Trump v. Anderson: Amici Curiae Briefs

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Part 1 of 5

Evidence that the President is an “Officer of the United States” for Purposes of Section 3 of the Fourteenth Amendment
by James A. Heilpern1 & Michael T. Worley2
January 1, 2024

1 Senior Fellow at BYU Law School. The authors would like to thank Daniel Ortner, Sarah Jenkins Dewey, Christian Sanchez Leon, Alex Worley, and Samuel Clemence for their editorial help, as well as Kindra Heilpern and Robert Forsberg for facilitating access to important research materials. The authors would also like to thank Josh Blackman, Seth Tillman, and Will Baude for comments on previous drafts of this article.
2 Attorney, Provo, UT. The work of this paper should not be attributed for good or ill to my employer or any other entity. These entities had nothing to do with this paper, which was written off the clock.

CONTENTS

INTRODUCTION……………………………………………………………………….3  
I. Summary of Past Scholarship and its use in the Colorado proceedings ................... 6  
A. Summary of the Blackman-Tilman Interpretation .................................................. 6  
B. Reliance by Lower Colorado Court ..................................................................... 10  
C. Rejection by Colorado Supreme Court ............................................................... 11  
D. The Colorado GOP’s Petition for Certiorari ......................................................... 12  
II. The Phrase “Officer of the United States” included the President at the time of the Founding ......................................................................................................................... 13  
A. Corpus Linguistics Evidence Supports that the President is an Officer of the United States. .............................................................................................................. 13
B. At the time of the Founding, “appoint” and “elect” were used interchangeably ... 17  
1. Text of the Constitution ................................................................................... 19  
2. Early State Constitutions ................................................................................. 20  
3. Articles of Confederation ................................................................................. 21  
4. Addresses to and from George Washington ................................................... 23  
C. The Text of the Constitution Identifies the Presidency as an Office .................... 26  
D. Additional context about the original meaning of “officer of the United States” in the 1789 Constitution. ................................................................................................. 27  
1. Appointments Clause ...................................................................................... 27  
2. Impeachment Clause ...................................................................................... 31  
3. The Presidential Oath and the Article VI Oath ................................................ 33  
4. Commission Clause ........................................................................................ 35  
III. A Primer on Linguistic Drift ...................................................................................... 37
IV. Evidence that Officers (Including Officers of the United States) May Be Elected .... 39  
A. Evidence from the text of the Fourteenth Amendment ........................................ 39
B. Evidence from the Legislative History of the Fourteenth Amendment ................ 41
C. Evidence from the Ratification Debates of the Fourteenth Amendment in the States .......................................................................................................................... 45
D. Evidence from Legislative History of the Fifteenth Amendment .......................... 47
E. Evidence from Popular Sources that Officers are Elected. ................................. 48
V. Evidence that the President is an officer of the United States for purposes of the Fourteenth Amendment .................................................................................................. 53
A. Evidence from the Legislative History of the Fourteenth Amendment ................ 53
B. Evidence from the Impeachment Trial of Andrew Johnson ................................. 55
C. Evidence from President Andrew Johnson’s Appointment Proclamations .......... 59
D. Evidence from the Amnesty Proclamations of Presidents Lincoln and Johnson 60
E. Evidence from Other Contemporary Sources ..................................................... 63
VI. Hartwell and Mouat revisited ................................................................................... 69
A. United States v. Hartwell Supports Our Conclusion that the President is an Officer of the United States. ........................................................................................ 69
B. United States v. Mouat’s test misconstrues the Appointment Clause by ignoring the modifying clause .................................................................................................... 70
CONCLUSION ………………………………………………………………………………... 72
APPENDIX A ……………………………………………………………………………….…. 73
APPENDIX B ……………………………………………………………………………….…. 79
APPENDIX C …………………………………………………………………………………. 84

INTRODUCTION

In 1868, three years after the conclusion of the Civil War and the assassination of Abraham Lincoln, the 14th Amendment was ratified and became part of the United States Constitution. The Amendment officially overturned the notorious Dred Scott decision and was designed to grant citizenship and ensure equal protection under the law for recently freed slaves. But Section 3 of the Amendment also contained a provision that limited the ability of a small class of a former Confederates—those that had previously taken oaths to support the U.S. Constitution—from holding public office in the future:

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, 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.

Six months ago, William Baude and Michael Stokes Paulsen made headlines by publishing an article on SSRN, The Sweep and Force of Section Three,3 [William Baude & Michael Stokes Paulsen, The Sweep and Force of Section Three, 172 U. Pa. L. Rev. (forthcoming 2024) (manuscript at 118-22), https://ssrn.com/abstract=4532751. Our primary focus for this article is answering whether the President is an “officer of the United States.” We do not purport to cite every piece addressing the meaning of Section 3, nor do we purport to address every topic relating to Section 3. Specifically, it appears to us that enforcement of Section 3 was lax, and we do not view this fact as probative of the original meaning of the text. For additional reading on these topics related to Section 3, the reader is directed to Baude and Paulsen’s article. For an alternative view, see Kurt T. Lash, The Meaning and Ambiguity of Section Three of the Fourteenth Amendment 42 (Oct. 3, 2023) (unpublished manuscript), https://ssrn.com/abstract=4591838; but see id. at 2-3 n.5 (declining to discuss whether the President is an “officer of the United States” under Section 3).] in which they argued that Donald Trump’s actions on January 6, 2021 qualified as an insurrection and that Section 3 therefore disqualified him from being elected President again. At the time, Trump was (and remains) the front runner for the Republican nomination for President in 2024. Baude and Paulsen’s paper inspired lawsuits in 21 states, seeking to remove President Trump from the upcoming primary ballots.

Most of the media attention has focused on whether Trump actually “engaged in insurrection.” This paper focuses on a far less titillating question. In order for Section 3 to apply to Donald Trump, he must have been an “officer of the United States” prior to committing the alleged insurrection. Baude and Paulsen argue that, as President of the United States, Trump was an officer of the United States.4 [Id. at 109; U.S. CONST. amend. XIV, § 3.] In making that argument, Baude and Paulsen disagreed with an earlier piece by Josh Blackman and Seth Tillman, Is the President an “Officer of the United States” for Purposes of Section 3 of the Fourteenth Amendment?5 [Josh Blackman & Seth Barrett Tillman, Is President an “Officer of the United States” for Purposes of Section 3 of the Fourteenth Amendment?, 15 NYU J.L. & Liberty 1 (2021).] Blackman and Tillman examined the original 1789 constitution and concluded that the founding generation understood that the President was not an “officer of the United States.”6 [Id. at 21–24.] Their analysis focused on the text of the constitution and subsequent sources. Based on this conclusion, Blackman and Tillman “contend that the phrase ‘officer of the United States’ has the same meaning in Section 3 as it does in the Constitution of 1788.”7 [Id. at 24.] This implies that “the elected President is not an ‘officer of the United States.’”8 [Id.]

The answer to this dispute has undeniable urgency: On December 19, 2023, the Colorado Supreme Court concluded that Donald Trump is ineligible to be on the Colorado Republican primary ballot for President because he is disqualified under Section 3.9 [Anderson v. Griswold, — P.3d —, No. 23SA300, 2023 Colo. LEXIS 1177, at *141-42 (Co. Dec. 19, 2023) (holding that “because President Trump is disqualified from holding the office of President under Section Three, it would be a wrongful act under the Election Code for the Secretary to list President Trump as a candidate on the presidential primary ballot.”).] The opinion reversed a trial court judge who had found Trump did commit insurrection but that Section 3 did not apply because Presidents are not officers of the United States.10 [Anderson v. Griswold, No. 23CV32577, ¶¶ 241, 298, 313 (Dist. Ct., City & Cnty. of Denver, Nov. 17, 2023) (“The Court finds that Petitioners have established that Trump engaged in an insurrection on January 6, 2021 . . . [Here] the Court is persuaded that ‘officers of the United States’ did not include the President of the United States . . . As a result, [Section 3 of the 14th Amendment] does not apply to Trump.”). None of the dissenting Justices at the Colorado Supreme Court addressed this issue, leaving the majority’s conclusion that the President is an officer of the United States unchallenged. See Anderson, No. 23SA300, at *142-228.] Rejecting Trump’s contention that “officer of the United States” was a term of art, the state supreme court concluded that “[i]f members of the Thirty-Ninth Congress and their contemporaries all used the term ‘officer’ according to its ordinary meaning to refer to the President, we presume this is the same meaning the drafters intended it to have in Section Three.”11 [Id.] The court cited examples of the contemporaries of the Fourteenth Amendment referring to the President as an officer,12 [Id. at 83–84 (using one quote from the first session of the 39th Congress and one Supreme Court decision).] but only cited limited evidence about the use of the full term “officer of the United States.”13 [See generally id.] Baude and Paulsen similarly cite limited historical evidence, spending under ten pages on this issue, which they spend discussing logical reasoning more than historical evidence.14 [Baude & Paulsen, supra note 3, at 104-112.]

This article attempts to fill the gap in historical evidence and provide a more detailed theoretical foundation. Part I reviews Blackman and Tillman’s article and other arguments made in the Colorado litigation, including the argument that the President is not an officer because he is “elected” not “appointed,” and the argument that he is not an officer because he does not take an oath to “support” the Constitution as required by Article VI, but instead takes the Article II oath to “preserve, protect, and defend” the Constitution.15 [See infra Part I.] In Part II, we respond to these arguments as a textual matter, ultimately concluding that the President was an “officer of the United States” at the time of the Founding. Here, we (1) provide corpus linguistic evidence that the full phrase “officer of the United States” was not a term of art in contradiction to the explicit arguments made by President Trump at the Colorado Supreme Court; (2) demonstrate that at the time the Constitution was ratified, the words “appoint” and “elect” were largely used interchangeably; (3) provide founding era cites, including to a 1799 Act regarding the post office, that either explicitly identify the President as an “officer of the United States” or otherwise indicate that he is such an officer; and (4) present evidence that many state officers prior to the Civil War took an oath similar to the President’s and were still unambiguously covered by Section 3 despite not taking an oath that follows the precise language of Article VI of the Constitution. In Part III, we briefly discuss the phenomenon of “linguistic drift.” In Part IV and V, we then turn to the meaning of the phrase at the time of the ratification of the Fourteenth Amendment. In Part IV, we discuss and confirm that historical records including the text, legislative history and ratification debates of the Fourteenth Amendment, the legislative history of the Fifteenth Amendment, and popular sources such as contemporary newspapers demonstrate that elected officials were often referred to as officers, including “officers of the United States.”16 [See infra Part III.] Part V then discusses specific evidence that the President is not just an officer, but is an “officer of the United States” as contemporaries of the 14th Amendment would have understood that term. The most probative evidence is perhaps proclamations from President Andrew Johnson—the President at the time the 14th Amendment was ratified— explicitly referring to himself as either the “chief executive officer of the United States” or “chief civil executive officer of the United States.” Other evidence comes from numerous texts, including legislative history, Johnson’s impeachment trial, and newspapers.17 [See infra Part III.] Part VI reexamines case law that Blackman and Tillman rely on. We then conclude.

In his brief to the Colorado Supreme Court, President Trump argued that “not one authority holds that the President is an officer of the United States[:] no case, no statute, no record of Congressional debate, no common usage, no attorney general opinion. Nothing.” We have done our best to collect and catalog extensive evidence to the contrary.

Our conclusion is simple: the President was an officer of the United States as originally understood both at the Founding and the ratification of the Fourteenth Amendment. Numerous sources confirm that “officer of the United States” was not a term of art, which by itself settles the matter. Regardless, founding-era sources also refer to the President as an officer of the United States. This includes the Postal Act of 1799, which lists the President with officers of the United States. Additionally, there is strong probative evidence that, in 1868, President was considered an officer of the United States.

I. Summary of Past Scholarship and its use in the Colorado proceedings

This section attempts to fairly familiarize the reader with Blackman and Tillman’s points, and walk through how their article informed the proceedings in the Colorado case regarding President Trump’s eligibility to appear on the Colorado Republican Primary ballot.

A. Summary of the Blackman-Tilman Interpretation

Blackman and Tillman argue that Section 3 of the 14th Amendment cannot bar President Trump from holding future office because the only office he has held is that of President, and the President is not an officer of the United States. They compare the text of the 14th Amendment to the text of the original constitution and infer that (1) “Section 3’s ‘officer of the United States’ language was imported from the Oath or Affirmation Clause[,]”18 [Blackman & Tillman, supra note 5, at 22.] and (2) “[i]n 1788, the President was not an ‘officer of the United States.’”19 [Id. at 24.] They also tentatively state a third conclusion: “[W]e do not think linguistic drift occurred with respect to the phrase ‘officer of the United States’” between the founding in 1788 and the enactment of the Fourteenth Amendment in 1868.20 [Id. at 25.]

