A Reality Check on "Officers of the United States" at the Founding

John Mikhail

The Supreme Court seems poised to reverse Colorado’s decision to exclude Donald Trump from its Republican presidential primary ballot, and to do so on grounds other than that Trump did not take the right kind of oath to support the Constitution. Nevertheless, one or more of the Justices might still be inclined to agree with Trump that the President is not an “officer of the United States” within the meaning of Section Three of the Fourteenth Amendment. Trump prioritized this argument in his briefs to the Court, drawing primarily on the scholarship of Seth Barrett Tillman and his co-author, Josh Blackman. While I have long admired the detailed work that Professors Tillman and Blackman have done on this topic, I remain unconvinced by their core argument that this term refers only to appointed officials, not elected officials. In this post, I outline some of the reasons why, drawing upon research that I have pursued for many years on the Officers of the United States to which the Necessary and Proper Clause refers. Much of the evidence I discuss here has been ignored or overlooked in the existing scholarship on Section Three, and most of it does not appear in any of the briefs in Trump v. Anderson. Nonetheless, all of this evidence seems both relevant and probative of how this term was actually understood and used by the founding generation. Collectively, it lends support to the conclusion that the President is an “officer of the United States” for the purposes of Section Three. 

The Vice President’s Oath

The very first statute passed by the First Federal Congress was “An Act to regulate the Time and Manner of administering certain Oaths,” which was signed into law by George Washington on June 1, 1789. Before the adoption of this statute, the only federal official who had taken an oath to support the new Constitution was Washington himself, who did so at his first inauguration on April 30, 1789. Vice President John Adams attended Washington’s inauguration and began presiding over Senate meetings on April 21, but Adams did not take his own oath of office on April 21 or April 30. Instead, he waited to do so until after the passage of the Oath Act because, unlike the President’s oath, the text of Adams’ oath was not specified by the Constitution.  It had to be spelled out by law under the Oath or Affirmation Clause of Article VI.

When Adams took his own oath on June 3, then, he did so pursuant to Article VI, not Article II or any other constitutional provision. Moreover, he evidently did so not as a Senator, Representative, or state legislator, but as an officer of the United States. Yet Adams was an elected official, not an appointed one. Trump’s contention that every officer of the United States must be appointed, not elected, therefore appears to be at odds with what the federal government actually did when it enacted the Oath Act, as well as with the oath Adams took two days later.

Together with Washington, seventeen members of the First Congress that enacted the first Oath Act were delegates to the constitutional convention. Dozens more had served as delegates to state ratifying conventions. There is no record of any of these individuals objecting to this statute on the grounds that Adams was not an officer of the United States within the meaning of Article VI. On the contrary, all of them apparently took for granted that he was one of the officers of the United States to which Article VI refers.

Madison’s “otherwise provided for” caveat

The claim that every officer of the United States is appointed, not elected, rests primarily on three clauses of the original Constitution, in addition to the Oath and Affirmation Clause. The Appointments Clause provides that the President “shall appoint Ambassadors, other Public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States….” This language seems to imply that “Officers of the United States” are appointed officials, not elected officials, hence that the President is not one of them. The Commissions Clause provides that the President “shall Commission all the Officers of the United States,” which again suggests that the President himself is not an officer of the United States. Finally, the Impeachment Clause provides that “The President, Vice President, and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” Because this clause does not refer to “other” civil officers of the United States, it seems to imply that the President and Vice President are not members of this category.

The Appointments Clause argument is more complicated than it seems, of course, because of the ellipsis in the version of it given above. In full, the clause states that the President “shall appoint Ambassadors, other Public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law….” (emphasis added). In his reply brief, Trump refers to the italicized phrase as “the ‘otherwise provided for’ caveat,” Reply Brief at 7-10, and he argues that it was added to the Constitution to account for the appointment of inferior officers and recess appointees. Id. at 10.  Trump also suggests that the caveat could “refer to the appointment of ‘legislative officers’ such as the House parliamentarian. . . .” Id. 

