Saturday, February 03, 2024

A User’s Guide to Trump v. Anderson, Part Four: Trump’s Argument That His Tenure as President Did Not Subject Him to Section 3 Because the President is Not an “Officer of the United States” [slightly UPDATED as of 02/05 to account for reply briefs]

Marty Lederman

In one of my previous posts, I explained why it's unlikely that a majority of the Justices will hold that the Fourteenth Amendment bars Donald Trump from holding federal office.  In this post and the next, I’ll explain why the Court should also find it difficult to conclude that Trump is eligible to serve as President.  (Posts after that will discuss the so-called “off-ramp” arguments that wouldn’t require the Court to opine on Trump’s eligibility.)
Trump offers two types of arguments about why Section 3 of the Fourteenth Amendment doesn’t disqualify him from holding office.  
First, he argues that his service as President from 2017 to 2021 did not bring him within the operation of Section 3 in the first instance because Section 3 does not expressly refer to the President and because the presidency is not an office “of the United States.” 
[UPDATED 02/05:]  Second, Trump claims that the Colorado courts erred in concluding that he “engaged in” an insurrection on January 6, 2021 by inciting or aiding it because he did not intend his followers to use violence.  (In his opening brief Trump abandoned the argument that the
violence on January 6 amounted to an "insurrection."  In his reply brief, however, he does devote one sentence to it.)

I’ll address each of Trump’s three “merits” arguments in turn—the first in this post and the other two in the next.
Section 3 of the Fourteenth Amendment provides:

No person [1] 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, [2] 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. 

I’ve marked in boldface, and labeled as [1] and [2], the two separate clauses of Section 3 that identify particular officers and other government officials.  It’s important to understand the difference between the two. 
The first clause—what John Vlahoplus helpfully refers to as the “Positions Clause”—identifies the government offices and other employments that a covered rebel or insurrectionist is prohibited from “hold[ing]."  It is, in that sense, forward-looking, describing the effect of Section 3 when the disqualification applies to a particular person.  The middle clause [2], by contrast—the “Officials Clause”—describes the precondition for someone being potentially subject to Section 3 in the first instance, namely, that the person has at some earlier point “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.”  
Both clauses use a “catch-all” term, but they differ slightly from one another in terms of their prepositions—a difference to which Trump would attach great significance.  The Positions Clause [1] employs the catch-all term “office, civil or military, under the United States,” whereas the Officials Clause [2] uses the catch-all term “officer of the United States.”  
Some amici, such as Professor Kurt Lash, have filed briefs arguing that the presidency is not a “disqualified” office covered by the Positions Clause—in other words, that Section 3 permits someone to serve as President (or Vice-President) even if they are a covered person who has engaged in insurrection or rebellion against the United States (indeed, even if they’ve “given aid or comfort” to foreign enemies of the United States).  That conclusion is based entirely on the fact that the Positions Clause refers to offices “under” the United States.  (This argument is also threaded throughout Part I of the Meese/Mukasey/Barr/Calabresi/Lawson brief.  And strangely, Part II-A of Professor Tillman’s brief devotes six pages to arguing (mistakenly) that “[i]n the Constitution of 1788, the President did not hold an ‘Office … under the United States,'” without arguing that the same is true in Section 3 of the Fourteenth Amendment—let alone that the alleged limited meaning of that phrase in 1788 is a reason for reversing the Colorado Supreme Court.)
Trump himself made this Positions Clause argument before the Colorado Supreme Court, and he even prevailed on it in the Colorado district court.  In his merits brief in the U.S. Supreme Court, however, Trump does not press the “under the United States” Positions Clause argument.  The brief states only (pp. 25-26) that “whether the phrase ‘office . . . under the United States’ includes the presidency is far from clear in the Constitution” (citing Professor Lash’s amicus brief).  There’s nothing further in the brief arguing that Section 3’s disqualification doesn’t extend to the presidency.  To the contrary, Trump’s brief goes to pains to sharply distinguish the “office under” language in the Positions Clause from the slightly different “officer of the United States” terminology in the “Officials Clause,” and tries to exploit that difference in order to argue that the latter, middle clause must describe a narrower class of offices than the former.  See Trump Br. at 26 (“occupying … an ‘office . . . under the United States’ … does not make one an ‘officer of the United States’ as that term is used in the Constitution”); id. at 30-31 (“That the drafters chose to use different terminology when describing these categories of ‘offices’ and ‘officers,’” … “shows that it is not only permissible but entirely appropriate to exclude the president as an ‘officer of the United States,’ even if one simultaneously includes the presidency as an ‘office . . . under the United States.’”).
It's easy to understand why Trump has turned away from his earlier “officer under the United States” argument.  If the argument appears to be in play after oral argument I may write more about it later.  For now, the short version is that it’s a stone-cold loser, not least because it would have absurd ramifications.  [UPDATE:  For example, it would mean that Jefferson Davis would’ve been disqualified from serving in virtually any federal or state office except the presidency and vice-presidency--something the framers of Section 3 were specifically trying to prevent.  It would also mean that the Foreign Emoluments Clause wouldn’t prohibit the President, Vice-President, and members of Congress from accepting titles, offices, gifts or emoluments from foreign states, kings and princes.  Moreover, it would mean that an official impeached and convicted of high crimes or misdemeanors, and removed from office, would be eligible to serve as President in the future.  See art. I, 3, cl. 7 ("Judgement in Cases of Impreachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States").  I think it's safe to say that everyone involved in or watching the second Trump impeachment trial assumed--with good reason--that if ten more Senators had voted to convict, trump would have been ineligible to be President again.]

