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Tuesday, December 21, 2021

Section 3 and the Presidency

We are approaching the first anniversary of January 6th. One issue that may eventually be litigated is whether Section Three of the Fourteenth Amendment applies to former President Trump. On that point, I want to present some new research that is part of a fun conversation I've been having with Josh Blackman and Seth Tillman. This post is longer than usual, so I will put some of it below the fold.

In my article on Section 3, I briefly examined whether that provision applies to the presidency. Of course, I had no idea (in December 2020) that this question might become important. What I said then was the following: (1) the only time the issue was raised during the debate on Section Three in Congress, the answer given by Senator Justin Morrill was that Section 3 applied to the presidency; (2) when Section 3 was discussed in Congress or on the campaign trail in 1866, the prohibition was always described in general terms and never with a presidential exception. Indeed, John Bingham at one point said that Section 3 applied to any "position, either in the National or State Government;" (3) people in 1866 would probably have been perplexed if Jefferson Davis or Robert E. Lee could be elected President but could no hold no other office under the constitutional proposal.

Josh and Seth published a paper in which they raise doubts about whether Section 3 applies to a person who only swore an oath as President (which describes Donald Trump). Here's an oversimplified summary of their view: (1) the jurisdictional element of Section 3, which specifies which oath-takers are potentially subject to disqualification, does not specifically mention the presidency; (2) the understanding of "officer of the United States" under the 1787 Constitution and ante-bellum law was that the presidency was not included and only appointed officials were included; (3) the countervailing evidence in my paper is not enough to overcome the presumption that the original meaning applies to Section Three. In particular, they note that the Framers of the Fourteenth Amendment could have thought that there was no chance that any ex-Confederate who took an oath only as President could be subject to disqualification because there was no such person in 1866.

These are fair points. For purposes of this post, I'm going to assume that their reading of the 1787 Constitution is correct and focus only on what people thought during Reconstruction. I went back and did some additional research. The bottom line, as I will explain after the fold, is that there were many references to the President as an "officer of the United States" during Reconstruction in a way that there was not prior to 1865. Thus, I think reading Section 3 as applying to the presidency is well founded.

In 1865, President Andrew Johnson issued a series of proclamations establishing temporary governments in the South. In these statements, Johnson invoked his authority as "the chief civil executive officer of the United States" to justify his actions. You can find this phrase in his proclamations involving North Carolina, Mississippi, Georgia, Texas, Alabama, South Carolina, and Florida.  Johnson was the first president (and perhaps the first person) to describe his office in this way. Why did he do that? Because he was trying to shore up his shaky authority to set up new governments on his own in the South. He also cited textual provisions such as the Take Care Clause and the Commander-in-Chief Clause as well, but evidently he did not think that those were sufficient.

Senator Howard complained (in the 39th Congress) that Johnson's phrase did not appear in the Constitution or in any statute, but many people started using identical or nearly identical language. (The Proclamations themselves were widely reprinted in newspapers). Here are some examples:

  1. John Bingham described President Lincoln as "the executive officer of the United States" during his closing summation in the trial of the Lincoln conspirators in the summer of 1865.
  2. Congressman Benjamin Butler told voters on the campaign trail in 1866 that the President speaks as "the chief executive officer of the United States." (You can find this in the Chicago Tribune.)
  3. When Mississippi filed a petition in the Supreme Court challenging Military Reconstruction in 1867, the lawyers described Johnson as "the chief executive officer of the United States." (Mississippi v. Johnson).
  4. Senator Benjamin Wade described Johnson as "the executive officer of the United States" in a Senate speech in 1867. 
  5. Bingham described the presidency as "the executive officer of the United States" in a House speech in 1868.
  6. One of Johnson's attorneys during the impeachment trial described his client as "the executive officer of the United States" during the Senate proceedings.
  7. Some other members of Congress quoted Johnson's proclamations and the phrase "chief civil executive officer of the United States" without comment. 

Finally, President's Johnson's Proclamations were the law operating in several Southern states when the Fourteenth Amendment was proposed. It's not surprising, then, that Senator Morrill thought that Section 3 applied to the presidency.

Anyway, this does not exhaust the argument about Section 3 and the presidency, as I'll explain in a subsequent post. But I do think that this shows that whatever "officer of the United States" meant in 1787 or even in 1864, the term meant something different in 1866-1868 and included the presidency.

 

Posted by Gerard Magliocca on December 21, 2021 at 10:58 AM | Permalink

Comments

Let's be real, I feel that Donald Trump is attempting to get more business in the United States despite the fact that the pandemic was hit during his residency and was tackle what is going on valiantly. I'm not his ally but rather I believed that a few sorts of positions he was done splendidly.