These arguments indicate a profound misunderstanding of the “otherwise provided for” caveat and why this language appears in the Constitution. That language appears there because the Framers understood at the outset of the Philadelphia convention that some Offices and Officers of the United States would be designed by the Framers themselves and have powers vested by the Constitution itself, whereas others would be created by statutes and have powers delegated by Congress. The most important such officer, of course, was the President of the United States, and the “otherwise provided for” caveat was used from the very beginning of the convention to acknowledge that while the President would be appointed by whatever mechanism the delegates eventually decided upon, the power to appoint other officers would likely be vested in the President himself. That is the central reason why James Madison, seconded by James Wilson, first moved on June 1 that the Executive be vested with the power “to appoint to offices in cases not otherwise provided for.” 1 Farrand 63, 67. 

Madison’s “otherwise provided for” caveat was approved on June 1, and it was included in the report of the Committee of the Whole on June 13 in the following form:

Resolved, That a national executive be instituted, to consist of a single person; to be chosen by the national legislature, for the term of seven years; with the power to carry into execution the national laws, to appoint to offices in cases not otherwise provided for—to be ineligible a second time, & to be removeable on impeachment and conviction of malpractices or neglect of duty….” 1 Farrand 236 (emphasis added).

The same caveat appears in the New Jersey Plan (“to appoint all federal officers not otherwise provided for”); the resolutions given to the Committee of Detail (“to appoint to Offices in Cases not otherwise provided for”); the Randolph/Rutledge draft for the Committee of Detail (“to appoint to offices not otherwise provided for. <by the constitution>”); the Wilson/Rutledge draft for the Committee of Detail (“and appoint (Officers in all Cases) . . . not otherwise provided for by this Constitution”); the draft constitution finally approved by the Committee of Detail and circulated to the delegates on August 6 (“and shall appoint officers in all cases not otherwise provided for by this Constitution”); and, perhaps most significantly, the September 4 report of the Committee on Postponed Parts (“and all other officers of the U.S. whose appointments are not otherwise herein provided for”). 1 Farrand 244; 2 Farrand 132, 145, 171, 185, 495. 

None of this had anything to do with inferior officers or recess appointments (let alone with the House parliamentarian). The Recess Appointments Clause was not added to the Constitution until September 8, and the Inferior Officers Clause was not added to it until September 15. The reason why the Framers included the “otherwise provided for” caveat in their motions and drafts throughout the summer of 1787 stemmed from their recognition that the manner by which some Officers of the United States—most prominently, the President—would be appointed to their offices was “otherwise provided for” by the Constitution itself. Justice Scalia was exactly right about this—and for that matter, so was Chief Justice Marshall, who clarified this very point in his circuit opinion in United States v. Maurice. See 26 F. Cas. 1211, 1214 (C.C.D. Va. 1823) (interpreting the Appointments Clause to mean that “all officers of the United States, except in cases where the constitution itself may otherwise provide, shall be established by law”) (emphasis added).

Commissions and Inferior Officers

The Commissions Clause states that the President “shall commission all the Officers of the United States” without any apparent qualification, a point Trump highlights in his briefs. This unqualified language might lead one to assume that every officer of the United States receives a commission from the President. That did not happen during George Washington’s presidency, however, nor does it always happen now. When Washington appointed principal or inferior officers of the United States, he generally commissioned those officers by providing them with a written document that confirmed their appointment and authorized them to fulfill their duties. Yet when inferior officers of the United States were appointed by Courts of Law or Heads of Departments, they typically did not receive a presidential commission. Instead, one of two things occurred: either these inferior officers received their commissions from whichever department or principal officer had actually appointed them, or they did not receive written commissions at all. 

For example, the first clerk of the Supreme Court, a man named John Tucker, was appointed by the Court pursuant to the Judiciary Act of 1789.  On February 3, 1790, he took both the specific oath of office required by the Judiciary Act and an Article VI oath as a judicial officer of the United States. See 1 DHSC 157-176. Tucker, however, did not receive a commission from the President. Likewise, when Alexander Hamilton appointed Tench Coxe to serve as Assistant Secretary of the Treasury Department, he commissioned Coxe himself. 6 PAH 411. The First Congress reinforced this practice by enacting a statute that required the Secretary of State to affix the seal of the United States to all civil commissions given to principal or inferior officers of the United States appointed by the President, but which was silent about inferior officers appointed by someone else. 1 Statutes at Large, Ch. 14, Sec. 4, approved September 15, 1789. This statute, of course, was the other federal law at issue in Marbury v. Madison, by means of which Marbury claimed a right to his commission. See generally 5 U.S. (1 Cranch) 137 (1803); id. at 140, 155.