Blackman and Tillman first look at the constitution’s text, specifically the use of the term “officers of the United States” in the Appointments Clause, the Commission Clause, the Impeachment Clause, and the Oath and Affirmation Clause. They claim that none of these clauses suggest the existence of officers who are elected, only officers who are appointed.

● First, Blackman and Tillman emphasize that the Appointments 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.”21 [Id. at 22 (citing U.S. CONST. art. II, § 2, cl. 2). They fail to quote the entire relevant language, see nn. ___ - ____ and accompanying text here.] Because the President does not appoint himself, they reason that he cannot be an officer of the United States.

● Next, they rely on the Impeachment Clause’s reference to “The President, Vice President and all civil Officers of the United States.”22 [Id. at 22 (citing U.S. CONST. art. II, § 4).] From this language, they conclude that “the president and vice president’s [express] enumeration in the Impeachment Clause in addition to ‘all civil Officers of the United States’ shows that the president and vice president are not deemed ‘officers of the United States’ themselves. Otherwise, the Framers would have stated that ‘all other civil officers’ were subject to impeachment.”23 [Id. (emphasis in original).]

● Third, they cite the Oath or Affirmation Clause, which requires the “Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States”24 [U.S. CONST. art. VI, § 3.] to take an oath to “support the Constitution.” But because the President takes a different oath specified at the end of Article II, they conclude he must not be an officer of the United States.

● Finally, they note that Article II, Section 3, states that the President “shall Commission all the Officers of the United States.”25 [U.S. CONST. art. II, § 3.] Here, they argue, “All means all. This structure explains why appointed executive-branch and judicial-branch officers receive commissions, but there is no record of any elected official, whether a president, vice president or a member of Congress, ever receiving a [presidential] commission.”26 [Blackman & Tillman, supra note 5, at 22 ( quoting U.S. CONST. art. II, § 3).]

Based on their analysis, Blackman and Tillman claim that “Section 3’s ‘officer of the United States’ language was imported from the Oath or Affirmation Clause.”27 [Id. at 23.] They make this claim because both clauses “reference the same four categories of office holders who swore an oath to support the Constitution: [1] Senators and Representatives, [2] members of the state legislatures, [3] executive and judicial officers of the United States, and [4] executive and judicial officers of the states.”28 [Id. at 11.] Based on the parallel structure of these clauses, they conclude that because the President is not mentioned in the Oath or Affirmation Clause, the parallel language of Section 3 excludes him.

Blackman and Tillman next argue that “[i]n 1788, the President was not an ‘officer of the United States.’”29 [Id. at 24.]To support this conclusion, they first state that “[e]lected officials like the president are not ‘Officers of the United States.’”30 [Id. at 23.] Second, they rely on the drafting process surrounding the original Constitution:

For example, in the Succession Clause, the phrase “officer of the United States” was changed to “officer.” In the Impeachment Clause, the phrase “[President, Vice President,] and other Civil officers of the U.S.” was changed to “President, Vice President, and Civil Officers of the U.S.” And in its final form, the Impeachment Clause became: “President, Vice President, and all civil Officers of the United States.” The Framers changed the word that preceded “Civil Officers of the United States” from “other” to “all.”31 [Id. at 10 (citing 2 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 791, at 260 (Boston, Hilliard, Gray, and Co. 1833)).]

From these changes, they conclude:

This and other similar alterations to the draft constitution’s “office”- and “officer”-language were significant. First, these revisions show that this language was not modified indiscriminately. The Framers paid careful attention to the words they chose. Second, the use of “other” in the draft constitution shows that at a preliminary stage, the Framers used language affirmatively stating that the President and Vice President were “Officers of the United States.” But the draft constitution’s use of “other” was, in fact, rejected in favor of “all.” The better inference, arising in connection with the actual Constitution of 1788, is that the President and Vice President are not “Officers of the United States.”32 [Id. at 9–10.]

Finally, Blackman and Tillman tentatively conclude: “[W]e do not think linguistic drift occurred with respect to the phrase ‘officer of the United States’” between the founding in 1788 and the enactment of the Fourteenth Amendment in 1868.33 [Id. at 25.] They cabin this conclusion carefully, noting repeatedly that this conclusion was based on the lack of “direct, clear, or compelling evidence.”34 [Id. at 24.] They cite two cases—United States v. Mouat (1888) and United States v. Hartwell (1867)—as evidence.35 [Id. at 26 (citing United States v. Mouat, 124 U.S. 303 (1888) and United States v. Hartwell, 73 U.S. 385 (1867)).] They also cite to statements from two individuals who viewed the President as not an officer of the United States:

[quote]In 1876, the House of Representatives impeached Secretary of War William Belknap. During the trial, Senator Newton Booth from California observed, “the President is not an officer of the United States.” Instead, Booth stated, the President is “part of the Government.”

Two years later, David McKnight wrote an influential treatise on the American electoral system. He reached a similar conclusion. McKnight wrote that “[i]t is obvious that . . . the President is not regarded as ‘an officer of, or under, the United States,’ but as one branch of ‘the Government.’36 [Id. at 30 (citing Congressional Record Containing the Proceedings of the Senate Sitting for the Trial of William W. Belknap, Late Secretary of War, on the Articles of Impeachment Exhibited by the House of Representatives 145; David A. McKnight, The Electoral System of the United States: A Critical and Historical Exposition of Its Fundamental Principles in the Constitution, and of the Acts and Proceedings of Congress Enforcing It 346 (Philadelphia, J.B. Lippincott & Co. 1878).]

However, Blackman and Tillman admit that they “do not suggest that there is no counter-authority” but ask for evidence “as probative as” their own before they accept the proposition of linguistic drift.37 [Id. at 31.] We do not suggest that, if Blackman and Tillman were right about these core points, that they would be wrong in the conclusion they draw: that a President who had not otherwise served as an officer of the United States would not be subject to the Fourteenth Amendment.38 [We, however, note that Blackman and Tillman concede that, had President Trump served as a member of Congress or been a governor prior to being elected president, he would be subject to Section 3. Id. at 47. Indeed, they note President Trump is “the only President in American history to have never held prior state or federal, civilian or military, public office.” Id. Correct. But this precedent has a bite. Accept that every President prior to Trump indeed had previously served “ 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” until President Trump. Did the drafters of the Fourteenth Amendment really both anticipate that some future President would not have held such a position, and specifically intend to exclude him— but not the other Presidents— from the disability anticipated by Section 3?] Instead, we believe they are wrong on these points.39 [See Sec. II, III, IV, infra.]

Blackman and Tillman have written a more recent article, Sweeping and Forcing the President into Section 3, where they respond directly to Baude and Paulsen at length.40 [Josh Blackman & Seth Barrett Tillman, Sweeping and Forcing the President Into Section 3, 28 Tex. Rev. L. & Pol. 350 (forthcoming 2024).] Much of their substantive discussion is indistinguishable from their earlier discussion as they focus their attention on their existing scholarship on the term “officer of the United States.” As they did in their original article, they cite Senator Booth and David McKnight.41 [Id. at 535. (internal cites)] They discuss the other Clauses their first paper discussed, and spend time critiquing Baude and Paulsen’s discussion of this issue.42 [Id. at 535-36.]

But they continue to convey a commendable level of humility about their position: “Maybe Booth and McKnight were right, or maybe they were wrong. No doubt, there are other competing authorities.”43 [Id. at 537.] “We do not say this question has an obvious answer. Rather, we say it does not have an obvious one. If so, ambiguity leans against extending disqualifications.”44 [Id. at 543.] In discussing if there was linguistic drift regarding “Office … under the United States,” they say, "[w]e would prefer to add to the body of scholarship and be correct, rather than overreach and be wrong.”45 [Id. at 551 (italics removed).]

In their response to Baude and Paulsen, Blackman and Tillman point to the Oath and Affirmation Clause as the source of the meaning of terms in Section 3, suggesting that “[i]f we are correct, it illustrates that constitutional draftspersons, in 1789–1788 and 1866–1868, closely adhered to parliamentary drafting conventions,” and critique the legal academy for not understanding those conventions.46 [Id. at 541.] They also repeat an argument made in the Colorado litigation: that because the Presidential Oath says “preserve, protect and defend” and the Article VI oath says “support,” Section 3 includes the latter and excludes the former.47 [Id. at 542.] Blackman and Tillman also cite contemporary opinions by Attorneys General and others that link Article VI and Section 3.48 [Id. at 543–46.]

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Part 2 of 5

B. Reliance by Lower Colorado Court

In late 2022, Donald Trump announced he would run for President again.49 [Federal Election Commission, FEC Form 2; Statement of Candidacy, FEC-1661552 (2023), https://docquery.fec.gov/cgi-bin/forms/ ... 1/1661552/.] In September 2023, five Colorado residents sued Colorado’s Secretary of State, arguing that Trump was ineligible to be on the ballot in Colorado because he had violated Section 3.50 [Anderson v. Griswold, No. 23SA300, 2023 Colo. LEXIS 1177, at *5 (Co. Dec. 19, 2023).] Obviously, Trump intervened.51 [Id.] Trump cited Blackman and Tillman in support of the proposition that the President was not an officer of the United States.52 [Anderson v. Griswold, Intervenors’ Proposed Findings of Fact and Conclusions of Law, 43, 57, Nov. 11, 2023.] Trump quoted the examples Blackman and Tillman gave: Senator Booth and Treatise writer David McKnight stating that the President was not an officer of the United States.53 [Id. at 43.] He also cited recent Supreme Court precedent, including the statement by Chief Justice Roberts that “[t]he people do not vote for the ‘Officers of the United States.’”54 [Id. (citing Free Enterprise Fund v. Public Company, Accounting Oversight Board, 561 U.S. 477, 497-98 (2010)).] Finally, Trump cited the Appointments Clause, the Impeachment Clause, the Commission Clause, and the Oath and Affirmation Clause, closely tracking Blackman and Tilman in some detail as to why each Clause supports the idea that the President is not an officer of the United States.55 [Id. at 44-46.]

The trial court ultimately ruled against Trump on every dispositive issue except whether the office of the President was an officer of the United States.56 [Anderson v. Griswold, No. 23SA300, 2023 Colo. LEXIS 1177, at *14 (Co. Dec. 19, 2023).] While the court did not cite Blackman and Tillman, it did cite to the same four clauses that Blackman and Tillman and Trump’s briefing rely on—the Appointments Clause, the Commission Clause, the Impeachment Clause, and the Oath and Affirmation Clause.57 [Anderson v. Griswold, No. 23CV32577, ¶ 311 (Dist. Ct., City & Cnty. of Denver, Nov. 17, 2023).] The trial court also noted that the President takes a different oath than Article VI officers, suggesting that his oath was not covered by Section 3.58 [Id. ¶¶ 311, 313 n.19.]

However, part of the reason for the trial court’s decision was the implications of an alternative conclusion. The court stated:

To be clear, part of the Court’s decision is its reluctance to embrace an interpretation which would disqualify a presidential candidate without a clear, unmistakable indication that such is the intent of Section Three. As Attorney General Stanbery again noted when construing the Reconstruction Acts, “those who are expressly brought within its operation cannot be saved from its operation. Where, from the generality of terms of description, or for any other reason, a reasonable doubt arises, that doubt is to be resolved against the operation of the law and in favor of the voter.” The Reconstruction Acts, 12 U.S. Op. Att’y Gen. 141, 160 (1867) (emphasis added). Here, the record demonstrates an appreciable amount of tension between the competing interpretations, and a lack of definitive guidance in the text or historical sources.59 [Id. at 314.]

C. Rejection by Colorado Supreme Court

Trump’s core argument at the Colorado Supreme Court was that the catch-all phrase “officer of the United States” excludes the President as “no case, no statute, no record of Congressional debate, no common usage, no attorney general opinion” supports the conclusion that the President is an officer and by contrast, three Constitutional provisions— the Appointments Clause, Impeachment Clause, and Commissions Clause in Article II— all distinguish the President from ‘officers of the United States.’ And ‘officers of the United States’ in Article VI take an oath different from the Presidential oath in Article II.”60 [Anderson v. Griswold, Intervenors’ Opening-Answer Brief, 11.] Trump also argued that the Presidential oath does not qualify as an oath under Section 3’s requirements for disqualification.61 [Id. at 12.]

The Colorado Supreme Court disagreed. The court concluded:

● “[T]he normal and ordinary usage of the term ‘officer of the United States’ includes the President.”62 [Anderson v. Griswold, No. 23SA300, 2023 Colo. LEXIS 1177, at *83 (Co. Dec. 19, 2023).]

● “Section Three’s drafters and their contemporaries understood the President as an officer of the United States.”63 [Id.]

● Trump was incorrect to argue that “‘officer of the United States,’... is a constitutional term of art” because the court “perceive[d] no persuasive contemporary evidence demonstrating some other, technical term-of-art meaning.”64 [Id. at 84.] In other words, if “officer of the United States” was a term of art, someone would have said so.