For present purposes, however, the important point to understand is that Trump’s primary merits argument, to which he devotes the first 13 pages of the Argument section of his brief (pp. 20-33), concerns only the second, middle “Officials Clause,” which identifies the current and former office-holders to whom Section 3 potentially applies, rather than the government positions that an insurrectionist or rebel is ineligible to occupy going forward.  [UPDATE:  In his reply brief (pp. 13-14), Trump does appear to revive the "officer under" argument that would preclude Section 3's disqualification from applying to future service, by an insurrectionist, rebel or traitor, as President or Vice President, though the brief never comes out and says, so many words, that the Presidency and Vice Presidency aren't covered.  Time permitting, I'll try to address this argument in the coming days, particularly if it appears to have some traction at oral argument. For now, I'll add only one point:  The reply brief states that "a draft of section 3 introduced by Representative Samuel McKee explicitly listed the presidency and vice presidency as 'offices' closed to confederate rebels, yet this was rejected in favor of the enacted language, which omits any mention of the presidency and instead disqualifies individuals from serving as electors."  (Emphasis added.). Congress did not, however, "reject" McKee's proposal--indeed, as far as I know it was never debated at all, let alone affirmatively "rejected."  McKee's proposal on February 19, 1866 did not trigger any sustained consideration at all.  Months later, both Houses of Congress began to debate various versions of an omnibus Fourteenth Amendment, none of which contained a Section 3 with McKee's references to the presidency and vice presidency.  McKee's proposal simply wasn't, to my knowledge, ever the subject of Congress' consideration.]

With that distinction in hand, we can now examine Trump’s argument about the “of the United States” term in the Officials Clause.
Trump concedes, as he must (Br. at 24-25), that the President is an “officer” for purposes of the Constitution.[1]  After all, the Constitution refers to the President’s “office” or to the “Office of the President” almost two dozen times.[2]  He insists, however, that the qualifying phrase “of the United States” in Section 3 serves to exclude the President, as well as the Vice-President, Senators and House Representatives.
This claim is, of course, deeply counterintuitive, and it would be very awkward, to say the least, for the Supreme Court to explain to the American people that Section 3 doesn’t apply to someone who’s been President because although that person held an “office,” it wasn’t an office “of the United States.”  If the presidency isn’t an office of the United States, of what sovereignty is it an office?  Ohio?  France?  Moreover, the oath that Article I requires the President to take before entering that office specifically refers to it as “the Office of President of the United States,” Art. II, § 1, cl. 8; and the Executive Vesting Clause, id. § 1, cl. 1, likewise vests the executive Power in “the President of the United States of America.”
As a recent article by John Vlahoplus demonstrates (see Part IV-C, pp. 17-20), the term “officer of the United States” was very widely used and understood to refer to elected officials, including specifically the President and members of Congress, from the beginnings of the Constitution straight through to the time the Fourteenth Amendment was enacted.  (The Anderson plaintiffs canvass many of Vlahoplus’ examples at pp. 37-39 of their brief; see also pages 11-13 of the Constitutional Accountability Amicus brief.  
Amicus Michael Worley also points to the fact that in 1865, i.e., just before Congress drafted the Fourteenth Amendment, Andrew Johnson regularly referred to himself as an “officer of the United States” in his appointments of persons to offices in the former Confederate states.)  Indeed, an early statute enacted by Congress expressly referenced the President, the Vice President, and “each member of the Senate and House of Representatives” in a catalogue of “the following officers of the United States.”  Act of Mar. 2, 1799, ch. XLIII, § 17, 1 Stat. 733, 737.   