The key takeaway here is that the operative meaning of the Commissions Clause, as it was construed and implemented by Washington and other members of the founding generation, appears to have been something like: “[The President] shall Commission all the Officers of the United States [whom he appoints].”  Cf. Marbury, id. at 156 (recognizing that the clause “may never have been applied to officers appointed otherwise than by [the President]”). If this is correct, then Trump's argument to the contrary notwithstanding, nothing significant for Trump v. Anderson follows from the fact that the President does not commission himself. 

In considering certain word choices, one can obsess over their logic and apparent paradoxes if one likes. (“The Dean shall determine all faculty salaries; the Dean does not determine her own salary; therefore, the Dean is not a member of the faculty.”) As Samuel Bray observes, however, reasonable people using their common sense know not to do this, if the context dictates otherwise. Linguists and philosophers have studied the properties of so-called distributive quantifiers—words like all, most, some, and no—in great detail, and their findings are in line with Bray’s point: these quantifiers are generally context-dependent and often have tacit or hidden domain restrictions that constrain their scope. An elegant formulation of this insight is given by the philosopher David Lewis: “Remember that part of the ordinary meaning of any idiom of quantification consists of susceptibility to restrictions; and that restrictions come and go with the pragmatic wind.” On the Plurality of Worlds, p. 164. Quite so. That the President does not commission himself is clear, yet that fact hardly proves that he is not an Officer of the United States. 

Story’s Commentaries and the Drafting History of the Impeachment Clauses

Leaning heavily on the authority of Joseph Story, Trump argues that because the Impeachment Clause of Article II refers to “all civil Officers of the United States” rather than “all other civil Officers of the United States,” the President and Vice President cannot be officers of the United States, in light of the fact that they are listed separately in that clause. Justice Story proposed this idea in his influential Commentaries on the Constitution of the United States, although he did so in a somewhat equivocal manner, first referring to the President and Vice President as officers of the United States (§788) before suggesting the opposite conclusion (§791). Diligent though he was, Story did not have the wealth of easily searchable resources about the formation of the Constitution that we possess today. As a result, when he published his Commentaries in 1833, he could not test his tentative theories about the original or intended meaning of “officers of the United States” against this body of evidence. We can do this, however, and if one does, the best explanation that emerges is unlike the one Story felt inclined to adopt in 1833. 

For our purposes, four steps in the process by which the Framers drafted the impeachment provisions of the Constitution are especially significant. All of them were apparently unknown to Story but should inform our own understanding of the topic at hand. First, when the Committee of Detail returned its draft constitution on August 6, it clearly identified the President as an Officer of the United States. The relevant passage appears in Volume 2 of Max Farrand’s Records of the Federal Convention of 1787 and reads in pertinent part as follows:

The Jurisdiction of the Supreme Court shall extend to all cases arising under laws passed by the Legislature of the United States; to all cases affecting Ambassadors, other Public Ministers and Consuls; to the trial of impeachments of Officers of the United States; to all cases of Admiralty and maritime jurisdiction; . . . . The Legislature may assign any part of the jurisdiction above mentioned (except the trial of the President of the United States) in the manner and under the limitations which it shall think proper, to such Inferior Courts as it shall constitute from time to time. 2 Farrand 186 (emphasis added).

There is no reasonable way to understand this passage without assuming that the President is one of the “Officers of the United States” to which the first sentence refers. There is no evidence, however, that anyone at the convention objected to this provision because its parenthetical reference to the President was improper. The Committee of Detail, of course, was comprised of many of the nation’s best lawyers, including three future Justices of the Supreme Court (Oliver Ellsworth, John Rutledge, and James Wilson) and the first Attorney General of the United States (Edmund Randolph). To suggest that these men did not comprehend the meaning “Officer of the United States” or whether the President was such an officer would be extraordinary. Along with a handful of other delegates, after all, they were the primary framers of the Constitution, who created the Presidency and inserted this term into the Constitution in the first place.

