More Desperation on Section Three

Mark Graber

Perhaps the most remarkable feature of the debate over whether Donald Trump should be disqualified from holding office under Section Three is the extent to which Trump supporters largely concede or at least do not attempt to rebut claims that Trump engaged in insurrection.  Instead, we get claims that it just turns out that Section Three is not presently enforceable or, lo and behold, there is a presidential exception to Section Three no one thought of.  But this claim is nonsense, even when appearing in the New York Times.

Professor Kurt Lash has been championing this claim, but his evidence is imagined or just made up.  His recent piece in the New York Times claims “there was not a person in the Senate or House worried about loyal Americans electing a former rebel like Jefferson Davis as president.”  There is no evidence for this assertion.  No one states, “I am not worried about this possibility.”  No one.  Not in the framing debates.  Not in the ratifying debates.  This is strictly Professor Lash’s imagined past.  You can find quotation after quotation about their worries that rebels more generally would control the national government.   Newspapers at the time reported on a movement to nominate Robert E. Lee for president (see Public Ledger, May 8, 1866). Gerard Magliocca's discussions of the Amnesty Act of 1872 report on speeches, one by John Bingham, specifically noting the possible of Jefferson Davis seeking the presidency.

Professor Lash similarly misrepresents history when he claims that “Congressional Republicans were so concerned about mischief in the Electoral College that they delayed the passage of the Fourteenth Amendment.”  Wrong again.  The Joint Committee’s draft of Section Three did not simply as, Professor Lash claims, “prohibit[] rebels from voting for presidential electors.” That provision forbade all rebels from voting in ALL federal elections for four years.  Senators objected to this provision both as covering too many people and covering too short a time.  The replacement provision, what is now Section Three, covered far fewer people (only former officeholders), but for a much longer time period (forever, unless amnestied by Congress).  There is not a single Senator who claims that the point of Section Three was to prevent rebels from serving as presidential electors.  Indeed, the final Section Three did not close what Lash thinks was a "loophole."  Rebels could still vote for members of the Electoral College.  Many rebels who did not hold office before the Civil War served as electors.  Robert E. Lee could not serve as an elector, but his chief of staff who was free to support Robert E. Lee for president could and did serve as an elector.  Not exactly a great solution for preventing Robert E. Lee from becoming president.

Professor Lash insists that ratifiers may have been confused by Section Three and thought the president may have been excluded.  Both he and I have gone through the ratification debates in some detail.  The confused ratifier exists only in Professor Lash's imagination.  As of now, neither he nor I nor anyone else has found a single ratifier who was confused on that score.  Governor Brownlow of Tennessee was typical in informing residents that the “third section is intended to prevent that class of rebel leaders from holding office, who by violating their official oaths, added one great offense to another.” Note that the reference is to “office.”  Everyone agrees that the President holds an office.  You can find quotation after quotation in both the records of the framing and ratifying debates in which participants declare that rebels who held office before the Civil War are barred from holding office after the Civil War.  So far, outside that the quotation from Reverdy Johnson that he immediately recanted (exactly why we accept the word of a Democrat over a Republican when interpreting the Fourteenth Amendment is another mystery), no one has found a single participant in the debates over the Fourteenth Amendment who made any constitutional distinction between an office and a civil officer, or an officer, an officer of the United States and an officer and the United States.

I confess to being unsure what Professor Lash means when he states that “no one has yet found evidence that any ratifier even considered the possibility that Section 3 abridged the people’s right to choose their president.”  Consider what the good citizens of Maine learned from their newspapers.  The September 21, 1866, issue of The Union and Journal summarized Section Three as providing that “a large schedule of persons civil and military, engaged in the late rebellion, shall be ineligible to any federal office hereafter until absolved by a two-thirds vote of each House of Congress.”  General Harriman in another speech covered by the Portland Daily Press declared, “the third section declares who shall not hold office.”  Harriman continued, "High-handed rebels who plotted treason in the Capitol, who inaugurated rebellion and devastated the country with bloody war, are declared to be forever disfranchised, with a provision that the disability may be removed by Congress.  Is not that reasonable?  Are you prepared to admit Jeff Davis to take the oath of office and make your laws?"  The Constitution makes clear the presidency is an office. I have yet to find a quotation that declares rebels may not be Attorney General.  Does this mean there is any ambiguity in Section Three on that score.

Professor Lash notes Blount Case, but for unknown reasons fails to inform the reader that the debate on Blount’s Case was whether members of Congress were civil officers of the United States for purposes of the impeachment clause and that Congress never resolved that matter.  His work also fails to note that the 39^th Congress discussed this matter and decided not to reach any conclusion on whether the impeachment clause covered members of Congress.  That same discussion did, however, conclude that unless the context was clear all federal officers should be considered officers of the Government and officers under the Government.  Members rejected claims that the Constitution divided government officials into “officers of the United States” and “officers under the United States.”  The committee report declared, “It is irresistibly evident that no argument can be based on the different sense of the words ‘of’ and ‘under.’” No difference existed between “an officer ‘of’ the United States, or one ‘under’ the government of the United States,” the report concluded. “In either case he has been brought within the constitutional meaning of these words . . . because they are made by the Constitution equivalent and interchangeable.”  You can find this report in the Congressional Globe, 39^th Congress, 1^st Sess., p. 3939-40.

If this is the best President Trump's supporters can do, disqualification seems in the air.