In light of this overwhelming—indeed, uncontradicted and uncontroverted—evidence that the term “officer of the United States” did not have any specialized public meaning that excluded the President from its scope, Trump does not argue that it was a well-recognized legal term of art.  (Nor does the architect of this theory, amicus Professor Seth Tillman.)  Instead, Trump argues (Brief at p.22) that whenever it appears in the Constitution, the particular term “officer of the United States” allegedly “include[s] only appointed and not elected officials,” notwithstanding that government officials, legislators, courts, newspapers, and others used that term in a more natural and capacious manner that encompassed the President.  That is true, argues Trump, with respect to the other four uses of “officer of the United States” in the 1789 Constitution, and therefore it’s fair to assume that Section 3 of the Fourteenth Amendment adopted this so-called “elected officials” exception, as well.  [UPDATE:  In case this didn't come through clearly enough:  This is NOT an "original public meaning" argument--indeed, it's urging a reading contrary to the OPM.]  

This argument is hard to square with the Court’s recent insistence that ordinary meanings of constitutional terms should be preferred to “secret or technical meanings that would not have been known to ordinary citizens in the founding generation.”  D.C. v. Heller, 554 U.S. at 577.  As Will Baude and Mike Paulsen put the point:  “[A] reading that renders the document a ‘secret Code’ loaded with hidden meanings discernible only by a select priesthood of illuminati is generally an unlikely one.”
But the problems with this argument run deeper than that.
[UPDATE:  For starters, it's a mistake to assume that the terms "officer" or "office" or "officer of the United States," etc., must have exactly the same scope wherever they appear in the Constitution, including with respect to whether they include the President, the Vice President, Senators, Representatives, and particular sorts of executive branch officials.  Such "coverage" questions historically have assessed with an eye to functional and practical considerations, taking into account the purposes of the provisions in question.  (The Department of Justice, for example, has long opined that the "officers" covered by the Foreign Emoluments Clause are not coterminous with those covered by the Appointments, Incompatibility and Ineligibility Clauses.)  Therefore there's no particular reason to believe that the term "officer of the United States" in Section 3 must have the same scope as that term in one or more of the original Articles of the Constitution.]