● Attorney General Stanbery’s opinions on the subject suggest that the term “officer of the United States was to be broadly understood.65 [Id. at 111.]

However, the Colorado Supreme Court did not cite much historical evidence referring to the President by the term “officer of the United States.” Many of the examples concerned referring to the President as an officer.

While three Justices dissented from the holding of the majority, none of them argued that the President was not an officer of the United States.66 [Id. at 155, 200-01 n.1 (using the term “officer of the United States” to reincorporate the language from Section 3 of the Fourteenth Amendment and from the holding of the majority). In his dissent, Justice Samour recognized the “vital need for definitional counsel” on questions such as who is an “officer of the United States.” Id. at 186. Yet Justice Samour declined to consider this issue. Id.]

D. The Colorado GOP’s Petition for Certiorari

The Colorado Republican Party has filed for certiorari, represented by Jay Sekulow, a long-time ally of Trump who has argued fourteen 14 or more cases at the Supreme Court. The leading question presented concerns whether the President is an officer of the United States.67 [Anderson v. Griswold, Petition for Writ of Certiorari, No. 23-696,(Dec. 27, 2023), i.] Their brief for certiorari reads like a merits brief.

In arguing that the President is not an officer of the United States, the brief makes the following core points: First, the President is not an officer because officers are commissioned by the President under the Commissions Clause, not elected.68 [Id. at 11-12.] Second, “officers of the United States” is a term of art that is only used in three places in the Constitution: Section Three of the Fourteenth Amendment, the Commissions Clause, and the Appointments Clause.69 [Id. at 12.] Trump argues that, “The Constitution uses a distinct, specific term, ‘officer of the United States.’ Generic references to the term officer do not overcome the more specific meaning evidenced by the constitutional language.”70 [Id. at 13.] Third, they rely on the same sources of Senator Booth and David McKnight that were previously explained.71 [Id.] Fourth, they make a distinction between the Presidential oath and the Article VI oath, relying on Attorney General Stanberry’s discussion of the Article VI oath.72 [Id. at 14.] Finally, they posit that this exclusion of the President from Section 3 makes sense as a policy matter:

Every Senator or Representative represents a geographic area where sympathy for insurrection was (at the time of the post-Civil War era) a real and legitimate concern. Lower federal officers, meanwhile, are not elected and thus do not face national electoral scrutiny. Only the President (and Vice-President) face nationwide electoral accountability. And if an electoral majority of the voters determine that they want a certain individual as Chief Executive, regardless of alleged or even actual past transgressions, that is their national choice under the Constitution.73 [Id. at 15.]

(This last argument appears poorly reasoned; if a President had previously served as a Senator, Governor, or General, as many Presidents have, it would not matter that “an electoral majority of the voters determine that they want [that former President] as Chief Executive” if that President committed insurrection; they would be ineligible to run for a second term. This argument does not explain why the Fourteenth Amendment’s drafters would have wanted to exclude only Presidents who had never held offices such as Senator, Governor, or General.)

II. The Phrase “Officer of the United States” included the President at the time of the Founding

Despite Blackman and Tillman’s articles being an impressive examples of careful scholarship, there are at least four reasons we disagree with the conclusion that the original public meaning of “officers of the United States” did not include the President or Vice President: (1) corpus linguistics evidence—including our own past research— demonstrates that at the time of the Founding, “officer of the United States” was not a term of art but instead referred to any federal official; (2) the assumption that there was a rigid distinction between “elections” and “appointments” is at odds by the historical record which shows that the words were instead used interchangeably; (3) the text of the Constitution specifically identifices the Presidency as an “office”; and (4) additional contextual considerations complicate Blackman and Tillman’s otherwise straightforward textual analysis. While this topic merits an article of its own, we will address each reason briefly below.

A. Corpus Linguistics Evidence Supports that the President is an Officer of the United States.

First, many who argue that the President is not an officer of the United States— including President Trump and Steven Calabresi—do so based on the assumption that the phrase “officer of the United States” is a term of art74 [74 See id. at 12; see also Steve Calabresi, Donald Trump Should be on the Ballot and Should Lose, The Reason (Sep. 16, 2023), available at: https://reason.com/volokh/2023/09/16/ steve-calabresi-donald-trump-should-be-on-the-ballot-and-should-lose/ (“Thirty-three years of academic research and writing on the presidency has persuaded me that the words ‘officer of the United States’ are a legal term of art, which does not apply to the President”). It should be noted that Blackman and Tillman agree that the phrase “was not a fixed term of art.” Seth Barrett Tillman and Josh Blackman, Offices and Officers of the Constitution, Part III: The Appointments, Impeachment, Commissions, and Oath or Affirmation Clauses, 62 S. TEX. L. REV. 349, 444 (2023).] —an assumption that past research refutes. In 2018, we wrote an amicus brief on behalf of fifteen scholars of corpus linguistics which was submitted to the U.S. Supreme Court in the case Lucia v. SEC.75 [Brief Submitted by Scholars of Corpus Linguistics as Amici Curiae, Lucia v. SEC, Supreme Court Case (filed by James Heilpern, Gene Schaerr, and Michael Worley). Available at SSRN: https://papers.ssrn.com/sol3/papers.cfm ... id=3132688.] As part of that brief, a corpus linguistic analysis of the phrase was performed, from which we drew the following conclusions:

The phrase “Officer(s) of the United States” appears in [BYU’s Corpus of Founding Era American English (“COFEA”)] just 109 times between 1789 and 1799, with just over a third of those being direct quotations of the Constitution. This is a tiny minority of the 5,353 times the word “officer” appears in the database overall during this same period―even though 59.8% of the time the word “officer” appears in COFEA it is clearly referencing a federal [official].

While the relative obscurity of the longer phrase does not prove that it was not a legal term of art at the time of the Founding, we perceive no specialized meaning attached to its use [to suggest that it was]. Instead, the appellation was often used simply to clarify that the agent was in the employ of the federal government, as opposed to a private actor or employee of a state or territory.

For example, in a letter to George Washington, General Arthur St. Clair expressed concern that the Attorney General of the new Ohio territory “would be an Officer of the Territory only, whereas he should be an Officer of the United States.” Likewise, Alexander Hamilton wrote to New York merchant William Seton, requesting he purchase public debt on behalf of the federal government since the government had yet to “employ some officer of the United States” for the task.

We did not see then—and do not see now—any evidence to suggest that the term excluded the President or was limited to some special subclass of federal officials. To the contrary, it applied broadly to all government officials—“civil and military”―exercising any nontrivial federal authority. For instance, in his Eighth Annual Address to Congress at the end of 1797, George Washington called for “legislative revision” of “[t]he compensation to the officers of the United States,” particularly “in respect to the most important stations.” Congress responded the following March, raising the salaries of sundry government officials, starting with “the President and Vice President of the United States.”76 [Act of March 19, 1798, ch. 18, 5 Stat. 542.] The fact that Congress did not use the phrase “officers of the United States” in this appropriations bill, but instead referred generally to “officers,” “offices,” and “persons employed,” even when referring to positions such as the Secretary of State, Attorney General, Secretary of the Treasury, Secretary of War, Chief Justice, and Consuls—positions that neither Blackman and Tillman nor President Trump would dispute are “officers of the United States” —further demonstrates that the larger phrase was not considered a term of art.

In fact, a corpus search of BYU’s Corpus of Early Statutes at Large—which the authors of the Lucia brief created and which contains all of the Statutes at Large from the first five Congresses—reveals that Congress almost never used the phrase “officer(s) of the United States” during this time period, despite being an era when Congress was constantly exercising its power to “establish[] by law”77 [U.S. Const., art. II, sec. 2.] such positions within the new government. In its first decade, Congress used the phrase just thirteen times, while using the word officer or officers 1,481 times and office or offices 630 times. This would be baffling if “officer of the United States” was a legal term of art but makes perfect sense if the phrase merely designated a federal official—after all it was the Congress of the United States creating the positions, what other type of office would we expect? One for Virginia? Japan? In the absence of clear textual clues to the contrary—such as perhaps territorial officers—the default assumption should be that all of such positions created by Congress are officers of the United States.

In addition, of the thirteen times the full phrase appears, one—a postal bill specifying which “officers of the United States” should be granted a franking privilege—specifically listed both the President and Vice President as officers of the United States.78 [Act to Establish the Post Office of the United States, 5 Stat. 733.] The Postal Act of 1799 stated:

Sec. 17. And be it further enacted, That letters and packets to and from the following officers of the United States, shall be received and conveyed by post, free of postage. Each postmaster . . .; each member of the Senate and House of Representatives of the Congress of the of the United States; the Secretary of the Senate and Clerk of the House of Representatives . . .; the President of the United States; Vice President; the Secretary of the Treasury; Comptroller; Auditor; Register; Treasurer; Commissioner of the Revenue.

The conclusion that the phrase “officer of the United States” was not a term of art at the time of the Founding is further buttressed by the research of Professor Jennifer Mascott, who used aspects of corpus linguistics to demonstrate that the phrase was in use prior to the creation of the Constitution.79 [Jennifer L. Mascott, Who Are “Officers of the United States”? 70 Stan. L. Rev. 443 (2018).] Using a corpus of 340,000 issues of early American newspapers, she found twenty uses of the phrase “prior to the signing of the Constitution on September 17, 1789.”80 [Id. at 478.] The first reference was in 1780, describing Benedict Arnold as a “general officer of the United States.”81 [Id.] It appeared again in 1783 referring simply to continental officers. Other uses included “Judicial Officers of the United States” and “commissaries and other officers of the United States” who gave out certifications of debt under the Constitution.82 [Id. at 479.]

Mascott also performed a corpus analysis of the Journals of the Continental Congress, “a highly relevant source for identifying the well-understood meaning of legally relevant terms and phrases in the time period just prior to… the drafting and ratification of the Constitution.”83 [Id. at 477.] The Journals contain forty-one references to “officer(s) of the United States.” Often the phrase was “just another way to describe continental military officers or to identify continental-level, as opposed to state-level, officers.”84 [Id. at 477-78.] For example, one letter distinguished between the time a military officer served as an “officer of the United States” and the time he served as a captain for his State.85 [Id. at 478 n.175.]

From both a legal and linguistic perspective, we think the importance of the full phrase “officer of the United States” not being a term of art at the time of the Founding cannot be overstated. It narrows the scope of the linguistic inquiry: the meaning of the word “officer” standing alone becomes the relevant question, with “of the United States” simply being a prepositional phrase functioning as an adjective. A comment by Alexander Hamilton in Federalist 67 supports this conclusion:

The second clause of the second section of the second article empowers the President of the United States "to nominate, and by and with the advice and consent of the Senate, to appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other OFFICERS of United States whose appointments are NOT in the Constitution OTHERWISE PROVIDED FOR, and WHICH SHALL BE ESTABLISHED BY LAW."86 [The Federalist 67 (Alexander Hamilton). (Capitalization in original).]

While we will return to the substance of Hamilton’s statement later, what’s important for present purposes is his interesting use of capitalization for emphasis. If he had understood the term “officers of the United States” to be a term of art, he would have written “OFFICERS OF THE UNITED STATES.” But he didn’t. He focused on just the word “OFFICERS.”

The addition of a modifier—whether it’s “tall,” “red,” or “of the United States” —can rarely change the meaning of the underlying noun it is modifying. As we observed in another corpus linguistics-based amicus brief we wrote in a different Supreme Court case:

An adjective is a word that modifies nouns and pronouns, primarily by describing a particular quality of the word that it is modifying. In syntactic representations the adjective is a subordinate category, a dependent of the noun . . . that it modifies. In layman’s terms, this means that in the relationship between adjectives and their nouns, the noun is king—an adjective’s meaning and scope is always relative to the noun it is modifying. . . . Put another way, an adjective can hardly ever decontextualize a noun.87 [Brief Submitted by Scholars of Corpus Linguistics as Amici Curiae, Rimini Street v. Oracle, Supreme Court Case (filed by James Heilpern, Gene Schaerr, and Michael Worley) (cleaned up and internal quotation marks and citations omitted).]

We think that this is important for evidentiary purposes: it dramatically expands the universe of helpful examples relevant in determining the original public meaning of the phrase in at least three ways. First, we can assume that references to “federal officers,” “national officers,” “officers of the federal government,” “United States officers” and similar phraseology are also references to “officers of the United States” —unless, of course, there is evidence that one of those phrases is a term of art.

Next, we also think that it makes historical details about state and local officers more relevant. While the fact that a state constitution might allow for a governor or other state officer to be elected doesn’t tell us anything about whether the U.S. Constitution allows for a federal officer to be elected, it does provide evidence that there was nothing inherently wrong about officers generally being elected.

