Presidents as Officers of and under the United States: The View from the Thirty-Ninth Congress, Second Session

Mark Graber

The historical evidence demonstrates that the persons responsible for Section Three of the Fourteenth Amendment thought they had included former presidents as persons subject to disqualification, even when such persons had never held previous office, and included the presidency as an office to which insurrectionists were disqualified.  No one in 1866 who supported the constitutional ban on present and future officer holding by those past and present office holders who engaged in insurrection would have thought that Donald Trump was not disqualified from seeking the presidency in 2024 because former President Trump had never been an officer of the United States or because the presidency he hungers after is not an office under the United States.  I presented the evidence for this historical claim in a draft up on SSRN and in several blog posts found here and here.   John Vladolus,’s “Insurrection, Disqualification, and the Presidency,” 13 British Journal of American Legal Studies ___ (2023) is another excellent source (as are the collected writings of Gerard Magliocca).

My past work included a survey of all uses of “office(r) of” and “office(r) under” during the first session of the Thirty-Ninth Congress, the session in which the Fourteenth Amendment was drafted.  This survey found multiple uses of these phrases to describe the President of the United States, a committee report that self-consciously declared all elected officials of the national government to be officers, “officers of the United States,” and “officers under the United States” unless the Constitution clearly specified otherwise, and no claim denying that presidents were “officers of the United States” or denying that presidents were “officers under the United States.” As important, the survey found that members of Congress repeatedly described Section Three as directed at all officials and all rebels, implicitly treating the phrases “office(r) of” and “office(r) under” as having no independent constitutional significance.  The Republicans who supported Section Three maintained that they were disqualifying from public office all rebels who had previously held public office.

This blog post details the results of my survey of all uses of “office(r) of” and “office(r) under” during the second session of the Thirty-Ninth Congress, the session in which Congress began implementing the proposed (not yet ratified) constitutional ban on officeholding by past and present office holders who engaged in insurrections. To no surprise, members of Congress from December 3, 1866 to March 3, 1867 used the phrases “office(r) of” and “office(r) under” exactly as they had used these phrases from December 4, 1865 to July 28, 1866.  The summary is almost the same, with an interaction between two leading Republicans replacing the committee report as a particularly self-conscious episode in which presidents were acknowledged as officers of the United States.  This survey found multiple uses of these phrases to describe the President of the United States, an interaction between Representatives James Ashley of Ohio and John Bingham of Ohio in which both self-consciously declared the president to be an “officer of the United States,” and no claim denying that presidents were “officers of the United States” or denying that presidents were “officers under the United States.”  As important, the survey found that members of Congress repeatedly described Section Three as directed at all officials and all rebels, implicitly treating the phrases “office(r) of” and “office(r) under” as having no independent constitutional significance. Representative Robert C. Schenck was among the many Republicans who equated holding “office under the General Government” with “holding office.”

Members of the Thirty-Ninth Congress repeatedly spoke of the president as an officer of the United States. Senator Benjamin Wade of Ohio maintained that the president was “the chief executive officer of the United States.”  Representative Robert S. Hale of New York referred to the president as “the chief executive officer of the Government.”  With specific reference to presidential impeachments, Hale stated, “before such charges can be made here against any officer of the Government he must be put on trial on the constitutional form.”

Republicans without contradiction declared the president to be an officer of the Government during the most important political debates held during the second session of the Thirty-Ninth Congress.  Representative James Garfield of Ohio when talking about presidential removals stated, “I hope that all officers of the Government will have by this bill a ground to stand upon, and that none of them, whether civil or military, may be removed at the will and pleasure of any officer of the United States.”  Senator Jacob Howard of Michigan implicitly referred to the president when he indicated “some branch or officer of” the Government was responsible for Jefferson Davis’s confinement.  Representative Thaddeus Stevens of Pennsylvania in a speech defending the constitutional authority of the Congress was speaking of the president of the United States, among others, when he asserted, “No other officer of the Government, possesses one single particle of the sovereignty of the nation.”

Bingham, generally regarded as a particularly important framer of the Fourteenth Amendment, if not the framer of the Fourteenth Amendment, self-consciously maintained the president to be an officer of the government in two central political debates.  The first was over a provision in what became the Tenure of Office Act, the measure under which President Andrew Johnson would eventually be impeached.  A draft of that bill declared that any officer of the Government of the United States who shall appoint or commission any person to an office in violation of the provisions of this act shall be deemed guilty of a misdemeanor in office, and on conviction thereof shall be dismissed from office.”  Bingham objected, pointed out that that language “clothes the civic courts with the power to remove any officer from office, the President not accepted.”  The phrase “shall be dismissed from office” was then removed from the final bill.  Less than a week later, Bingham made the same point when Ashley called for an investigation to determine whether “any officer of the Government of the United States.”  Bingham immediately objected claiming that Ashley’s resolution covered “every civil officer in the United States.”  During the colloquy that followed, both made clear that their reference to “officer of the United States” included the President of the United States.

