Thursday, January 18, 2024

Because You Can Never Have Too Much of Why Presidents are Officers of the United States

Mark Graber

Apparently, the League of Sportsmen, Law Enforcement and Defense believes that the group's interests are best served by permitting an insurrectionist to run for the presidency.  Not exactly tough on crime.  But very tough on me.  A rather substantial portion of their brief is directed toward my work on Section 3.  Significantly, the brief focuses entirely on a draft of an article I posted on SSRN, not on the amicus brief I submitted to the Supreme Court of Colorado, touching similar issues.  The difference is significant.  As most people know, what gets posted on SSRN are typically drafts.  They often contain typos, missing footnotes, and footnotes not fully vetted (same for Balkinization posts).  The header to my draft acknowledges that this is a particularly early-stage piece.  By comparison, an amicus brief is expected to be a final project with no typos and all footnotes fully vetted.  Unsurprisingly, the brief has found some flaws in the draft (I have found more, new drafts forthcoming soon), but none in the brief.  More to the point, with one trivial and one admittedly less trivial exception, the alleged flaws are illusory.

The Sportsmen’s Brief does not dispute my claim that “the Congressional Globe for the Thirty-Ninth Congress, 1st Session, is ‘littered with statements acknowledging that the President and Vice President were officers.’”  The point I was making in the contested paragraphs was simple.  The persons responsible for the Fourteenth Amendment routinely assumed that Presidents and Vice Presidents were “officers,” “officers of the United States,” and “officers under the United States.”  When members of Congress self-consciously considered the relationship between “officer,” officer of the United States,” and “officer under the United States,” they concluded that phrases had the same scope and meaning, unless context clearly demonstrated otherwise.  The Sportsmen’s Brief and, for that matter, all other briefs submitted so far, do not discuss this Congressional Report (the crucial page is 3939).

The Sportsmen do not challenge the substantial evidence that the persons responsible for framing and ratifying Section Three thought they were disqualifying all past and present officeholders from all offices.  As Gerard Magliocca, many others, and I have repeatedly noted, when asked to summarize Section Three, Republicans attached no significance to "of the United States." "under the United States," or the specific form of an oath.  Rather, they said Section Three disqualified any person who after taking an oath of office participated in an insurrection.  No brief against disqualification challenges that mountain of evidence.

My mistake, the Sportsmen’s Brief contends, is that “most of [my] citations are to debates on other topics in the months before § 3 came into being.”  I will see the Sportsmen and raise.  With the exception of a colloquy between Senators Reverdy Johnson of Maryland and Senator Lot Morrill of Maine, which the Sportsmen's Brief graciously concedes demonstrates that the President is an “officer under the United States,” none of the numerous quotations I cited in the contested paragraphs were assertions by members of Congress about the proper interpretation of Section Three.  The point was simply that members of Congress routinely assumed the president was an officer of the United States when making speeches on other topics.  This was a matter that went without saying.  When casually or offhandedly noted in a speech, we would expect no more response to the point than a response to the routine use int he Thirty-Ninth Congress of male pronouns to refer to office-holders.

The Sportsmen’s Brief makes the strange claim that many of my citations have “nothing concerning the president and vice president being officers.”  The citations in question seem to be those in which a member of Congress declares the presidency and/or vice presidency to be an office (at least such a quote can be found on every page in which the brief makes this complaint--the brief appears to have missed a few of those quotes).   I think rather obvious that a person who holds an office is normally considered an officer.  No one claimed to the contrary in 1866.  Indeed, I do not see an argument to the contrary in the brief.

The Sportsmen’s Brief takes particular offense to one sentence in the draft: “Many members of Congress, sometimes quoting President Andrew Johnson or Attorney General James Speed, declared that the president was ‘the chief executive officer of the United States.’  The brief then runs though the footnote claiming my citations do not support the proposition.  Some preliminaries.  Contrary to the Sportsmen's Brief, Senator Henry Wilson on p. 915 did assert that the president was the “chief Executive officer of the United States.”  Score one for me. Senator Willard Saulsbury of Delaware made the same assertion on p. 151 of the appendix to the Congressional Globe (the footnote mistaken places the quote on 150.  I think we should score this a draw).  The Sportsmen's Brief’s claim with respect to other sources that no member of Congress agreed (or disagreed) with these assertions that the president was an officer of the United States is hardly surprising.  As noted in the brief and in this essay, these claims were made in passing, in speeches devoted to other matters.  Again, that no member of Congress explicitly agreed when another member used the male pronoun hardly weakens the case that these were people firmly committed to some form of male supremacy.  The brief regards as “most egregious()” my claim that Representative Roscoe Conkling of New York quoted Attorney General James Speed, when Conkling merely asked that a report Speed had written by read to the Senate.  I will leave to readers to determine whether Conkling quoted Speed or whether Conkling asked an officer of the House to quote Speed makes any difference.  The more crucial point, from my perspective is that when members of Congress are quoting President Johnson or Attorney General Speed, the footnotes generally say so (again, a cite check is needed).

There is one item in the string footnote that the Sportsmen’s brief has convinced me should be deleted from the final manuscript or, better yet, elaborated upon. When Senator Jacob Howard of Michigan quoted President Johnson as declaring he was the “chief civil executive officer of the United States,” Howard prefaced those remarks by stating that Johnson was “adding what is not contained in the Constitution or the laws of the land.”  This is not a quotation that declares that the president is an officer of the United States. Score one for the brief.  The brief is nevertheless wrong to think that Howard was condemning Johnson’s claim that the president was an officer of the United States.  Howard thought the president an officer.  In the same speech, Howard spoke of “the President of the United States, who holds his office, under the Constitution.”  The general context makes clear that Howard’s beef with President Johnson was not over the nature of the presidential office, but over the power to determine the status of former confederate states.  Again, readers can look at pp. 2550-51 and make their judgment.

The great joy of the computer age is no reader need rely on the Sportsmen’s Brief, my writings, or any other account of the use of “officer” in 1866.  The Congressional Globe is online.  The Hein Online version (and others) are searchable.  Perform your own search using various versions of “officer.”  The results, I predict, will be convincing beyond a reasonable doubt.  The persons responsible for the Constitution of 1866 had no doubt that presidents were officers of the United States subject to disqualification.


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