What's more, the President (and the Vice President and members of Congress, i.e., officials “elected”) may very well be included in the term “officers of the United States” in some or all of the four 1789 clauses on which Trump relies.  
That’s most obviously true for the Oaths Clause, art. VI, § 3, which requires “all executive and judicial officers, both of the United States and of the several states,” to be “bound by oath or affirmation, to support this Constitution.”  There’s no reason to think the President and the Vice-President aren’t “executive officers of the United States” bound by this requirement.  Indeed, it’d have been a gross oversight if the framers had neglected to require the Vice-President to take an oath (which is the implication of Trump’s position).  Not surprisingly, then, Congress considers the Vice President to be covered.  The statute implementing the Oath Clause, 5 U.S.C. § 3331, applies by its terms to any “individual, except the President, elected or appointed to an office of honor or profit in the civil service or uniformed services,” which obviously includes the VP.  Thus, when the Vice-President takes the oath of office, she swears to “well and faithfully discharge the duties of the office”—i.e., the Vice-Presidency—"on which I am about to enter,” id.[3]  To be sure, the oath statute expressly excludes the President, but that’s not because Article VI doesn’t cover him, any more than it excludes the Vice-President.  The reason for the presidential exception is that the Constitution prescribes a distinct oath that the President (though not the VP) must take—to “preserve, protect, and defend the Constitution,” art. II, § 1 cl. 8—that obviously satisfies the “support this Constitution” requirement of Article VI, and then some.  As the Anderson plaintiffs and several amici explain, it’s difficult to conjure a situation in which a President would “preserve, protect, and defend the Constitution” without “supporting” it.  Thus, as Sam Bray writes:  “The argument on page 23 of the [Trump] brief that a presidential oath to ‘preserve, protect, and defend the Constitution’ is not an oath to ‘support’ the Constitution is risible.  Try explaining it to a child.  It is an argument that should be treated with derisive scorn by everyone who encounters it.  It is the kind of magic-words literalism that is the reason people think they hate lawyers.”
The Appointments Clause, art. II, § 2, cl. 2, empowers the president to 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.”  Trump is right, of course, that this doesn’t give the President authority to “appoint” himself, the Vice-President, or members of Congress.  [UPDATE:  But that’s not because of some secret meaning of the term "officer of the United States."  Rather, it's simply because the Appointments Clause obviously isn't designed to be applicable to how Presidents, Vice Presidents, Senators and Representatives are chosen--it isn't about that.  Again, these terms don't necessary have the same exact "coverage" in all the disparate places they appear in the Constitution; there is no "one size fits all" rule that doesn't make a hash out of one clause or another.]  Moreover, with respect to the Appointments Clause in particular, it might be the case that the President, Vice President, and members of Congress fall within the Clause's exception:  Perhaps the Constitution does “otherwise provide[] for” their appointment.  The fact that they are “chosen” (see art. I, §§ 2, 3) by means of some sort of an election (of voters in a state for members of Congress or by a majority of presidential or vice-presidential electors for the POTUS and VP—and, for Senators before the Seventeenth Amendment, by state legislatures) does not necessarily mean that they are not “appointed.”  The terms “elected” and “appointed” were used somewhat interchangeably at the founding (see the Worley Amicus Brief)—indeed, it was commonly said that the President is “appointed” by the electors—and the term “chosen” in Article I (referring to Senators and Representative) appears to be synonymous with “appointed.”
The Impeachment Clause, art. II, § 4, states that “[t]he 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.”  Trump argues that the express reference to the President and Vice President, together with the fact that the clause doesn’t refer to “all other civil Officers of the United States,” must mean that that catch-all term does not encompass the POTUS and VP—otherwise, why mention them at all?[4]  As Sam Bray has noted, however, it was important for the framers to specify that the President and Vice President may be impeached in light of the background of royal prerogative power in England, and “the brief's suggestion that ‘all other civil officers’ would have to be used does not fit the legal drafting culture of the late eighteenth and nineteenth centuries.”
Finally, there’s the Commissions Clause, art. II, § 3, which requires the President to “Commission all the Officers of the United States.”  Trump is right that that requirement does not apply to the commissioning of the President himself, or the Vice President or members of Congress.  As Sam Bray (again) explains, however, that’s not a function of a specialized, secret “semantic content” of the term “Officers of the United States”; it is, instead, simply a natural exclusion, in light of the context and apparent function of the clause, which is to ensure commissions (i.e., proof of entitlement to the office—recall Marbury) for those persons appointed pursuant to the Appointments Clause in the preceding section of Article II.  Adam Unikowsky makes the see point with this useful analogy:  “If you say ‘the Chief Judge hires all people who work at the courthouse,’ this doesn’t mean that the Chief Judge doesn’t work at the courthouse.”
Trump’s reliance on the four clauses from the original Constitution is therefore misplaced, even if one assumes that the term must have the exact same scope wherever it appears in the Constitution (which, as noted above, is not a well-taken assumption).  
Yet there’s still another, more fundamental problem with Trump’s reading of Section 3--namely, that it  can’t possibly reflect the intent or design of any proponents of the Amendment in Congress or the ratifiers in the states.  As far as I know, none of the parties or the amici have yet uncovered any evidence that Congress (or the ratifying states) considered the specific question that the Trump argument raises—namely, whether the term “of the United States” would exclude some or all Presidents and Vice Presidents from the Section 3 disqualification.  No doubt that’s because everyone assumed that of course Section 3 would cover a chief executive who betrayed his oath and the Nation.  Why wouldn’t it?  If the framers of the Fourteenth Amendment—those who drafted, approved and ratified it—had thought for a second that the phrase “officer of the United States” excluded the President and the Vice President, of course they wouldn’t have used that terminology, because there’d be no reason at all for them to allow those officers, and they alone, to hold office after violating their oaths by engaging in insurrection, rebelling against the United States, or providing aid and comfort to the United States’ foreign enemies.  As John Vlahoplus writes (citing Scalia and Garner):  “To allow Presidents but not their appointed subordinates to again take an oath that they have violated would contravene the Presumption Against Ineffectiveness:  ‘A textually permissible interpretation that furthers rather than obstructs the document’s purpose should be favored.'”  If “an insurrectionist President is not covered by Section Three’s disqualification (though nearly every other federal or state officeholder is),” add Will Baude and Mike Paulsen, that would be “facially implausible” and “make[] little sense.”
And the Trump reading becomes, if anything, even more senseless, and more implausible, when one considers the universe of persons whom it would exclude from Section 3’s operation—a universe consisting of exactly one lucky former President.  

To see why that’s the case, it’s important to understand that although Section 3 is generally understood as a provision designed to exclude from public service officials who betray their oath of loyalty to the United States, its framers deliberately extended its coverage beyond the tenure of the oath itself so that it would apply to covered officers indefinitely, even after they leave office and their oath itself therefore no longer binds them.  In the Senate debate on May 30, 1866, Democratic Senator Thomas Hendricks proposed that Section 3 be amended to apply to an officer’s disloyal conduct (insurrection, rebellion, or giving aid or comfort to U.S. enemies) only “during the term of his office,” such that its effect would be coterminous with the operation of the officer’s oath itself.  Cong. Globe, 39th Cong., 1st Sess. 2897-98.  Senator Jacob Howard of Michigan immediately rose to oppose the amendment.  He argued that engaging in the disloyal conduct after the expiration of one’s term in office would be a form of “moral perjury” that warranted future disqualification, even if were not a breach of the oath itself.  Id. at 2898.  Senator John Sherman of Ohio also inveighed against the Hendricks amendment because it would exclude, for example, Army and Naval officers who had resigned from their offices and then “proceeded to the South and organized rebellion against the Government of the United States,” as well as Senators who had resigned, waited until the date their original “term of office” ended, and thereafter took up arms against the Union.  Id. at 2899.  Such persons, Sherman explained, should not be relieved of the operation of Section 3 because, even though they hadn’t violated the “letter” of their oath, they violated “the spirit of the oath.”  Id.  Sherman and Howard carried the day:  The Senate overwhelmingly rejected Hendricks’ amendment by a vote of 34-8.  Id.  Accordingly, Section 3 by its terms applies to anyone engaging in the proscribed conduct if they have “previously taken an oath” in order to hold one of the covered positions—that is to say, its application is thereafter perpetual and does not depend upon whether the person remains in the covered office when he or she engages in the disloyal conduct.