Finally, in his brief to the Colorado Supreme Court, President Trump argued, that “despite the many words and citations that treat the President as an officer[,] not one authority holds that the President is an officer of the United States[:] no case, no statute, no record of Congressional debate, no common usage, no attorney general opinion. Nothing.” While our discovery of the Postal Act of 1799 has already proven that the former President’s assertion is not true, even if it were, it wouldn’t matter. Those many “words and citations that treat the President as an officer” are absolutely relevant unless it can be shown that the full phrase “officer of the United States” means more than the sum of its parts. Which it does not.

B. At the time of the Founding, “appoint” and “elect” were used interchangeably

Second, the argument that the President is not an officer of the United States is built on the assumption that there is a rigid distinction between appointments and elections. Blackman and Tillman have repeatedly stated this:

● “In order to reach this . . . conclusion [that the President could be an “Officer of the United States”], the interpreter must reject the distinction we drew between elected and appointed federal positions.”88 [Blackman & Tillman, supra n. 74, at 391.]

● “The Constitution hardwired this distinction between appointment and election.”89 [Id.]

● “The President is in ‘the service of the government,’ but is not appointed by a President, a court of law, or a department head; indeed, he is not appointed at all . . . the Constitution expressly states that the President ‘shall . . . be elected.’ Under the rule in Mouat, the President is not ‘strictly speaking’ an officer of the United States.’”90 [Blackman & Tillman, supra n. 5, at 27.]

● “Presidents are not appointed; they are elected.”91 [Seth Barrett Tillman, Brief Submitted by Professor Seth Barrett Tillman as Amicus Curiae in Support of Defendant-Appellee Secretary of State Jocelyn Benson and in Support of Affirmance of the Court of Claims’ Order Denying Plaintiffs’ Prayer for Relief, Dkt Nos. 368615 & 368628 (Mich. Court of Appeals Dec. 6, 2023) (file, Available at SSRN: https://ssrn.com/abstract=4655777.]

● “Presidents are not ‘appointed’ by the ‘government.’ Rather, Article II describes the President as an ‘elected’ position in several clauses.”92 [Tillman, supra n. 132, at 23.]

And they are not alone: Steven Calabresi93 [Calabresi, supra n. 76.] and Michael Mukasey94 [Michael B. Mukasey, Was Trump ‘an Officer of the United States’?, Wall Street Journal (Sept. 7, 2023), available athttps://www.wsj.com/articles/was-trum ... amendment- 50b7d26.] have all made similar arguments. But there is one really good reason to “reject the distinction [they all draw] between elected and appointed federal positions”: It didn’t exist at the time of the Founding. It’s a linguistic anachronism. The words appear to have been used interchangeably, at least to the extent that an election was considered a mode of appointment. For example, in a speech given during the Constitutional Convention, James Madison discussed different options for selecting the President: “The option before us then lay between an appointment by Electors chosen by the people — and an immediate appointment by the people.”95 [“Method of Appointing the Executive, [25 July] 1787,” Founders Online, National Archives, https://founders.archives.gov/documents ... 10-02-0072. [Original source: The Papers of James Madison, vol. 10, 27 May 1787–3 March 1788, ed. Robert A. Rutland, Charles F. Hobson, William M. E. Rachal, and Frederika J. Teute. Chicago: The University of Chicago Press, 1977, pp. 115–117.]] Likewise, during the impeachment trial of Senator William Blount, Congressman Robert Harper of South Carolina—one of the House Impeachment Managers—stated, “[T]he President himself is liable to be impeached, as well as the officers whom he appoints. So also is the Vice President. And yet these two great officers are appointed by the people themselves, in a manner far more direct and immediate than Senators, and removable at shorter periods.”96 [8 Annals of Cong. 2315 (1799) (Gales and Seaton ed., 1851). V]

And these comments were not one-offs. As we will show below, the historical record— including the text of the Constitution itself, the Articles of Confederation, early state constitutions, and repeated statements to and by George Washington — overwhelmingly shows that the Founding generation used the word “elect” and “appoint” largely as synonyms.

1. Text of the Constitution

To begin with, the text of the Constitution itself demonstrates that the founding generation did not use the words “appoint” and “elect” in the same binary fashion we do today. This is evident in the original Constitution’s discussion of the Electoral College. It is often easy to forget that while the President is “elected” (as it states in the Constitution), he is not elected by the people. He is elected by the Electoral College—a non-standing, multi-member body of sorts whose members choose the President and Vice President by vote. But how are these Electors chosen? There is no Constitutionally required method. Article II, Section 1 simply states: “Each state shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress.”

Ten states participated in the first Presidential Election of 1788-89.97 [North Carolina and Rhode Island had not yet ratified the Constitution. New York failed to appoint electors by the deadline set by Congress.] While the methods for appointing electors varied, none followed the pattern we are accustomed to today with a single individual or council (with or without the approval of a legislative body) unilaterally making the decision. Instead, four states “appointed” these electors through popular elections. Unlike today where the voters generally cast ballots for Presidential candidates (with slates of electors who support the winner of the popular vote in the state being appointed behind the scenes in accordance with state law) in several states in 1789, the citizenry voted for individual electors. For example, “Virginia chose presidential electors by popular vote. The state was divided into electoral districts. The voters in each district selected one presidential elector, who was then certified to the governor by the sheriffs of the counties comprising that district.”98 [Library of Virginia, Presidential and Congressional Election Returns at the Library of Virginia, available at:https://www.lva.virginia.gov/public/guides/rn21_election.pdf.] Delaware followed a similar procedure.99 [The Papers of George Washington, The Electoral Count for the Presidential Election of 1789, archive available at: https://web.archive.org/web/20130914141 ... l/electora l.html.] And Pennsylvania and Maryland chose their electors through state-wide elections, with the highest vote getters at-large being “appointed.”100 [Id.]

Massachusetts and New Hampshire followed hybrid models. In Massachusetts, a popular election was held in each of eight districts, but then the legislature appointed one of the two highest vote getters.101 [Id.] In New Hampshire, a state-wide election was held, and then the legislature selected five of the top ten vote getters.102 [Id.] In three states—Connecticut, Georgia, and South Carolina—the state legislatures appointed their respective electors entirely themselves.103 [Id.] But how does a multi-member legislative body “appoint” someone? As one newspaper article about the legislative component of the Massachusetts process explained, “the Members of the two Houses [of the Legislature], assembled together in one room for the choice of Electors of President and Vice President of the United States, and proceeded to the choice by joint ballot.”104 [ ] In other words, they voted.

Thus in nine of the ten states, the electors were chosen through some sort of election— either by the people, the legislature, or both. But these elections did not mean that the electors were not appointed. Instead, it demonstrates that at the time of the Founding, appointments and elections were not thought to be mutually exclusive.

2. Early State Constitutions

Next, we find evidence that the founding generation used the words “appointed” and “elected” interchangeably in the first constitutions of the thirteen original states. We collect the relevant text of these Constitutions in Appendices A and B. At the time, popular elections for chief executives and judges were almost unheard of.105 [ But see, Const. of Mass. (1780).] Instead, executive and judicial officers were typically chosen by a state’s General Assembly. But while some of the states used the word elect to describe this process,106 [See, Const. of N.J., art. VII (1776) (“That the council and assembly jointly in their first meeting after each annual election, shall by a majority of votes, elect some fit person with the Colony to be a governor for a year.”).] others used the word appoint.107 [Const. of Del., art. 12 (1776) (“The president and general assembly shall by joint ballot appoint three justices of the supreme court for the State, one of whom shall be chief justice, and a judge of admiralty, and also four justices of the courts of common pleas and orphans' courts for each county, one of whom in each court shall be styled "chief justice," (and in case of division on the Ballot the president shall have an additional casting voice,); Const. of Va. (1776) (““The two Houses of Assembly shall, by joint ballot, appoint Judges of the Supreme Court of Appeals, and General Court, Judges in Chancery, Judges of Admiralty, and the Attorney-General.”] Often the same Constitution would use both words to describe the same process, often in the same sentence! For example, under the Georgia Constitution of 1776, the Governor was “cho[sen] . . . by ballot” by the legislature—that the drafters of Constitution considered this process to be both an election and an appointment is demonstrated by the governor’s Constitutionally-mandated oath of office: ““I, A B, elected governor of the State of Georgia, by the representatives thereof, do solemnly promise and swear that I will, during the term of my appointment, to the best of my skill and judgment, execute the said office faithfully and conscientiously' according to law . . .” Likewise, the Maryland Constitution states that “a person of wisdom, experience, and virtue, shall be chosen as Governor . . . by the joint ballot of both houses.” The ballots were to be counted by “a joint committee of both Houses” and the results then reported to the rest of the Assembly so “that the appointment may be entered.” However, the Constitution then specified that if after two rounds of voting, two or more candidates received the same number of votes, “then the election of the Governor shall be determined by lot.”

3. Articles of Confederation

Similarly, there is ample evidence that Continental Congress under the Articles of Confederation used the two words interchangeably as well. The Articles of Confederation were adopted by the Continental Congress on November 15, 1777, as the new nation’s first constitution. It used the word “appoint” (or one of its variations) twenty times, but for present purposes we will focus on just one. Article IX—the predecessor to the Constitution’s Appointment Clause—gave the “united states in congress assembled . . . [the] authority . . . to appoint civil officers as may be necessary for managing the general affairs of the united states under their direction.”108 [Articles of Confederation, art. IX.] But despite this verbage, the Journals of the Continental Congress often used the word “elect” for such actions. We have reproduced just a handful of the many examples below:109 [We found these and many more examples using the Corpus of Founding Era American English. Our search can be replicated by searching for the word “secretary” within six words on either side of “elect*” during the time frame 1777-1788.]

● “Pursuant to the resolution of the 7th of March last, Congress proceeded to the election of a minister plenipotentiary, to succeed Mr. J. Adams at the court of the United Netherlands, and, the ballots being taken, William Livingston, esqr was elected having been previously nominated by Mr. Stewart.”110 [1785 Journals of the American Congress 541 (1823), available at http://tinyurl.com/ymu6udjw.]

● “Congress proceeded to the election of a secretary and paymaster to the navy board in the middle district, and the ballots being taken, Mr. Joseph Pennel was elected.”111 [1779 Journals of the Continental Congress 345 (1909), available at http://tinyurl.com/2j748b9p.]

● “According to the order of the day, Congress proceeded to the election of a Secretary for foreign affairs, but not agreeing in the choice, Resolved, That the order for electing a Secretary for foreign affairs, be postponed til Monday next.”112 [1784 Journals of the American Congress 340 (1823), available at http://tinyurl.com/5n733cxe.]

● “Ordered, That the election of a secretary for foreign affairs be postponed till Friday next.”113 [1781 Journals of the Continental Congress 637 (1912), available at http://tinyurl.com/4mhe4haf.]

While some of these “elections” were undoubtedly uncontested—reminiscent to Senate confirmations today—others clearly featured multiple candidates, as demonstrated by a letter from James Mitchell Varnum, a delegate to the Continental Congress from Rhode Island, to General George Washington: “We have attempted to elect a Secretary at War— Genls Greene, Lincoln & Knox are in Nomination; all the Votes for one or other of those Gentlemen. We effected nothing.”114 [Letter from James Mitchell Varnum, delegate to the Continental Congress, to George Washington (October 2, 1781), available at https://founders.archives.gov/documents ... 1-02-07078.]

We also found evidence that in their private correspondence, many delegates (and former delegates) to the Continental Congress used the words “appoint” and “elect” as synonyms, even when talking about the same position! For example, in 1781, George Washington wrote a letter to Phillip Schuyler—the father-in-law of his young protegee Alexander Hamilton—informing Schuyler of his “prospect of . . . election” as “Minister of War” and urged him not to refuse the post “if the choice should fall on you.”115 [Letter from George Washington to Philip John Schuyler (Feb. 20, 1781), available at https://founders.archives.gov/?q=%20Aut ... %22your%20 election%22&s=1111311111&r=2.] But four years later, Washington wrote to Henry Knox after the latter was appointed to the same position, saying “It gave me great pleasure to hear of your appointment as Secretary at War – without a complimt [sic], I think a better choice could not have been made.”116 [Letter from George Washington to Henry Knox (June 18, 1785), available at https://founders.archives.gov/documents ... 03-02-0057.] Likewise, in 1779, John Adams wrote to Samuel Huntington, the President of the Continental Congress, stating: “I had Yesterday the Honor of receiving your Letter of the twentieth of October inclosed with two Commissions, appointing me Minister Plenipotentiary, from the United States, to negotiate Peace and Commerce with Great Britain.”117 [[September and October 1779] ,” Founders Online, National Archives, https://founders.archives.gov/documents ... -0002-0001. [Original source: The Adams Papers, Diary and Autobiography of John Adams, vol. 4, Autobiography, Parts Two and Three, 1777–1780, ed. L. H. Butterfield. Cambridge, MA: Harvard University Press, 1961, pp. 173–191.]] Yet he told the Comte de Vergennes, ““The Congress of the United States of America did me the honor to elect me their Minister Plenipotentiary, to negotiate a Peace with Great Britain[.]”