Posted by: Jack Olier | Jul 19, 2022 2:14:39 PM

I don't know about the form of article and law but I think that Donald Trump is working to get more business in the United States even though the pandemic was hit during his tenure and was tackle this situation very bravely. I am not his supporter but I thought that some kinds of jobs he was done brilliantly.

Posted by: Christian Less | Dec 29, 2021 6:50:56 AM

Hi Gerard -

Merry Christmas to you! I’ve just stumbled across your excellent New York Times article and this blog, and would love to connect with you and get your advice on (1) Who do you think is the best 14th Amendment lawyer; to (2) file a class action lawsuit on behalf of “We The People” vs. Donald J Trump; under (3) the 14th Amendment Section 3; in order to (4) disqualify him from re-seeking or holding the office of President of the United States?

I believe a small angel investment could spark an excellent case that takes this argument all the way to the Supreme Court, generating lots of media attention and debate along the way. Let’s move this out of the realm of academic theory and into action.

Cheers
Jason Palmer

[email protected]

Posted by: Jason Palmer | Dec 25, 2021 9:51:40 AM

It might be "fun" but the debate over the "officer" business is to me fairly asinine. At most, it might be possible to apply the text that way.

As shown, even looking at the original history, there was a lot of understanding that it applied to presidents. That is the logical application of the text. And, as with the emoluments matter, pinpricking originalism is not a good way to apply the text.

"as much as whether you can actually make a case that he's guilty"

That would be a "yes," as seen by the impeachment, which a majority of both houses voted for, if not the supermajority required for a conviction. A major reason the Republicans who didn't vote for conviction gave was procedural. The lead Republican, Mitch McConnell, said he was factually guilty, and still liable in other ways.

There was a lot of evidence that Trump particularly was guilty.

So, the "can actually" works out. There is no "pretext." Brett, as he did elsewhere, is a strong Trump supporter (even if he rather him not do certain things) who simply rejected common sense on the overall matter of what wrongs Trump did over the years.

"considerable portion of Congress"

I realize that might be sentiment of a minority of people who think Trump himself specifically guilty here, but simply voting to reject electoral votes or something is probably not enough for the 14A, sec. 3 test.

It is quite possible a small subject of members of Congress were so actively involved to be liable. We already have seen that involvement in the insurrection included former military or local officials who swore an oath to uphold the Constitution. They too would be liable.

The bill that the professor flagged in the past should be passed to help set forth a clear process here, including if Trump ever is challenged. Maybe, sanity will reign, and he won't run. One can dream.

Posted by: Joe | Dec 23, 2021 9:29:47 PM

The key issue here is not so much whether Section 3 applies to the President, (As a policy matter I'd prefer he be subject to it, but there are good arguments on both sides, and I couldn't really complain that a decision he wasn't was improper.) as much as whether you can actually make a case that he's guilty. That wouldn't, I mean, sweep in a considerable portion of Congress after the last two year's riots. Unless there's some smoking gun phone call nobody has released, I don't see the case.


I believe the actual aim here isn't to actually convict and disqualify Trump, so much as it is to just create a pretext on which he can be kept off the ballot in one or more key states.

Posted by: Brett Bellmore | Dec 23, 2021 7:43:09 PM

Just clarification to the citation of Justice Thomas:

"He" refers to Chief Justice Marshall, in the trial of Aaron Burr (the vice president at the time).

Thanks

Posted by: El Roam | Dec 21, 2021 4:15:06 PM

Just quoting Justice Thomas in Trump v. Vance:

" He distinguished the President from the British monarch, who did have immunity, calling it an “essentia[l] . . . difference” in our system that the President “is elected from the mass of the people, and, on the expiration of the time for which he is elected, returns to the mass of the people again.” Thus, the President was more like a state governor or a member of the British cabinet than a king."

Here:

https://www.supremecourt.gov/opinions/19pdf/19-635_o7jq.pdf

Thanks

Posted by: El Roam | Dec 21, 2021 3:21:02 PM

Interesting.

One way to look at it, is the following:

When dealing with impeachment, the president, is explicitly mentioned, all along, with other officers of the US. I mean, the word: "president" actually mentioned.

So, if not mentioned, it doesn't simply include him one may argue. I quote, Section 4, article II:

"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."

So, the president as such alone, and civil officers as such, alone.

By the way, the constitution states clearly, in Article II, section 1, in relevant part:

"The executive Power shall be vested in a President of the United States of America...."

Not even branch, but the president himself. So, he is not even the chief executive, but rather, sort of monarch (hybrid). If he is not the latter, it is among others, because he doesn't have absolute immunity, and can be impeached simply.

Thanks

Posted by: El Roam | Dec 21, 2021 12:09:38 PM

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