Therefore, even if the phrase “officer of the United States” did not of its own accord cover a President or a Vice President—i.e., even under Trump’s proposed reading—Section 3 would not leave any inexplicable and inadvertent “gaps” because every single person who’s served as President or Vice-President since Congress first prescribed the “officer’s oath” in 1789 did so only after they had served in another, Section-3 covered federal or state office for which they took an oath to “support the Constitution of the United States,” thereby triggering the application of Section 3 as to them in perpetuity.  

Every individual but one, that is.  As far as I know, Donald Trump is the only person ever to serve as President or Vice-President who hasn’t previously served in a federal or state office for which he or she took an oath to “support the Constitution of the United States.”  Therefore the upshot of Trump’s reading of Section 3 would be that Donald Trump himself is a unique, unanticipated and inadvertent exception to the rule—the only federal or state officer since 1868 who has not been subject to Section 3 and who may therefore once again hold federal office after rebelling against the United States, engaging in an insurrection, or even aiding U.S. foreign enemies.  [UPDATE:  In his reply brief (p.12), Trump agrees that if the Court accepts his reading of "officer of the United States," the only President to be affected would be Donald Trump.]

I think it’s fair to wager that the Court will, as it should, refuse to accept this “inadvertent loophole for a category of one” reading of Section 3.

* * * *

Before leaving this topic and moving on to Trump’s arguments that he did not “engage in” an insurrection (the subject of my next post), I’ll address two other components of Trump’s argument about the Officers Clause—one that’s based on a handful of statements in Supreme Court opinions, and the other that’s based upon an expressio unius rationale.

Supreme Court Statements

Trump argues (pp. 22-23 of his brief) that his reading of the term “officers of the United States” is confirmed by statements by the Supreme Court in 1888 and 2010.  Professor Jim Lindgren’s amicus brief is more emphatic:  It argues that a statement in one of those 1888 cases, United States v. Smith, 124 U.S. 525 (1888), is “dispositive” and “sufficient to reverse the judgment of the Supreme Court of Colorado.”  Surprisingly, the Anderson plaintiffs do not even mention these cases in their brief.  Nor, with one exception (David Boyle--see below), do the more than 40 amici filing in support of the plaintiffs or for neither party.  That’s a mistake of judgment, because the Supreme Court won’t simply disregard what it has said in the past about the term “officer of the United States.”  

So let's examine the cases, starting with the 1888 cases.  Trump and Lindgren cite three of them, all decided in brief opinions in a two-week span.

The first two decisions were United States v. Mouat, 124 U.S. 303 (1888), and United States v. Hendee, 124 U.S. 309 (1888), both issued on January 23, 1888.  Those cases involved a statute that prescribed different travel expense rules for naval “officers,” on the one hand, and all other persons “holding employment or appointment” in the Navy, on the other.  In defining who was an “officer” for purposes of this law, the Court looked to the distinction under the Appointments Clause between officers (who must be appointed using one of the methods the Clause prescribes) and employees, who aren’t subject to the Appointments Clause requirements.  (The Court’s most recent treatment of this distinction appears in Lucia v. SEC, 138 S. Ct. 2044 (2018).)  See Mouat, 124 U.S. at 307.  The Court decided that Mouat, a paymaster’s clerk, was an employee, whereas Hendee, a former paymaster’s clerk, had become an officer when he became a paymaster, 124 U.S. at 313.

In the course of deciding these cases, the Court wrote in Mouat, with reference to the Appointments Clause, that “[u]nless a person in the service of the Government … holds his place by virtue of an appointment by the President, or of one of the courts of justice or heads of Departments authorized by law to make such an appointment, he is not, strictly speaking, an officer of the United States.” 

This statement got things a bit backward as a matter of constitutional law.  Pursuant to the Appointments Clause, if a person is an officer whose appointment the Constitution doesn’t otherwise provide for—a question that depends on the two-part analysis described in Lucia—he or she must be appointed in one of the manners described in the Clause, whereas employees can be chosen in other ways, by actors short of a Department Head.  In other words, it’s not that the appointment makes one an “officer” but instead that “officer” status requires a certain mode of appointment.