As in state constitutions, sometimes the terms were used interchangeably even in the same document. Consider the following letter from Samuel Huntington, President of the Continental Congress, to Thomas Jefferson, informing the latter of his appointment as a peace commissioner:

Before this comes to Hand your Excellency will have received my Letter of the 2d Instant with it’s Enclosures, by which you will be informed that a Negotiation for Peace between the Belligerent Powers may probably take Place through the Mediation of the Empress of Russia and Emperor of Germany.

In Consequence of which Congress have thought proper to add four other Plenipotentiaries to the Honorable John Adams Esquire to assist in the expected Negotiation, of which you are elected one . . . . Your Appointment is ordered to be kept secret that the Enemy may not get Intelligence of your Embarkation.

With very great Respect I have the Honor to be Your Excellency’s Most obedient & most humble Servant,

SAM. HUNTINGTON President

Enclosure
By the United States in Congress assembled

June 14. 1781

Resolved That four persons be joined to Mr. Adams in negotiating a peace between these United States and Great Britain.

The following were elected

The honble. Benjamin Franklin
The honble John Jay
The honble. Henry Laurens
The honble. Thomas Jefferson118 [Letter from Samuel Huntington, President of the Continental Congress, to Thomas Jefferson (June 15, 1781), available at http://tinyurl.com/2aw9jerj.]

Given this clear linguistic pattern in both early state Constitutions and the Articles of Confederation, it seems odd to suggest that a rigid distinction between the two words would suddenly appear in 1787 in the U.S. Constitution.

4. Addresses to and from George Washington

We have shown that the Founding generation frequently used the word “elect” to describe the process of appointment, but is the inverse true as well? Were the “elected” positions in the Constitution ever referred to as “appointments?” The answer is a resounding yes.

When George Washington was elected president in 1789, he was universally “sated with adulation.”119 [Ron Chernow, WASHINGTON: A LIFE 563 (2010).] His trip from Mount Vernon to New York for his inauguration took longer than he expected because he was constantly delayed by public feasts. As one biographer described his procession through Pennsylvania, “[a]s Washington entered Philadelphia, he found himself, willy-nilly, at the head of a full-scale parade. Twenty thousand people lined the streets, their eyes fixed on him in wonder.”120 [Id.] Newspapers around the country reprinted a host of “addresses” from prominent citizens and government figures given that day congratulating the President on his electoral victory. These messages often spoke of Washington as having been appointed President. The “President and Supreme Executive Council of Pennyslvania” stood to “to congratulate you upon the establishment of the faederal constitution, and felicitate ourselves, and our country, upon your unanimous appointment to the Presidency of the United States.”121 [An Address to the President of the United States, from the President and Supreme Executive Council of Pennsylvania, Pennsylvania Gazette (April 22, 1789), available at http://tinyurl.com/n29ep8am.] The “Mayor, Recorder, Alderman and Common Council of the city of Philadelphia . . . assembled[] to present you our sincerest congratulations on your appointment to the station of President of the United States.”122 [Id.] The “standing committee of the Pennsylvania State Society of the Cincinnati” congratulated Washington on his “appointment, by the people, to the office of first Magistrate of this great empire[.]123 [Id.] “The Synod of the Reformed Church in North-America” met for the first time since Washington’s “appointment” in order to congratulate him and “join that great and general joy testified by all descriptions of citizens on your acceptance of the highest office in the nation.”124 [Dunlap and Claypoole’s American Daily Advertiser (Nov. 26, 1789), available at http://tinyurl.com/yxhc863s.] Not to be outdone, the leadership of the German Lutheran Church “announce[d] the joy we entertain” in Washington’s “appointment to the station of President in Chief.”125 [The Address of the Ministers, Church Wardens and Vestrymen of the German Lutheran Congregation, in and near the city of Philadelphia, to his Excellency George Washington, President of the United States, The Philadelphia Inquirer (May 20, 1789), available at http://tinyurl.com/2df6b7e4.] To be sure, other speeches spoke of his election or ascension to the Presidency, but references to his “appointment” were commonplace.

The newspapers also reprinted the President-elect’s response to each elegy, where we see Washington himself employing appointment language to describe his election. He thanked the leadership of Pennsylvania for their “affectionate congratulations . . . on my appointment to the Presidency of the United States.”126 [Letter from the President of Pennsylvania to George Washington, President of the United States, available at http://tinyurl.com/n29ep8am.] To the leaders of Philadelphia, he said he felt “particularly obliged . . . for your congratulatory address on my appointment to the station of the President of the United States.”127 [Id.] In response to praise from the governor of New Hampshire, Washington promised, that “[ i]n discharging the duties of my civil appointment . . . the love of my country will be the ruling influence of my conduct.”128 [See note 122.] He also accepted “with peculiar pleasure, the address of the University of the state of Pennsylvania, upon my appointment to the first office in the Union,” but conceded that he suspected that his “fellow-citizens anticipate[d] too many and too great advantages from the appointment.”129 [See note 124.]

Nor was this appointment-language limited to the celebrations in Philadelphia. Two months later, Vice President John Adams gave a speech on behalf of the Senate, thanking the President for his address to Congress:

We the Senate of the United States return you our sincere thanks for your excellent speech, delivered to both houses of Congress; congratulate you on the complete organization of the federal government, and facilitate ourselves, and our fellow-citizens, on your elevation to the office of President—an office, highly important by the powers constitutionally annexed to it, and extremely honorably from the manner in which the appointment is made. The unanimous suffrage of the elective body in your favor, is peculiarly expressive of the gratitude, confidence and affection of the citizens of America.”130 [Address by John Adams, Vice President of the United States and President of the Senate, to George Washington, President of the United States, available at https://www.newspapers.com/image/399583 ... Vice%20Pre sident%22&match=1. Letter from the Ministers, Churchwardens, and Vestrymen of the German Lutheran Congregation in and near the city of Philadelphia, to George Washington, President of the United States, available athttps://www.newspapers.com/image/3995 ... 22Vice%20P resident%22&match=1.]

In light of these examples, we feel comfortable concluding that the terms appointment and election were truly interchangeable, at least to the extent that an election was one form of appointment.

* * * * *

To summarize, we have shown extensive evidence—including the text of the Constitution itself, early state constitutions, the Articles of Confederation and Journals of the Continental Congress, and statements to and from George Washington, John Adams, and James Madison—to demonstrate a consistent linguistic pattern of using the words “appoint” and “elect’ interchangeably. In light of this, we feel confident in rejecting “the distinction [Blackman, Tillman, and others] dr[a]w between elected and appointed federal positions.”

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Part 3 of 5

C. The Text of the Constitution Identifies the Presidency as an Office

Third, the original Constitution of 1789 repeatedly refers to the Presidency as an “Office” — a fact that is undisputed. For example, in Article I, it states “The Senate shall chuse . . . a President pro tempore, in the absence of the Vice President, or when he shall exercise the office of President of the United States.”131 [U.S. Const., art I, sec. 3.] Likewise, in Article II, it states that the President “shall hold his Office during a Term of four Years” and limits eligibility “to the Office of President” to “natural born citizens” who have “attained the age of thirty-five years.”

In an amicus brief submitted to the Colorado Supreme Court, Tillman acknowledges this. But he claims that “although the President holds an ‘office,’ he is not an ‘Officer of the United States.’”132 [Seth Barrett Tillman, Brief Submitted by Professor Seth Barrett Tillman as Amicus Curiae in Support of Intervenor-Appellant/Cross-Appellee Donald J. Trump, Anderson v. Griswold, Supreme Court Case No. 2023SA300 (Colo. Nov. 27, 2023, 1:13 PM) (filed by Reisch Law Firm, LLC and Josh Blackman et al.), 2023 WL 8188397, Available at SSRN: https://ssrn.com/abstract=4644676.]

We find this distinction difficult to square with early case law. In United States v. Maurice—an important Appointments Clause case Chief Justice John Marshall heard while riding the Circuit—Chief Justice Marshall concluded that “an office is defined to be a public charge or employment, and he who performs the duties of the office, is an officer. If employed on the part of the United States, he is an officer of the United States.”133 [Seth Barrett Tillman, Brief Submitted by Professor Seth Barrett Tillman as Amicus Curiae in Support of Intervenor-Appellant/Cross-Appellee Donald J. Trump, Anderson v. Griswold, Supreme Court Case No. 2023SA300 (Colo. Nov. 27, 2023, 1:13 PM) (filed by Reisch Law Firm, LLC and Josh Blackman et al.), 2023 WL 8188397, Available at SSRN: https://ssrn.com/abstract=4644676.] While not binding precedent, Maurice was frequently cited by lower courts both before and after the ratification of the 14th Amendment and has been cited approvingly by the U.S. Supreme Court seventeen times, including in the majority opinion of Metcalf & Eddy v. Mitchell,134 [Metcalf & Eddy v. Mitchell, 269 U.S. 514, 520 (1926) (“The term ‘officer’ is one inseparably connected with an office.”).] and more recently in Justice Thomas’ concurring opinion in Lucia v. SEC. Blackman and Tillman have repeatedly quoted Justice Felix Frankfurter’s quip that when language is “obviously transplanted from another legal source”—as the phrase “Officers of the United States” in Section 3 clearly is—“it brings the old soil with it.”135 [Blackman & Tillman, supra n. 5, at 23 (citing United States v. Castleman, 572 U.S. 157, 176–77 (2014) (Scalia, J., concurring) (quoting Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 COLUM. L. REV. 527, 537 (1947))).] We see no reason why that soil should not include Chief Justice Marshall’s early definition of an officer of the United States explicitly linking offices with officers.136 [Critiquing a previous draft of this paper, Blackman and Tillman argued that “Marshall limited the construction of the phrase ‘officer of the United States’ to ‘an individual [who] is appointed by government.’” Josh Blackman & Seth Barrett Tillman, ‘A New, Rushed, Flawed Article In The Section 3 Debate,’ Reason—Volokh Conspiracy (Jan. 4, 2024, 3:50 PM), <https://reason.com/volokh/2024/01/04/a-new-rushed-flawed-article-in-the-section-3-debate/>, <https://ssrn.com/abstract=4684487>. We do not disagree. Presidents are appointed by the Electoral College, which is just as much an organ of the government as Congress or the Secretary of State is. Blackman and Tillman’s argument is based on the assumption that there is a rigid distinction between appointments and elections, which we have already shown to be a linguistic anachronism in Part II.B.]

D. Additional context about the original meaning of “officer of the United States” in the 1789 Constitution.

Third, we find Blackman and Tillman’s textual analysis of the original meaning of the phrase “officers of the United States” to be incomplete because it overlooks important contextual details. The phrase appears in the original Constitution of 1789 four times: in the Appointments Clause, the Impeachment Clause, the Oath and Affirmation Clause, and the Commission Clause. Context leads us to disagree with Blackman and Tillman’s readings of three out of four of these clauses. Along the way we critique the argument recently presented that suggests the President is not an Officer of the United States because he does not take an oath that has the words “support the Constitution” drawn from Article VI of the Constitution.

1. Appointments Clause

With respect to the Appointment Clause, it is not true that the Constitution empowers the president to appoint “Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States,” as has been asserted by Trump. He only has the authority 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.” We think the most natural reading of this proviso is that at least some of the other positions specifically enumerated elsewhere in the Constitution are (1) officers of the United States and (2) are potentially appointed through alternative channels other than those spelled out in the Appointments Clause.

We are not alone in that view. One of the original students of the Constitution, Alexander Hamilton, paraphrased the Appointments Clause for Federalist 67 as follows:

The second clause of the second section of the second article empowers the President of the United States "to nominate, and by and with the advice and consent of the Senate, to appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other OFFICERS of United States whose appointments are NOT in the Constitution OTHERWISE PROVIDED FOR, and WHICH SHALL BE ESTABLISHED BY LAW."137 [The Federalist 67 (Alexander Hamilton). (Capitalization in original.)]

The capitalization—which was in the original—shows that Hamilton viewed the phrase “whose appointments are not herein otherwise provided for” as a modifier of “officers,” and that that the phrase is making reference to officers mentioned elsewhere in the Constitution outside of the Appointments Clause.