This consensus that the president was an officer of the United States was bipartisan.  Such opponents of the Fourteenth Amendment as Representative Benjamin Boyer of Pennsylvania, Representative Michael Kerr of Indiana, Senator Edgar Cowan of Pennsylvania, Senator James Dixon of Connecticut, Senator Williard Saulsbury of Delaware, and President Andrew Johnson referred to the president as “the “first officer of the Republic,” “the chief executive officer of the United States,” the highest officer of the Government,” and "the chief executive officer of the country.” Dixon declared that he knew “that not a single officer of the General Government from the President down can receive his salary without an appropriation from Congress.”  Democrats were as prone as Republicans to include the president when talking about officers of the United States.  Representative John Chanler of New York, after asserting with respect to the Ashley resolution discussed above, “Whether the President of the United States be innocent of guilty of the crimes and high misdemeanors charged to him in the resolution is a question for determination in the future,” declared, “I stand here ready to initiate an examination into the conduct of any office of the Government who may be charged in good faith with impeachable offenses.” Senator Charles Buckalew of Pennsylvania with reference to the president stated, “no Senator will contend that Congress cannot prohibit by law the abuse of his authority by any officer of the United States

Federal law reflected this consensus that presidents were not above the law of Section Three.  The First Reconstruction Act declared that persons disqualified under Section Three could not vote for or be a member of a “convention to frame a constitution for any of said rebel states” or be eligible for voting or holding office “under such provisional governments. Presumably, no one thought past and present presidents who engaged in insurrections were an exception to this policy.

Such members of Congress as Senator George Williams of Oregon and Senator Lyman Trumbull of Illinois assumed governors were officers of a State, an assumption inconsistent with the view that presidents are not officers of the United States.  The Committee on Public Lands recommended that “no person shall ever be employed as a professor or teacher in the said agricultural college in the State of Tennessee who had ever held military of civil office under the so-called confederate government, or under the rebel State government of Tennessee.” Presumably this covered governors.

When members of the Thirty-Ninth Congress spoke of Section Three, they maintained that the provision covered all leading participants in insurrections and all governmental officers.  No member of Congress treated ““office(r) of” and “office(r) under” as encompassing a more limited number of officers or offices than “office(r).”  Trumbull stated that Section Three “excluded from office . . . every person who had held an office of any considerable importance,” or any “office of significance or importance.”  Representative Benjamin Loan of Missouri insisted that Americans would “by a ratification of the proposed constitutional amendment disqualify all of their rebel leaders from holding any office under the Government of the United States.” No Republican hinted at a presidential exception to Section Three.  Representative William Dodge of New York asserted, “the men who have ever held office under the confederate government are to be entirely disfranchised.”

Republicans made clear that after ratification of the Fourteenth Amendment, rebels need not apply to any governmental position.  Senator Charles Sumner of Massachusetts claimed, “If rebels cannot be officers under the Government they ought not to be voters.” Ward declared, “The leaders of the rebellion should never again return to power in this country.  . . . They should never be clothed with trust in this Government. . . . None of these restless, dangerous men should ever again cast a vote or hold an office under this Government. . . .. . . [L]et them go, disfranchised, shorn of all political power.” Such comments are hardly consistent with an understanding that presidents were not disqualified or that former rebels were eligible for the presidency.  Representative George Miller of Pennsylvania expressed the Republican consensus when he stated that “leading rebels . . . seem extremely anxious to be in a position to make and administer laws for the loyal people of the country.  . . . But in the mean time these persons must understand that in Government affairs they must take a back seat.”

The penchant of some originalist to insist that, despite this evidence, the original meaning of the Fourteenth Amendment is that presidents are not officers of the Government is Exhibit A in the demonstration that originalism has nothing to do with history.  The persons responsible for the Fourteenth Amendment thought the presidency was an office of the United States and the president was an officer under the United States.  No good reason exists for carving out a presidential exception to the offices and persons subjected to Section Three disqualification.  Any method of constitutional interpretation that makes the ahistorical conclusion that, against all common sense, Donald Trump is constitutionally qualified to serve as president of the United States, ought to be disqualified as a theory of constitutional interpretation on that ground only.