Second, between August 20 and September 4, the convention made a series of decisions that resulted in transferring the power to try impeachments from the Supreme Court to the Senate. See generally id. at 337, 367, 427, 431. As a result, the foregoing grant of jurisdiction was replaced with a new grant which read: “The Senate of the United States shall have power to try all impeachments; but no person shall be convicted without the concurrence of two thirds of the Members present,” id. at 493, a clause later expanded to include a requirement that “every Member shall be on oath,” id. at 547. In addition, the Committee on Postponed Parts substituted the Senate for the Supreme Court in a separate clause laying out the standard for impeaching and removing the President. Accordingly, the revised version of that clause provided that the President “shall be removed from his office on impeachment by the House of representatives, and conviction by the Senate, for treason or bribery….” Id. at 495. This clause was later adopted with the addition of “other high crimes and misdemeanors” on September 8. Id. at 545.

Third, after these changes occurred, a proposal was made on September 8 to clarify that the “treason, bribery, or other high crimes and misdemeanors” standard for impeaching the President would also apply to the Vice President and other national officers. Accepting this proposal, the convention voted to add the following language to the Constitution:

The Vice President and other civil Officers of the United States shall be removed from Office on impeachment and conviction as aforesaid. Id. at 545.

This motion was adopted unanimously, without any recorded discussion. Again, there is no evidence that anyone thought its language was problematic because the use of the word “other” implied that the Vice President was an Officer of the United States. On the contrary, all of the delegates apparently took for granted that the Vice President was such an officer.

Finally, sometime between September 10 and September 12, the Committee of Style made the fateful decision that led Story to his speculations about the meaning of “officers of the United States” in Section 791 of his Commentaries. Briefly, here is what appears to have happened.  The main impeachment provision that was handed over to the Committee was clunky and repetitive, the result of separate votes on different motions taken at different times. No manuscript gathering these provisions in one place has survived, but as reconstructed by Max Farrand, the full passage read as follows:

He shall be removed from his office on impeachment by the House of Representatives, and conviction by the Senate, for treason or bribery or other high crimes and misdemeanors against the United States; the Vice President and other civil Officers of the United States shall be removed from Office on impeachment and conviction as aforesaid; and in case of his removal as aforesaid, death, absence, resignation, or inability to discharge the powers or duties of his office the Vice President shall exercise those powers and duties until another President be chosen, or until the inability of the President be removed. Id. at 575.

This language was a bit of a mess, but the revisions made by Gouverneur Morris on behalf of the Committee of Style improved things. First, Morris realized that the references to the House and Senate were unnecessary because other provisions in the draft he was working with provided that “The House of Representatives shall have the sole power of impeachment,” id. at 566, and that “The Senate of the United States shall have power to try all impeachments.” Id. at 572. So, Morris deleted these references. Second, Morris recognized that the clause about the death, absence, resignation, or inability to discharge the powers and duties of the office of the President was best dealt with separately from impeachment. Accordingly, he moved this clause to a new location, which became the Succession Clause of Article II. Finally, Morris combined the remaining language into a single, elegant sentence that took advantage of the fact that there was only one standard for impeachment, which applied to the President, the Vice President, and, indeed, all civil officers of the United States: 

The president, vice-president and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of treason, bribery, or other high crimes and misdemeanors. Id. at 600.

Why did Morris write “all civil officers of the United States” rather than “all other civil officers of the United States”? No definitive answer exists, but I'm not aware of any evidence that he did so because he believed that the President or Vice President were not officers of the United States. Two other explanations seem more plausible. First, in light of his role as Commander-in-Chief, Morris may have balked at referring to the President as a “civil” officer of the United States, a sentiment reinforced by the fact that he and everyone else at the convention knew that the first President of the United States would be George Washington. Second, as Bray suggests, Morris’s decision may have reflected an ordinary linguistic convention, according to which it sometimes is unnecessary, when listing prominent members of a class along with the class itself, to expressly reaffirm that membership. We still use this convention today in some circumstances. “The President, Provost, and all members of the faculty should report to Healy Hall by 1:00 pm for the procession” is a perfectly natural and appropriate expression to use in certain contexts, which does not entail—and does not even suggest, to those who are familiar with such matters—that the President and Provost are not faculty members.