Justice Antonin Scalia also reached this conclusion. Writing a concurrence in Noel Canning v. NLRB, Justice Scalia explained: “Except where the Constitution or a valid federal law provides otherwise, all ‘Officers of the United States’ must be appointed by the President ‘by and with the Advice and Consent of the Senate.’”138 [NLRB v. Noel Canning, 573 U.S. 513, 569 (2014) (Scalia, J., concurring).] Thus, Justice Scalia stated that there are Officers of the United States listed in the Constitution but not appointed by the President. Tillman actually wrote the Justice to ask what he meant by this statement. Justice Scalia surprised him by responding and left no doubt as to his position:

I meant exactly what I wrote. The manner by which the President and Vice President hold their offices is “provide[d] otherwise” by the Constitution. As is the manner by which the Speaker of the House and the President Pro Tempore of the Senate hold theirs.139 [Letter from Hon. Antonin Scalia, U.S. Sup. Ct. J., to Seth Barrett Tillman, Lecturer at Nat’l University of Ireland Maynooth (emphasis added), available at: https://perma.cc/JX3Z-DDYB.]

The same view was taken by Professor Thomas Merrill in a 2004 article, although he did not specifically mention the President and Vice President like Justice Scalia did.140 [Thomas W. Merrill, Rethinking Article I, Section 1: From Nondelegation to Exclusive Delegation, 104 COLUM. L. REV. 2097, 2136 n.157 (2004) (“This Appointments Clause provides that the President shall appoint ambassadors, judges, ‘and all other Officers of the United States, whose Appointments are not herein otherwise provided for. .. .’ The most likely referent of "herein otherwise provided for" would be the Members of Congress, whose method of appointment is detailed in Article I.”).]

Blackman and Tillman disagree, arguing for an alternative reading of “whose appointments are not herein otherwise provided for” in their third article in their ten-part series on Office and Officers:

The phrase . . . is admittedly a mouthful. We think this phrase tells the reader that the appointment of “Officers of the United States” is limited to the processes announced in Section 2. This sub-clause directs the reader not to scour the remainder of the Constitution for other provisions that provide authority to fill other federal “Officers of the United States” positions—by election or appointment. In other words, the Appointments Clause’s “not herein otherwise provided for” language is not an invitation to search for other constitutional provisions providing authority to create or fill federal offices; rather this language puts the reader on notice that no such constitutional provisions exist beyond the textual bounds of Article II, Section 2.

In their view, anyone advocating for an “alternative reading that leads readers to look for other constitutional mechanisms to fill ‘Officers of the United States’ positions is mistaken.” They critique the statements of both Hamilton and Scalia mentioned above, calling the former unclear141 [Blackman & Tillman, supra n. 74, at 444 (“We do not know for certain why Hamilton made this modification to the text of the Appointments Clause. Nor can we be sure that Hamilton intended this revision to advance any substantive arguments.”).] and the latter wrong.142 [Id/ at 448. (“We have some trepidation with stating that Justice Scalia, whose correspondence is sorely missed, was mistaken. But on balance, Scalia’s short statement does not hold up. Even Homer sometimes nods.”).]

But why? Because if Hamilton, Scalia, and Merrill are correct, the other officers “whose appointments are . . . provided for” elsewhere in the Constitution almost certainly includes at least some positions who are elected, either by the people or a multi-member body such as the Electoral College or legislature, as shown in Table 1 below.

Position / Appointment Mechanism

Members of the House of Representatives / “Chosen every second Year by the People of the Several states”143 [U.S. Const., art. I, sec. 2.]

Electors [of Members of the House] / “Shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.”144 [Id.]

Speaker and other Officers of the House145 [Id.] / Chosen by House

Senators / “[C]hosen by the Legislature [of each state]”146 [U.S. Const., art. 1, sec. 3.]

President Pro Tempore and “Other Officers” of the Senate / Chosen by the Senate147 [Id.]

President of the United States / Electoral College148 [U.S. Const., art. 2, sec. 1.]

Vice President / Electoral College149 [Id.]

Electors for President and Vice President / “[ i]n such Manner as the Legislature thereof my direct.”150 [Id.]

As Blackman and Tillman explain, in their view “[o]nly appointed positions can be ‘Officers of the United States,’ i.e., positions ‘whose Appointments are not herein otherwise provided.’ Therefore, it would be a mistake to scour the Constitution for positions that are filled by election.” Professor Chad Squiteri reached a similar conclusion for similar reasons:

Article II, Section 2, Clause 2’s reference to “Appointments . . . not herein otherwise provided for” should not be understood as a reference to [other positions such as] Members of Congress. Instead, the use of ‘herein’ in Article II, Section 2, Clause 2 is best understood as a reference to Article II, Section 2, Clause 2 itself. Specifically, when Article II, Section 2, Clause 2 states “herein,” it references the types of appointed officers mentioned within the very same clause – i.e., “Ambassadors, other public Ministers and Consuls, Judges of the supreme Court.”151 [Chad Squitieri, Towards Nondelegation Doctrines, 86 MO. L. REV. 1239, 1263 (2021).]

For this reason Squiteri did not feel that “Members of Congress” could be officers of the United States:, “Article I does not speak to the ‘appointment’ of Members of Congress – it speaks to their election.”152 [Id. at 1262.]

But we have already shown that the “the distinction [these scholars draw] between elected and appointed federal positions” is a linguistic anachronism that did not exist at the time of the Founding. The Articles of Confederation, Journals of the Continental Congress, state constitutions, various founding fathers including George Washington, John Adams, and James Madison—not to mention the text of the Constitution itself—all used the terms “appoint” and “elect” interchangeably, at least to the extent that an election was a valid form of appointment. Once one understands this linguistic convention, we think the meaning of “whose Appointments are not herein otherwise provided for” is clear and see no reason that it would not include the President.

But what about Chief Justice Roberts’ statement in Free Enterprise that Blackman and Tillman frequently invoke to support their conclusion that officers of the United States cannot be elected: “[t]he people do not vote for the ‘Officers of the United States’”?153 [Even if Chief Justice Roberts was wrong in his conclusion that “officers of the United States” cannot be voted upon, this would not undermine his conclusion that the Constitution forbids the granting of executive power without the Executive’s oversight.] We do not think that our reading of the Appointments clause is at odds [with] Roberts’ statement. The people don’t vote for the President, the Electoral College does!154 [In a critique of a previous version of this article, Blackman and Tillman cite a number of quotes by Chief Justice Roberts, including elsewhere in Free Enterprise (“But where, in all this, is the role for oversight by an elected President?”), Seila Law (“. . . but that authority remains subject to the ongoing supervision and control of the elected President”), and Trump v. Vance (“[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."), to show that the Chief Justice would “disagree” with our position. Blackman & Tillman, supra n. 136. But all of these quotations are irrelevant. We have never suggested that the President is not elected, only that he is (1) elected by the Electoral College and that (2) elections by multi-member bodies is a mode of appointment well attested to in the Founding Era. The only position in Table 1 that Chief Justice Roberts’ statement in Free Enterprise would eliminate are Members of the House of Representatives, which is an issue we take no position on.] As our discussion in Section II.B and Appendix A and B demonstrates, there was a long history of multimember bodies “appointing” chief executives (and other officers) by ballot. That is exactly the process followed by the Electoral College. If the 152-member Virginia Legislature could “appoint” a judge, surely the Electoral College—which in 1789 had only 69 members—could “appoint” a President and Vice President as well.

There is a second reason we disagree with Blackman and Tillman’s reading of the Appointments Clause: it would limit the scope of the word herein to just that specific clause. And while that may not sound totally absurd when looking at the Appointments Clause alone, it makes no sense in the two other places the word appears in the Constitution. Take for example, the direct tax clause in Article I, Section 9: “No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or enumeration herein before directed to be taken.” There are only two other references to an enumeration or census in the 1789 Constitution, neither of which is in Article I, Section 9. They’re earlier, side-by-side in Article I, Section 2! The third and final use of the word herein is in the first sentence in the Constitution following the Preamble: “All legislative Powers herein granted shall be vested in a Congress of the United States[.]” Such a narrow construction of herein there would completely destroy the Separation of Powers. Surely, Blackman and Tillman are not suggesting that there might be some legislative powers reserved for the President in Article II, so we are not sure why they insist on such a narrow construction of the inverse phrase in the Appointments Clause.

2. Impeachment Clause

We likewise are unpersuaded by Blackman and Tillman’s reading of the impeachment clause. They conclude that the “the president and vice president’s [express] enumeration in the Impeachment Clause in addition to ‘all civil Officers of the United States’ shows that the president and vice president are not deemed ‘officers of the United States’ themselves.” We concede that this is a plausible reading of the clause, [but] we do not think it is the best reading. In English, this grammatical construction is often used to highlight the most important or most famous member of a broader group. Consider the following actual line from a 1963 speech given by Congressman Hale Boggs of Louisiana on the floor of the House of Representatives: “He leads the orchestra when his records are playing. He’s Dave Seville and Alvin and all the Chipmunks. He dances the twist like his life depended on it.”155 [109 Cong. Rec. A7410 (Dec. 4, 1963).] Was Representative Boggs really suggesting that Alvin was not a chipmunk? Or consider this line from an article from the Detroit Free Press: “[Vice President] Pence told Hannity Monday that all of his discussions with Zelensky, and all of the administration’s contacts, ‘were based upon proper considerations of how we support Ukraine.”156 [It should be noted that the “Alvin and the Chipmunks” convention was employed at the time of the 14th Amendment, as well. For example, in a dispatch, Secretary of War Edwin M. Stanton stated “The duties of the President, his Secretary, and every officer of the Government and especially in the War Department and military service, are at this moment urgent and solemn duties.” If not for the Chipmunk convention, one might be forced to conclude that the Secretary of War was not an officer of the Government! Edwin M. Stanton, Arrest of a Newspaper Spy, Boston Evening Transcript, Pg. 2 (Feb. 11, 1862). Likewise, Senator Timothy O. Howe of Wisconsin quoted and summarized a letter from W.L Sharkey to Secretary of State William H. Seward “in which he tells him that the Governor and all the officers elected by the people had been duly installed, qualified, and taken possession of their offices.” 1866 Cong. Globe 3042. Context makes clear that the governor was an officer “elected by the people” in the same way that the President is an “officer of the United States.”] Surely, the article wasn’t suggesting that President Zelensky was not one of the Trump administration’s contacts.

Nor is this construction a modern development. It appears frequently in documents from the Founding Era. Consider the closing line from a letter sent from General Charles Lee to his Commander-in-Chief: “My love to Mrs. Washington and all the Ladies–Adieu.”157 [Letter from Major General Charles Lee to George Washington (Feb. 19, 1776), available at https://founders.archives.gov/documents ... 03-02-0242.] General Lee and General Washington may have had their differences, but Lee was clearly not suggesting that his commanding officer’s wife was not a “lady.” Likewise, one set of General Orders signed by Washington in 1777 stated, “The Commander in Chief thanks the Majors General Sullivan and Greene, and all the officers, and soldiers, engaged this day, to pursue the enemy, for their alacrity and zeal manifested in that service.”158 [George Washington, General Orders (June 22. 1777), available at https://founders.archives.gov/documents ... 10-02-0104.] Per Blackman and Tillman’s logic, we would have to conclude that Washington was suggesting that neither Sullivan—one of the heroes of the Battle of Trenton—nor Greene—the Continental Army’s Quartermaster-General—were “officers.” We think not.

The fact that Justice Joseph Story also felt that the language of the Impeachment Clause “would rather lead to the conclusion that they were enumerated, as contradistinguished from, rather than included in the description of civil officers of the United States” does not dissuade us. Others have suggested that this express enumeration might be because the President as Commander-in-Chief, and the Vice President with his potential to serve as Acting President, are not strictly speaking civil officers of the United States, but rather both military and civil officers. We think this interpretation is compelling, but also not necessary. While we are loath to disagree with Justice Story, we do not think he was infallible.

Context matters here. And we think that context points to the best reading of the Impeachment Clause being that the President and Vice President being [are] the two most important members of the broader category “officers of the United States” — the Alvin among the proverbial Chipmunks.

This is like Mount Fuji's being concealed by a tree thick with branches and leaves, and my not being able to see it. But how can Mount Fuji be concealed by a single tree? It is simply because of the narrowness of my vision and because the tree stands in the way of my vision that Mount Fuji cannot be seen. We go on thinking that the tree is concealing Mount Fuji. Yet it is due to the narrowness of my vision.

-- The Unfettered Mind: Writings of the Zen Master to the Sword Master, by Takuan Soho, (Translated by William Scott Wilson)

3. The Presidential Oath and the Article VI Oath

In their latest article, Blackman and Tillman reference an argument from the litigation. That argument begins with the premise that the President takes an oath to “preserve, protect, and defend” the Constitution, found in Article II, and does not take the oath to “support” the Constitution, found in Article VI. Because Section 3 refers to officers who have “previously taken an oath … to support the Constitution of the United States,” the President, the argument goes, has not taken such an oath and is not in the scope of Section 3.

This argument does not persuade us. In the first place, we are confident that one cannot take an oath to “preserve, protect, and defend” the Constitution without implicitly swearing to “support” the Constitution. By swearing to preserve, protect and defend the Constitution, one swears to support it more.