That said, what the Court in Mouat was plainly getting at was the officer/employee distinction for purposes of the Appointments Clause (which it then assumed Congress had intended to reflect in the travel-compensation statutes).  The case didn’t raise the question of whether someone chosen for a federal position in another way—say, by popular election, the counting of electoral votes, or designation by a state legislature—is an “officer of the United States” for purposes of any other clause in the Constitution, and the Court’s “strictly speaking” statement obviously was not intended to address that question, let alone to resolve it once and for all for purposes of all constitutional clauses in which that term appears.

Oh, and it’s worth adding that, just a few months ago, none other than Donald Trump filed a brief, in the U.S. District Court for the Southern District of New York, in which he agreed with this much more modest reading of Mouat.  There, his lawyers wrote:  “Mouat addressed not whether the President (or members of Congress) are ever ‘officers of the United States,’ but when a government official is, in the modern parlance, a mere employee.”  Just so.  (Props to amicus David Boyle for flagging the Trump brief in New York.)

Two weeks after Mouat and Hendee, the Court decided United States v. Smith, 124 U.S. 525 (1888).  The case was an appeal by a clerk in an office of the Collector of Customs from a criminal conviction for “embezzlement” that applied to the Collectors of Customs themselves and, inter alia, to “all public officers of whatsoever character” who were required to safely handle public money.  The Court again assumed that the statute’s reference to “officers” was intended to track the “officers” whose appointment is governed by the Appointments Clause.  Justice Field wrote the following for the Court, id. at 532:

An officer of the United States can only be appointed by the President, by and with the advice and consent of the Senate, or by a court of law, or the head of a department.  A person in the service of the government who does not derive his position from one of these sources is not an officer of the United States in the sense of the Constitution.  This subject was considered and determined in United States v. Germaine, 99 U. S. 508, and in the recent case of United States v. Mouat.  What we have here said is but a repetition of what was there authoritatively declared.

Once again, the Court was obviously invoking the officer/employee distinction that was the subject of both Germaine and Mouat, which turns not on whether someone was appointed in one of the manners described in the Appointments Clause but instead on whether that Clause requires one of those forms of appointment for a position with particular sorts of duties.  The second sentence of that block quotation, on which Trump now relies, was not intended to be declaring a universal characteristic of an “officer” for purposes of every constitutional reference to “officer of the United States,” which would have been a momentous holding with numerous implications … articulated in a case involving construction of a statute.

Finally, Trump relies upon a similar rhetorical formulation in a much more recent case, Free Enterprise Fund v. Public Company Accounting Oversight Board, 561 U.S. 477 (2010).  In the course of his opinion for the Court in that case, Chief Justice Roberts explained why the President must have a certain degree of control over whether and when officers should be removed.  That discussion included the following passage, id. at 497-98:

The diffusion of power carries with it a diffusion of accountability.  The people do not vote for the “Officers of the United States.”  Art. II, § 2, cl. 2.  They instead look to the President to guide the “assistants or deputies … subject to his superintendence.”  The Federalist No. 72, p. 487 (J. Cooke ed. 1961) (A. Hamilton).  Without a clear and effective chain of command, the public cannot “determine on whom the blame or the punishment of a pernicious measure, or series of pernicious measures ought really to fall.”  Id., No. 70, at 476 (same). 

Trump seizes on the second sentence, which I’ve highlighted in boldface.  In that sentence, however, the Chief Justice was quoting the Appointments Clause merely as a way of indicating how officers who are subject to that clause—the sorts of officers at issue in Free Enterprise Fund, see id. at 510 (“[The] Board members are inferior officers whose appointment Congress may permissibly vest in a ‘Hea[d] of Departmen[t].’”)—are chosen, and to make the point that the electorate is not involved in their selection.  It is plain as day that he was not intending to suggest (let alone to hold) anything one way or the other about whether the President, Vice President, Senators and Representatives are “officers of the United States” for purposes of any constitutional provisions, let alone Section 3 of the Fourteenth Amendment.

Several months ago, Donald Trump himself correctly offered the same view of Free Enterprise Fund, in his brief to the U.S. District Court for the Southern District of New York:

Upon review of the language and context, however, it is clear that the Supreme Court [in Free Enterprise Fund]was not deciding that meaning of “officer of the United States” as used in every clause in the Constitution, let alone in every statute in the United States Code.  Rather, the Court was simply describing the meaning of “other officers of the United States” as used in U.S. Const. art. II, § 2, cl. 2.  There, the Constitution addresses the President’s “power” to “appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States[.]”  Obviously, the President cannot appoint himself, see art. II, § 1 (providing for the election of the President), or members of Congress, see art. I, § 4 (providing for the election of members of Congress), and so, “other officers of the United States” as used in art. II, § 2, cl. 2, must be a reference to non-elected officials.  Thus, contrary to [the District Attorney’s] misleading suggestion, this stray line in Free Enterprise Fund says nothing about the meaning of “officer of the United States” in other contexts.