“Officers of the United States” during Ratification and the Early Republic

Both of these explanations seem plausible, and both appear to be supported by the fact that the term “officer of the United States” was often used during Ratification and the early Republic to encompass the President and Vice President. In Federalist 44, for example, Madison arguably used the term in this broad fashion when he explained why Article VI required every state officeholder to take an oath to support the Constitution, but did not impose a similar requirement “on the officers of the United States in favor of the State constitutions.” Madison’s defense of this asymmetry was nonetheless rejected by the New York ratifying convention, which proposed an amendment to the Constitution providing “That the Senators and Representatives and all Executive and Judicial officers of the United States shall be bound by Oath or Affirmation not to infringe or violate the Constitution or Rights of the respective States.” 23 DHRC 2334. While this language tracks the Oath or Affirmation Clause and does not mention the President or Vice President expressly, it seems likely that they were among the officers to whom this new requirement was meant to apply.

The same broad usage of the term “officer of the United States” was also on display in the Virginia and North Carolina ratifying conventions. At a critical moment near the end of the Virginia convention, Edmund Randolph proposed adopting the Constitution with a “stile of ratification” that would address the many concerns that had been raised throughout the convention about the implied powers embedded in the Necessary and Proper Clause. Harkening back to Article II of the Articles of Confederation, Randolph declared that doing so could entail that every exercise of power not “expressly delegated” by the Constitution was unconstitutional:

If in the ratification we put words to this purpose,—that all authority not given, is retained by the people, and may be resumed when perverted to their oppression; and that no right can be cancelled, abridged, or restrained, by the Congress, or any officer of the United States; I say, if we do this, I conceive that, as this stile of ratification would manifest the principles on which Virginia adopted it, we should be at liberty to consider as a violation of the Constitution, every exercise of a power not expressly delegated therein. 10 DHRC 1456. 

Randolph’s reference to “any officer of the United States” in this statement clearly encompassed the President, who Patrick Henry had earlier warned “may easily become King” in a government that “squints toward monarchy,” 9 DHRC 963. Indeed, Randolph’s statement makes little sense on any other interpretation.  And this conclusion is reinforced by the fact that after making this speech, Randolph helped draft the Virginia “Form of Ratification,” which expressly included, in belt-and-suspenders fashion, the President and every other Department and Officer of the United States with constitutionally vested powers in a sweeping reserved powers stipulation, further underscoring the convention’s preoccupation with the Necessary and Proper Clause. 10 DHRC 1546. 

Turning to the North Carolina convention, at least five delegates at that convention—Richard Dobbs Spaight, William Johnston, Timothy Bloodworth, Archibald Maclaine, and James Iredell—used the phrase “officer of the United States” in such a way as to include the President when they discussed impeachment. 4 Elliot’s Debates 33-36. James Wilson did the same thing in his Law Lectures. 2 Works 862. While admittedly uncommon, other references to the President or Vice President as “officers of the United States” are fairly easy to locate throughout the founding era with the help of modern databases. In the removal debate of 1789, for example, New Jersey Representative Elias Boudinot referred to the President as “the supreme executive officer of the United States.” 4 Elliot’s Debates 361. Along the same lines, Pennsylvania Representative Samuel Sitgreaves referred to the President as “an officer of the Government” during the Blount impeachment controversy. 7 Annals of Congress 455. Several delegates to the North Carolina ratifying convention referred to the Vice President as “an Officer of the United States.” 30 DHRC 250, while Roger Sherman did something similar during the debate over the Presidential Succession Act of 1792, declaring that “The President of the Senate is an officer of the United States.” 2 Annals of Cong. 1854. Finally, the 1799 Postal Act referred to both the President and Vice President as “Officers of the United States.” See Heilpern & Worley, USC Law Review, forthcoming.