Evidence from the time of the 14th Amendment confirms our view. Recall that Section 3 extended to any “person… who, having previously taken an oath, … as an executive or judicial officer of any State, to support the Constitution of the United States” and subsequently engaged in insurrection.159 [U.S. Const. Amend. XIV, s 3.] Thus, no one doubts that executive officers in the Southern states— for example, South Carolina— who had taken an oath prior to the rebellion, were covered by Section 3.

But when you look at the oath South Carolina officers were required by the South Carolina Constitution to take, the language mirrors the Presidential Oath, not the Article VI Oath:

Every person who shall be chosen or appointed to any office of profit or trust; before entering on the execution thereof, shall take the following oath: "I do solemnly swear, (or affirm), that I will be faithful, and true allegiance bear to the State of South Carolina, so long as I may continue a citizen thereof; and that I am duly qualified, according to the constitution of this State, to exercise the office to which I have been appointed; and that I will, to the best of my abilities, discharge the duties thereof, and preserve, protect, and defend the constitution of this State, and of the United States: So help me God.160 [S.C. Const. of 1790, art. IV (emphasis added). This Article was written in 1790 and was modified in 1834. Both versions of the oath have “preserve, protect, and defend”-- and not “support.”]

A newspaper transcript confirms this is the one and only oath that Governor William Henry Gist took in 1858.161 [1858 Inauguration of SC Governor, The Charleston Daily Courier (Dec. 15, 1858), available at , https://www.newspapers.com/embed/138077880/.] Governor Gist went on to sign South Carolina’s Ordinance of Secession.162 [The Ordinance of secession for the state of South Carolina (Dec. 20, 1860) https://www.gilderlehrman.org/collection/glc00395 (signed as Wm. H. Gist).]

Given no one doubts Section 3 was to apply to Governor Gist and other South Carolina rebels, it is clear that the drafters of the 14th Amendment viewed an oath to “preserve, protect, and defend” the United States Constitution as inherently an oath to “support” the United States Constitution. Any other reading of Section 3 appears absurd to us.

And South Carolina is not the only state. As documented in Appendix C, it appears Florida also had an oath that mirrored the Presidential oath, not the Article VI oath. Georgia’s oath for its governor likewise mirrored the Presidential oath, while other officers received an oath that mirrored the language of Article VI.163 [We note here Georgia appears lax in enforcing Section 3. Georgia Governor Joseph E. Brown took an oath as governor prior to the war, participated in the rebellion, rapidly regained favor with the Union, and then served as Georgia Supreme Court Chief Justice before and after the enactment of the Fourteenth Amendment. Given the totality of the evidence, we believe this was likely a result of political favoritism towards him or a resistance to the amendment in the deep south, rather than revealing anything about the meaning of Section 3. (The resistance in Georgia to the Union was obvious: Georgia elected Alexander H. Stephens, former member of the US House of Representatives and then Vice President of the Confederacy, to the Senate in 1866. The Senate refused to seat him even before the ratification of the 14th Amendment. He later served as Governor of Georgia after the passage of the Amnesty Act of 1872.)]

We also note that, in Florida, the constitution was drafted as a prerequisite to admission into the union. Thus, Congress viewed Florida’s antebellum Constitution, complete with its “preserve, protect and defend” language, as acceptable language to satisfy Article VI’’s “support” requirement. The Presidential oath, just like the oaths in Florida, Georgia, and South Carolina, qualifies as an oath under Section 3 of the Fourteenth Amendment.

For the sake of completeness, we cite the Texas Constitution’s oath, again approved by Congress prior to Texas’ admission. Ignoring a section about dueling, the oath reads in full: “I, (A. B.) do solemnly swear (or affirm) that I will faithfully and impartially discharge and perform, all the duties incumbent on me as ------------, according to the best of my skill and ability, agreeably to the Constitution and laws of the United States and of this State[.]”164 [Tex. Const. Art. XII (1869).]

If we were writing on a blank slate, we would doubt that an oath to “discharge and perform all the duties… agreeably to the Constitution” has the same vigor as an oath to either “support” or “preserve, protect, and defend” the Constitution. But this is not a blank slate: several Texans took an oath under their state Constitution to “discharge and perform all the duties… agreeably to the Constitution” and then forced Governor Sam Houston (who was loyal to the union) out of office as a part of joining the confederacy.165 [See, e.g., Kate Galbraith, Sam Houston, Texas Secession — and Robert E. Lee, The Texas Tribune] They were obviously covered by Section 3. There is no basis for arguing the President is not covered by Section 3 because his oath is, if anything, more rigorous than the requirement to “support” in Article VI: “preserve, protect, and defend.”

But the problems with the argument that the President does not take an Article VI oath did not die with the confederacy. Today, South Carolina166 [See Municipal Association of South Carolina, Handling the Oaths of Office Correctly, available at: https://www.masc.sc/uptown/10-2022/hand ... correctly; LIVE: South Carolina Gov. Henry McMaster swearing-in ceremony, https://www.youtube.com/watch?v=RiRYckpw-FA (oaths administered at timestamps 1:17:00. 1:19:30, and 1:30:00).], Georgia167 [Inaugurations of Georgia Gov. Brian Kemp, Lt. Gov. Burt Jones. https://www.youtube.com/watch?v=1WC-cdZGYxk (oaths administered at timestamps 52:00; 53:50, and several other subsequent oaths starting at 1:08:30).], and Texas168 [WATCH LIVE: Greg Abbott sworn into 3rd term as governor of Texas https://www.youtube.com/watch?v=DHk1nHCD6s0 (Oath administered at timestamp 21:00’ 49:30).], all administer a "Preserve, Protect, and Defend" oath to at least some of their officers, Oaths that do not include the word support. Near as we can tell from videos of the inaugurations, these officials, like Governor Gist in 1858, only take one oath. Were this enough to avoid taking an Article VI and Section 3 oath, numerous state officials today would be exempt from Section 3 even if they someday participate in an insurrection.169 [Critiquing an earlier draft of this article, Blackman and Tillman suggest the possibility that "state officials took both the oath specified by the federal Oaths Act of 1792 and the oath specified by Article IV of the S.C. Constitution." See Blackman & Tillman, supra n. 136. As the reader observes, we have added additional sources to this section that foreclose their hypothesis, both in antebellum South Carolina and in modern practice.]

Blackman and Tillman rely on parallels between the structure of the Oath and Affirmation Clause of Article VI and Section 3 to suggest that the drafters used the Oath and Affirmation Clause as a model for Section 3. We have no quarrel with that. But because the presidential oath, like oaths of some state officers, is an oath to support the constitution through the language “preserve, protect, and defend,” we make two suggestions. First, it is entirely possible that the President is mentioned as an officer in Article VI, as the President is “bound by Oath or Affirmation, to support this Constitution[.]”170 [ .S. Const. Art. VI.] He simply takes the more specific presidential oath to do so. Second, because we've already shown that oaths to "support" include oaths to "preserve, protect, and defend" and oaths to act “agreeably” we should be slow to read terms in Section 3 narrowly because they were (supposedly) used narrowly in the Oath and Affirmation Clause.

4. Commission Clause

Blackman and Tillman’s best evidence comes from the Commission Clause. It is true that Section 3 of Article II of the Constitution states that the President “shall Commission all the Officers of the United States.” If viewed alone, this might be a silver bullet. But as mentioned above, the Appointments Clause indicates that there are other Officers of the United States whose appointment mechanisms are provided for elsewhere in the Constitution. But none of the officials listed in the table above receive presidential commissions. This produces a bit of a conundrum. If Blackman and Tillman are right that officials that do not receive commissions cannot be “officers of the United States,” then the Appointments Clause contains a meaningless surplusage. By contrast, if the phrase “whose Appointments are not herein otherwise provided for” is not surplusage, then either all does not mean all or the Commission Clause has not been liquidated appropriately and other officials—including the President and Vice President—should receive a Commission.

One way out of this Mexican standoff is to not read the Commission Clause literally. As Professor Lawrence Solum has noted, originalism is not literalism.

[A] grave misunderstanding of contemporary formalism is the idea that formalists are seeking the literal meaning of legal texts, and nothing could be further from the truth. And that's because once we become acquainted with the philosophy of language, we realize that verbal communication, oral communication, written communication does not rely on words and punctuation marks alone to convey meaning, it also relies on context.

We almost never say, explicitly, everything we wish to convey. Instead, we rely on a mutual recognition of reader or listener and author or speaker of the context of communication to fill in the gaps.

So a famous example from the philosophy literature, Jack and Jill are married. And most of the time, we fill in that utterance with to each other. Because usually, when you say Jack and Jill are married, you mean to each other, although there are contexts where you might say those words in order to convey that Jack and Jill are actually married to other people [i.e. “I saw Jack and Jill coming out of the hotel room together, but Jack and Jill are married!”]

In the law, it is the same. Context does much of the work of legal communication.

We think that the context suggests that the Commission clause should be understood to read the President “shall commission all the officers of the United States” other than himself or perhaps “shall commission all of the officers of the United States” that he appoints. While critics will argue that this is circular reasoning, we think it is superior to the alternative reading promoted by Blackman and Tillman and President Trump which views a whole clause of the Constitution as a mere “inkblot.”171 [The Nomination of Robert H. Bork to Be Associate Justice of the Supreme Court of the United States, Hearing before the Committee on the Judiciary,100th Cong, 1st Sess 249 (1987) (statement of Robert H. Bork) (discussing the Ninth Amendment).]

* * * * *

In sum, we believe context matters, and the added context we’ve added here calls into question the conclusion that the 1789 Constitution implies that the President was not an Officer of the United States.

III. A Primer on Linguistic Drift

While our own review of the evidence from the Founding Era leads us to firmly conclude that the original public meaning of the term “officer of the United States” included the President and Vice President, we agree with Blackman and Tillman that “it is the sort of question on which dispassionate, reasonable minds can disagree after having reviewed competing streams of authority, argument, and evidence.”172 [Josh Blackman & Seth Barrett Tillman, Sweeping and Forcing the President into Section 3, 28 TEX. REV. L. & POL. 350 (forthcoming 2024) (manuscript at 189).] As we noted above, at a minimum the Appointments Clause and Commission Clause are in tension with each other, and some sort of saving construction is necessary to harmonize the two.

We likewise appreciate Blackman and Tillman’s open mindedness about the possibility that the phrase “officer of the United States” could have undergone “some linguistic drift or slippage between the 1788 ratification of the Constitution and the 1868 ratification of the Fourteenth Amendment.” As they explain in their 2021 article:

Let’s assume that the President is not an “officer[] of the United States” for purposes of the 1788 Constitution. Under that assumption, it is still possible that the President might be an “officer of the United States” for purposes of Section 3. Thus, a reader might take the limited position that the President is an “officer of the United States” for the purposes of Section 3’s jurisdictional element.

This position is conceivable. Indeed, more than a decade ago, Tillman suggested that linguistic drift may have occurred with respect to this phrase between 1788 and 1868. He wrote that “[t]he stretch of time between the two events [1788 and 1868] was more than half a century. . . . It is hardly surprising that in the post-bellum epoch new meanings might have accrued to older language. Such linguistic slippage is common.” . . . Absent contrary evidence, [however] the default presumption should be one of linguistic continuity, rather than a presumption of linguistic drift. In other words, the proponents of the view that Section 3’s jurisdictional element applies to the presidency have the burden to prove two propositions. First, proponents must show that the particular linguistic drift involving the Constitution’s “officer of the United States”-language had actually occurred. And second, proponents must show that Section 3’s “officer of the United States”- language, in fact, drifted to include the presidency. In other words, even if the meaning shifted over time, it is not self-evident that the shift would embrace the presidency. Both propositions must be proven.173 [Blackman & Tillman, supra n.5, at 25-26.]

Although we continue to respectfully disagree with Blackman and Tillman about the original meaning of the phrase “officer of the United States” in the original Constitution— and therefore believe that “linguistic continuity” favors holding that the President is an “officer of the United States” —we will devote the remainder of our article to marshaling evidence to demonstrate that even if they are correct about the meaning of the phrase in 1788, by 1865 the phrase had morphed to include elected officials, including the President of the United States.

But first, it is important to understand what we mean by “linguistic drift.” The phrase was coined by Edward Sapir—an American anthropologist and linguist—back in 1921 when he observed:

The drift of a language is constituted by the unconscious selection on the part of its speakers of those individual variations that are cumulative in some special direction. This direction may be inferred, in the main, from the past history of the language. In the long run any new feature of the drift becomes part and parcel of the common, accepted speech, but for a long time it may exist as a mere tendency in the speech of a few, perhaps of a despised few.174 [(Sapir 1921:147).]