That’s exactly right.

Expressio Unius

At the very end of Part I of his Argument section (pp. 32-33), Trump’s counsel includes this somewhat confusing paragraph:

When section 3 lists the officials and positions to which it applies, it does not mention the president or the presidency at any point.  It also lists the covered officials and positions in descending order, beginning with the highest federal officials and positions and ending with catch-all phrases such as “executive or judicial officer of any State” and “any office, civil or military, under the United States, or under any State.”  To accept the Colorado Supreme Court’s assertion that section 3 includes the presidency, one must conclude that the drafters decided to bury the most visible and prominent national office in a catch-all term that includes low-ranking military officers, while choosing to explicitly mention presidential electors.  This reading defies common sense.  Congress “does not, one might say, hide elephants in mouseholes.”  Neither did those who drafted and ratified the Fourteenth Amendment.

Although this paragraph refers in passing to “covered officials,” it doesn’t appear to be arguing anything about the middle, “Officials Clause” of Section 3 at all, but instead to be focused upon the first, Positions Clause of Section 3 (“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, …”).  Note, in particular, the reference to whether “section 3 includes the presidency” (as opposed to “the President”), and the example of the “explicit[] mention [of] presidential electors.”  

Assuming that this paragraph is, indeed, about the Positions Clause, its inclusion in the brief is somewhat inexplicable, because it’s the capstone to an Argument section of the brief that concerns the Officials Clause, the heading of which is “The President is Not an ‘Officer of the United States.’”  Indeed, as I note above, Trump appears to have abandoned any “Positions Clause” argument, and his brief goes to pains to argue that the difference in prepositions between the two clauses counsels in favor of including the President in the first but not the second.  Therefore the inclusion of this paragraph here doesn’t appear to support Trump’s argument about the Officials Clause.  

Trump’s reply brief on Monday might clarify whether this argument is an effort to revive the Position Clause claim or is, instead, designed to bolster the Officials Clause argument that his opening brief leads with.  I’ll circle back to amend this post if and when it’s easier to understand the point Trump is trying to make.

For now, I’ll offer a word or two about the relevance of the “list” of specified officers to Trump’s argument regarding the catch-all “officers of the United States” term in the Officials Clause.  Recall that that Clause refers to anyone “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.”  The Clause contains only one specific reference before the catch-all term—namely, to “a member of Congress.”  Perhaps Trump means to be arguing that that reference to a “member of Congress” supports his assertion that “officer of the United States” doesn’t include elected officials … in which case the President would be omitted. 

The Anderson plaintiffs actually contend (pp. 42-43) that Senators and Representatives are not officers at all!  If that were correct, it’d explain why the framers included a specific reference to “a member of Congress.”   But it’s not correct.  As Amicus Kurt Lash points out (Br. at 15 & n.23), it was common at the time of the Fourteenth Amendment to refer to Senators and Representatives as holding an “office.”  [UPDATE:  And that's reflected in the statute governing succession to the presidency:  From as early as 1792, Congress and the President have included the President pro tempore of the Senate and the Speaker of the House in the line of succession, reflecting the long-established view of the political branches that such legislators are "officers" for purposes of the Succession Clause, art. II, § 1, cl. 6.]  Therefore the Court should be very wary of the plaintiffs’ invitation to hold that Senators and Representatives categorically aren’t “officers,” if for no other reason than that such a declaration could have unintended implications for other constitutional provisions.  For example, in addition to the problem it would introduce for the line-of-succession statute, such a holding would appear to exempt Senators and Representatives from the restrictions of the Foreign Emoluments Clause, art. I, § 9, cl. 8.  It might also exempt Senators and Representatives from the prospect of impeachment and removal from their positions, see art. II, § 4, and could further mean that any officials convicted by the Senate of impeachable offenses would not be barred from future service as a Senator or Representative in the House, see art. I, § 3, cl.7.  The Court should avoid opining in a way that might lead to such counterintuitive and unlikely results.