Other Americans also got into the act. For example, the June 18, 1789 New-York Daily Gazette referred to the President as “the first officer of the United States,” while the January 9, 1793 National Gazette referred to John Adams as “the second officer of the United States.” An article in the July 20, 1790 Salem Gazette proudly boasted that “every citizen has a right, directly or indirectly, to elect every officer of the State in which he lives, and every officer of the United States.” A letter to the “President of the United States” from “Nestor” in the August 12, 1794 [Philadelphia] General Advertiser referred to the President as “the first executive officer of the United States.” The November 6, 1790 New Hampshire Gazette referred to the Vice President as one of the “principal Great Officers of the United States.” Finally, in an October 18, 1796 letter to Vice President John Adams, John Brown Cutting (a prominent South Carolina businessman well-known to many of the founders) referred to Adams as a “high officer of the United States.” 

In sum, there is substantial evidence that both the President and Vice President were widely understood to be officers of the United States and were often referred to in that manner during the founding era. While not dispositive, these practices should inform how one interprets those constitutional provisions that refer to such officers.

The Impeachment of William Blount

The first time the House of Representatives used its impeachment power, it did so by impeaching North Carolina Senator William Blount, who had plotted with British officials to invade Spanish-controlled Louisiana and Florida in an elaborate scheme to promote development and land speculation in those and other southwestern territories.  In his brief, Trump attempts to use the Blount episode to his advantage by arguing that “[t]he Senate’s refusal to consider the House of Representatives’ impeachment of Senator William Blount in 1799 confirms that Senators and Representatives, like the President and Vice-President, are not ‘civil officers of the United States’ within the meaning of the Impeachment Clause.” Pet. Br., at 24, n. 27.  This statement, however, is inaccurate and misleading in several respects.

To begin with, the Senate did not “refuse to consider” Blount’s impeachment, but rather did so extensively, during a lengthy trial that lasted from December 17, 1798 to January 14, 1799.  During that time, the Senate entertained arguments about the proper scope of the impeachment power by some of the nation’s most capable lawyers, including James Bayard, Alexander Dallas, Robert Goodloe Harper, Jarrod Ingersoll, and Samuel Sitgreaves. At the end of that process, the Senate decided by a narrow and largely partisan vote (14-11) to dismiss Blount's impeachment on the ground that it “ought not to hold jurisdiction of the said impeachment.” 8 Annals of Cong. 2319. The ambiguity of this language was probably deliberate, and the leading scholar of these events, Buckner F. Melton, Jr., has persuasively argued that the Senate’s action was essentially a political decision, which did not entail a judgment that Senators were not impeachable. 

More importantly for our purposes, the best historical account of the Blount affair yields a different lesson about the original meaning of the Constitution than the one Trump encourages the Court to draw in Trump v. Anderson.  The House that voted to impeach Blount on July 7, 1797, did so unanimously.  Among its members were two men who had signed the Constitution in Philadelphia (Abraham Baldwin and Jonathan Dayton), along with twenty-three others who had served as delegates to the state ratifying conventions. In addition, the House acted pursuant to a formal opinion prepared for President John Adams by US Attorney General Charles Lee, US Attorney William Rawle, and William Lewis, a prominent member of the Supreme Court bar, which held that Blount could be impeached and tried in the Senate for his alleged crimes. Moreover, two of the cabinet officers in the Adams administration who played backstage roles in the Blount affair, Secretary of War James McHenry and Secretary of State Thomas Pickering, were also significant Founders. McHenry had helped frame the Constitution as a delegate from Maryland, while Pickering had served as a delegate to the Pennsylvania ratifying convention.  Yet there is no indication that either of them believed that Blount could not be impeached because he was not an “officer of the United States.” 

The same is true of George Washington, who kept a close eye on the Blount affair from his home in Mount Vernon. Washington received a copy of the key letter incriminating Blount several weeks before the House of Representatives was made aware of it.  He sent the letter to Pickering on July 3, 1797, expressing his desire that Blount receive “such punishment as the Constitution and Laws of our Country have provided.” (1 PGW-RS 233-24).  Washington expressed the same sentiment to McHenry four days later after McHenry told him that the evidence incriminating Blount was “to be laid before Congress” (1 PGW-RS 239).  At no point during his several weeks of correspondence with Pickering, McHenry, and other members of the Adams administration did Washington express any doubt that Blount could be impeached by the House and tried by the Senate for his “Nefarious conduct” (id.). Again, Trump would have the Court believe that Blount was not impeachable because he was an elected official, and therefore not a “civil officer of the United States” (Pet. Br., at 24, n. 27).  Washington and dozens of other men who either framed or ratified the Constitution, however, evidently did not see things that way.

