Supreme Court has explained that it “was designed to assure a co-equal branch of the government wide freedom of speech, debate, and deliberation without intimidation or threats from the Executive Branch.” Gravel v. United States, 408 U.S. 606, 616 (1972) (emphasis added). To the extent that Trump used threats or intimidation (beyond the protection of the First Amendment) to interfere with the electoral count process, he arguably sought to “threaten” or “intimidate” the vice president and/or members of Congress in the free exercise of the right and privilege of speech, debate, and deliberation protected by the Speech or Debate Clause (as well as the 12th amendment and Electoral Count Act).

It could be argued that the Speech or Debate Clause applies to debates and deliberation over legislation and other matters which the Constitution places within the jurisdiction of either House, but not to the ministerial and ceremonial electoral count, which ordinarily involves no debate or deliberation of any kind. However, this argument is substantially undercut by the fact that the chief judge of the US District Court for DC recently agreed with former Vice President Pence that the Clause applies to the electoral count proceeding and the vice president’s role therein. Furthermore, in a separate case, currently pending before the DC Circuit, Representative Scott Perry is similarly arguing that the Clause should protect his activities related to the electoral count. While the district court in Perry’s case did not agree with his views on the extent to which the Clause would protect him from compelled production of his cell phone records, it did agree that the Clause applied to the electoral count proceeding:  “Given that certification of the Electoral College vote is a matter which the Constitution places within the jurisdiction of both Houses of Congress, activities necessary and integral to fulfilling that task are entitled to Clause protection.”

Indeed, if this turns out to be the theory that the special counsel is using to support a charge under section 451, it would not be surprising if he got the idea from the litigation initiated by Pence (who quoted the above-referenced language from Gravel in his motion to quash) and Perry.