There are, however, at least two other reasons why the drafters of Section 3 might have included the specific reference to “a member of Congress” without a parallel reference to the President and the Vice President, even assuming that Senators and Representatives are “officers.”  First, as Trump himself notes (Brief p.29), nonvoting delegates (e.g., Eleanor Holmes Norton) and resident commissioners in the House are “members” without being “Senators” or “Representatives,” and there were nine such nonvoting delegates from territories in the House that approved the Fourteenth Amendment.  The framers might have wanted to ensure that they were subject to Section 3.  Second, whether or not I'm right that Senators and Representatives should be deemed "officers" for at least some constitutional purposes, there's no doubt that there was an ongoing debate and uncertainty at the time—as there remains to this day—about whether Senators and Representatives are “officers” for purposes of various constitutional provisions, including the Impeachment Clause.  [UPDATE:  For example, the offices of Senator and Representative themselves obviously aren't covered "civil offices" in the Incompatibility Clause, Art. 1, § 6, cl. 2, which provides that "[n]o Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased."]  The framers of the Fourteenth Amendment might have simply wanted to ensure that Senators and Representatives would be subject to Section 3 regardless of whether they are deemed to be “officers” for purposes of other constitutional provisions.

In light of those possibilities—along with the possibility that the drafters of Section 3 simply weren’t parsing these similar terms as finely as Trump and his amici assume—there’s no significance to the fact that Section 3 refers expressly to “a member of Congress” but not to the President and the Vice President.

* * * *

Complete series of my posts on Trump v. Anderson:

[1] At page 23 of his brief, Trump cites an overbroad dictum in a 1974 OLC memo that “when the word ‘officer’ is used in the Constitution, it invariably refers to someone other than the President or Vice President.”  That is obviously incorrect, or at least overstated, as Trump himself concedes.  See also 33 Op. O.L.C. 370, 374 (2009) (“The President surely ‘hold[s] an[] Office of Profit or Trust’” and is therefore subject to the constraints of the Foreign Emoluments Clause.)
[2] See E.g, art. I, 
§ 1, cl. 1 (“He shall hold his Office during the Term of four Years.”); id. cl. 5 (“No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.”); id. cl. 6 (“In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, …”); id. cl. 8 (“Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:—"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, … .”); id. § 4 (“The President … shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”); Amend. XII (“no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States”); Amend. XXII, § 1 (“No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term of which some other person was elected President shall be elected to the office of the President more than once.  But this Article shall not apply to any person holding the office of Presidentwhen this Article was proposed by the Congress, and shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this Article becomes operative from holding the office of President or acting as President during the remainder of such term.”); Amend. XXV, § 1 (“In case of the removal of the President from office … the Vice President shall become President.); id. § 3 (“Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, ….”); id. § 4 (“Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.”) id. (“Thereafter, when the President transmits to the President  pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his officeunless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. …. If the Congress, … determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.”).

[3] The very first statute implementing the Oaths Clause, which Congress enacted on June 1, 1789, expressly covered the Vice-President.  See An Act to regulate the Time and Manner of administering certain Oaths, § 1, 1 Stat. 23, 23 (1789) (“The said oath or affirmation shall be administered within three days after the passing of this act, by any one member of the Senate, to the President of the Senate.”).

[4] Trump also mentions, in a footnote (p.24 n.27), that the Senate’s refusal to assert jurisdiction to try the House of Representatives’ articles of impeachment against former 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,” citing Story’s Commentaries, in which Story speculated that the Senate’s action in the Blount case was “probably” based upon the view that members of Congress are not “civil officers” at all.  Professor Lash presses the same point based upon the Blount case at much greater length (see pp. 8-14 of his amicus brief).  The fate of Blount’s impeachment, however, “confirms” nothing of the sort.  For one thing, the President, the House and at least eleven of the 25 voting Senators thought that Blount was subject to impeachment.  Moreover, even with respect to the other 14 Senators who voted to dismiss the case, see 8 Annals of Cong. 2319 (1799), there’s no basis for believing that at least three of them did not agree with the House and the President.  There were at least four different arguments for dismissal in play that might have persuaded those 14 Senators, see Buckner F. Melton, Jr., Let Me Be Blunt:  The Senate Never Said that Senators Aren’t Impeachable, 33 Quinnipiac L. Rev. 33, 37-41 (2014), and therefore the assumption that the Senate decided that members of Congress aren’t impeachable “is simply flat-out wrong,” id. at 35.  Professor Currie agreed.  42 Amer. J. of Legal Hist. 427, 428 (1998).  And, notably, so has Professor Tillman.  See 33 Quinnipiac L. Rev. 59, 108 n.123 (2014); see also id. at 76 n.52.  Most importantly, perhaps, just several weeks after Congress approved the Fourteenth Amendment in 1866, an important House Report rejected Trump’s view of the Blount case, concluding that Story’s remark was “obviously an incautious one, and not fully authorized by what occurred in that case.”  Cong. Globe, 39th Cong., 1st Sess. 3940 (July 19, 1866).  That Report concluded that members of Congress are “civil officers of the United States.”  See also Mark Graber’s recent post here.  The Court should thus be very careful not to opine to the contrary in this case.

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