Finally, it seems worth noting that the position taken by every House member in 1797, along with Washington, McHenry, Pickering, and the rest, was a mainstream view at the time.  Trump’s theory of the Constitution's impeachment provisions was not the meaning assigned to them by Edmund Randolph, Richard Henry Lee, James Wilson, Alexander Hamilton, Patrick Henry, or George Mason, all of whom indicated during Ratification that Senators were impeachable.  Randolph did so in his October 10, 1787 letter to the Virginia House of Delegates, where he listed the fact that Senators could be impeached and tried by fellow Senators as one of his primary objections to the Constitution. 8 DHRC 273.  Lee did so in an October 16 letter to Randolph, which was later published in the Petersburg Virginia Gazette. 14 DHRC 367.  Wilson did so in the Pennsylvania ratification convention when he suggested that Senators could be impeached for improper conduct in making treaties, 2 DHRC 491-92, a suggestion Hamilton reiterated and addressed in Federalist 66. Finally, Henry and Mason each did so at the Virginia ratification convention, with the former complaining that Senators “may try themselves, and if found guilty on impeachment, are only to be removed from office,” 10 DHRC 1285, and the latter amplifying the same concern: “The Senators were to try themselves. If the majority of them were guilty of the crime, would they pronounce themselves guilty?” 10 DHRC 1290.  Their audience was evidently persuaded, since one of the amendments later proposed by the Virginia convention was predicated on just this understanding: “That some tribunal other than the Senate be provided for trying impeachments of Senators.” 10 DHRC 1556.

United States ex rel. Stokes v. Kendall (1837)

This blog post is quite long, so I will refrain here from taking up the Necessary and Proper Clause, the Succession Clause, the Incompatibility Clause, and other parts of the Constitution that also bear on the original understanding of “Officers of the United States.”  Instead, I will save those topics for one or more subsequent posts.  Before drawing these remarks to a close, however, one final point might be useful. 

In their brief in Trump v. Anderson, the Anderson Respondents refer in passing to “a federal court” that declared that “the President himself . . . is but an officer of the United States,” Resp. Br., at 38, before quickly moving on to other issues. The muted treatment here seems surprising. This statement was not just made by any court, but by the only federal circuit court to survive the Jeffersonian purge of 1802: the Circuit Court of the District of Columbia. The case in which it appears was not just any case, but the landmark case of United States ex rel. Stokes v. Kendall, 26 F. Cas. 702, 752 (C.C.D.C. 1837), which established that the D.C. Circuit had the authority to issue writs of mandamus against federal officials, a power it alone exercised for the next 125 years. And the judge who made the statement was not just any judge, but the legendary William Cranch, Chief Judge of the D.C. Circuit for almost fifty years (1806-1855), whom Chief Justice John Roberts describes in this 2006 Virginia Law Review article as “one of the greatest federal judges to have ever sat in this country.” 

In his article, Chief Justice Roberts lucidly explains the significance of Kendall and how Cranch’s opinion in that case helped make the D.C. Circuit different from every other federal circuit court. He notes that Cranch was John Adams’ nephew but, understandably, he does not dwell upon that fact. For our topic, however, it seems significant. If any federal judge writing in the decades before the Civil War would have known how to properly classify the President of the United States, it was William Cranch. Nephew of one President (John Adams) and first cousin of another (John Quincy Adams), the fact that Chief Judge Cranch described the President as “an officer of the United States” in an opinion he knew would be closely scrutinized should not be lightly disregarded. Along with the other evidence outlined in this blog post, it suggests that the Justices should think long and hard before declaring that the President of the United States is not an Officer of the United States for the purposes of Section Three. The history of the Fourteenth Amendment strongly undercuts Trump’s argument on this issue (see, e.g., here, here, here, here, and here), but so, too, does the best understanding of the original Constitution.