It is difficult to be able to discern exactly when a word reaches its “tipping point,” the moment in which the meaning that was favored initially by just “a despised few” becomes the prevailing norm. There is an analogy here to the difficulty courts face in determining when a registered trademark has gone generic. Even though many people use the word “coke” to refer to any soda, it is still largely a reference to the principal product of the Coca-Cola company. But the same is true after the tipping point has been reached. Even after the word “trampoline” and “escalator” reached a point of genericide, there were likely still those who used those words in their branded sense for some time.

Thus, we are not surprised that Blackman and Tillman have identified a few sources from around the time that the Fourteenth Amendment was ratified that use the phrase “officer of the United States” in a way that excludes the President. Whether these are vestiges of an earlier understanding of the phrase—as Blackman and Tillman suggest—or early-adopters of a linguistic innovation doesn’t matter. As the subsequent sections will show, we think that at the time the 39th Congress convened to draft the 14th Amendment, the public meaning of the phrase included the President of the United States.

IV. Evidence that Officers (Including Officers of the United States) May Be Elected

Blackman and Tillman assert that one of the principal reasons that the President cannot be an officer of the United States is because officers are appointed, not elected.175 [Blackman & Tillman, supra note. 5, at 26, 29, 32; Blackman & Tillman, supra note 40, at 548; Tillman, supra n. 132, at 22-23; Blackman & Tillman, supra note 74.] They are not alone in this view. Professor Steven Calabresi—a long-time Trump critic—has advanced similar arguments.176 [Calabresi, supra note 76.] However, as shown in Sections II.B above, this position is based on a linguistic anachronism. At the time of the Founding, the strict dichotomy between “appointments” and “elections” that we employ today did not exist. Rather, an election—either by the people or a multi-member body such as a legislature or the electoral college—was viewed as one potential mode of appointment.

That officers could be elected at the time the 14th Amendment was ratified was even more clear. In the following section, we will detail evidence gleaned from the text of the Amendment itself, legislative history of the 14th and 15th Amendments, the ratification debates in the states, and other sources that show that people regularly talked of officers being “elected.” We note that in each of the subsequent sections, we have not limited ourselves to explicit references to “officers of the United States.” While we acknowledge that this is the best evidence, because we do not find the term “officers of the United States” to be a term of art, we believe that clear references to federal officers, officers generally, or analogous state officers are still relevant for understanding the original meaning of “OFFICERS of the United States” as used in Fourteenth Amendment, as we discussed in greater detail in Section II.A.

A. Evidence from the text of the Fourteenth Amendment

The best evidence that at the time of the ratification of the Fourteenth Amendment the word “officers” was understood to encompass elected officials is the text of Section 3 itself:

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, 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.

Most of the scholarship about the scope of Section 3 of the Fourteenth Amendment has focused exclusively on federal officers, without considering the analogous state positions.177 [CITE.] But having shown that “officers of the United States” was not a legal term of art at the time of the Founding,178 [Infra nn. ____-____ and accompanying text.] the selection mechanism for the parallel state officials mentioned in Section 3 is equally valid evidence for whether “officers” can be elected as a general matter. This is especially true if Blackman and Tillman are right that “Section 3 was modeled after the structure and language of the Oath and Affirmation Clause.”179 [Blackman & Tillman, supra note 5, at 6.] The parallel structure and language of the Oath and Affirmation Clause presents Officers of the United States and Officers of the several states as closely analogous positions: “The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution.” 180 [U.S. Const., art. VI.]

As noted above and shown in detail in Appendix A, at the time the original Constitution was ratified, few states had a Governor elected directly by the people. The rest had their governors selected by the state’s General Assembly, usually through a ballot process that resembled (and perhaps inspired) the Electoral College. However, by the time the 14th Amendment was ratified, these facts had changed considerably. By 1865 the vast majority of states had governors elected directly by the people!

A similar evolution took place with respect to judicial officers. As shown in Appendix B, at the time of the Founding, judicial elections—at least as we conceptualize them today—were unheard of. Instead, judges were typically selected by the General Assembly, appointed by Governors, or were themselves legislators wearing a separate hat. But as Harvard Law Professor Jed Handelsman Shugerman has noted, beginning in the 1840s, America experienced something of a Constitution-writing renaissance, with many states adopting amendments or rewriting their constitutions entirely, introducing judicial elections in the process as part of a broader set of anti-legislative reforms.

The constitutional revolutionaries of the time believed elected judges were more likely to enforce limits against legislative excesses. From 1846 to 1851, twelve states adopted judicial elections for their entire court systems, and five states adopted partially elective systems. By 1860, out of thirty-one states in the Union, eighteen states elected all of their judges, and five more elected some of their judges. There were also proposals to subject federal judges to election, but the federal constitution was far more difficult to change.181 [Jed Handelsman Shugerman, THE PEOPLE’S COURTS 105 (2012).]

In fact, the language of Section 2 of the 14th Amendment acknowledges this evolution explicitly. Section 2 abolished the Three-Fifths Compromise of the original Constitution, replacing it with a fairer calculation for representation: “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.” In an effort to prevent Southern states from disenfranchising African Americans, the Amendment then ties future representation to the number of eligible voters.

But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.182 [U.S. Const., Amend. XIV, Sec. 2.]

“The right to vote at any election for the choice of . . . the Executive and Judicial officers of a state” . . . it’s difficult to be more explicit that officers can be elected than that.

Thus even if Blackman and Tillman were right about officers not being elected at the time of the Founding, we think these seismic changes of state constitutional law between 1789 and the outbreak of the Civil War would have necessitated an evolution of the meaning of “officers” generally to include elected officials.

B. Evidence from the Legislative History of the Fourteenth Amendment

Another rich source of evidence that the officers mentioned in the Fourteenth Amendment included elected officials is the legislative history produced by Congress while debating the merits of the Amendment. In citing this evidence, we are well aware—and agree with—much of the criticism about over-reliance on legislative history.183 [For a summary of criticisms of legislative history, see Brett Hashimoto and James Heilpern, Solving the Cherry-Picking in Legislative History Use, 12 J. L. & Language 48, 51-54 (2023).] But in this and subsequent sections, we are not invoking legislative history in an attempt to divine Congressional intent. Instead, we are looking for clues about the way Congress used certain words and phrases. As Judge Frank Easterbook, one of the great critics of the use and abuse of legislative history once stated, “Clarity depends on context, which legislative history may illuminate. The process is objective; the search is not for the contents of the authors’ heads but for the rules of language they used.”184 [In re Sinclair, 870 F.2d 1340 (7th Cir. 1989).] (In re Sinclair, 1989: 1343).

In total, we found statements from at least ten Senators and six Congressmen that suggest that according to “the rules of language they used” the word “officer” included elected officials. One of these statements included explicit references to “Officers of the United States.” Senator Thomas A. Hendricks of Indiana proposed a change to the language of Section 3 that would have limited those barred from holding office in the future to those who entered the rebellion while they were still officers of the United States or one of the States. The reason was because he felt that a individual’s Oath of Office expired at the end of each term:

Everybody, by virtue of his allegiance, is bound to obey the Constitution of the United States, to stand by the Union. But this oath of itself is an oath of office binding upon him as an officer, else why is it that if a Senator taking this oath, serves six years and is reelected, he is sworn again? For the simple reason that he is entering upon another term of service, and for that term of service he must take this official oath to obey the Constitution of the United States. I presume this oath means as if it read, "Senators and Representatives and all other officers in the United States and in the States shall be bound by an oath or affirmation to support the Constitution of the United States in their offices." I know of no other purpose that there can be to require a special oath from an officer.”185 [1866 Cong. Globe 2898 (emphasis added).]

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By sweeping Senators and Representatives into the category of “officers of the United States,” he made clear that he believed the category to be broad enough to include positions elected by multi-member bodies (such as Senators) or directly by the people (as with Congressmen).186 [Some may object to this example because Senator Hendricks uses the phrase “officers in the United States” rather than “officers of the United States.” The difference only makes a difference if the Constitutional phrase is a term of art, which we feel the evidence clearly demonstrates it is not. As such, minor variations in the phrase is exactly what you would expect. To dismiss such examples runs the risk of circular reasoning.]

Other statements made clear that the speakers thought that federal officers could be elected, even if they did not use the full phrase “officers of the United States.” Since we have debunked the notion that “officers of the United States” was a legal term of art at the time of the Founding, these synonyms are equally valuable clues as to the intended meaning of the full phrase. Senator Luke Poland of Vermont stated that he felt the Amendment as written was more merciful than the rebels deserved because it preserved their right to vote: “we leave the great mass [of Southerners] utterly untouched, and the leaders with their lives, their property, the full enjoyment of all their civil rights and privileges, with the right of voting for all officers, both State and national, with the single restriction they shall not hold office.”187 [1866 Cong. Globe 2964 (emphasis added).]

A number of these statements came during the debate in the House over an ultimately rejected section which would have stripped former Confederates of the right to vote until 1870.188 [The original language of Section 3 in the House read as follows: “Sec. 3. Until the 4th day of July, in the year 1870, all persons who voluntarily adhered to the late insurrection, giving it aid and comfort, shall be excluded from the right to vote for representatives in Congress and for electors for President and Vice President of the United States.”] For example, future president James A. Garfield—then a Congressman from Ohio—stated: “If the proposition had been that those who had been in rebellion should be ineligible to any office under the Government of the United States, and should be ineligible to appointment as electors of the President and Vice President of the United States, or if all who had voluntarily borne arms against the United States had been declared forever incapable of voting for a United States officer, it would, in my judgment, be far more defensible.189 [1866 Cong. Globe 2463 (emphasis added).] Congressman Robert C. Schenck, also from Ohio, used similar language while supporting the ultimately rejected proposal, claiming that it

does not disfranchise, but refuses to enfranchise. If you say that the people of these States, because of their having been engaged in the rebellion, shall not vote for Federal officers, there is nothing taken from them, because they have already divested themselves of that privilege, voluntarily abandoned, given it up, flung it away by breaking loose from the rest of the Union, as far as by their act, disposition, and power they could do so.190 [1866 Cong. Globe 2470 (emphasis added).]

Likewise, Congressman Henry J. Raymond of New York, stated that the rejected section “proposes to exclude the great body of the people of those States from the exercise of the right of suffrage in regard to Federal officers.”191 [1866 Cong. Globe 2502 (emphasis added).] Representative Rufus P. Spalding of Ohio supported this proposal to “disqualif[y] active and known rebels from participating in the election of Federal officers.”192 [1866 Cong. Globe 2509 (emphasis added).]

There were also a number of other statements that discussed electing officers in general.193 [In highlighting these, we recognize that Blackman and Tillman (and President Trump) do not dispute that some officers can be elected, they just do not believe that officers of the United States specifically can be. But because we do not believe that the full phrase is a term of art, we believe that the contours of the word officer standing alone informs the ordinary meaning of the word in the phrase officers of the United States. See also Brief Submitted by Scholars of Corpus Linguistics as Amici Curiae, Rimini Street v. Oracle, Supreme Court Case (filed by James Heilpern, Gene Schaerr, and Michael Worley). Available at SSRN: https://papers.ssrn.com/sol3/papers.cfm ... id=3288811 (“In layman’s terms, this means that in the relationship between adjectives and their nouns, the noun is king―[a modifier’s] meaning and scope is always relative to the noun it is modifying”).] For instance, while arguing that Section 3 would not impose a punishment on former Confederates, but merely withhold a privilege, Senator Edgar Cowan of Pennsylvania stated that “[a]n elector is one who is chosen by the people to perform that function, just the same as an officer is one chosen by the people to exercise the franchises of an office.”194 [1866 Cong. Globe. 2890 (emphasis added).] Later in the debates he returned to this distinction, asking “is not the elector just as much the choice of the community as an officer is the choice of it, except that the electors are chosen by a class and described by a general designation, whereas the officer is chosen by name to perform certain functions?195 [1855 Cong. Globe 2987 (emphasis added).]

The widespread understanding that officers could be elected was repeatedly highlighted in the back and forth between Senator John B. Henderson of Missouri and Senator William Pitt Fessenden of Maine, as the pair debated an amendment to Section 2 proposed by Henderson. At the time, the language of Section 2 stated that “whenever the elective franchise shall be denied or abridged in any State on account of race or color, all persons of such race or color shall be excluded from the basis of representation.”196 [1866 Cong. Globe 3010 (emphasis added).] Henderson wanted to make the section more explicit, changing the language to read “But whenever the right to vote at any election held under the Constitution and laws of the United States, or of any State, is denied to any of the male inhabitants of such State, &c.”197 [Id.] He stated that “the inference [of this amendment] will be that it applies only to those general elections at which political officers are elected, members of the Legislature, Governor, judges, &c.”198 [Id. (emphasis added).] While Fressenden disputed whether the amendment was really necessary, he clearly agreed that officers could be elected, stating that he believed that the original language was “intended to cover the election of officers generally.”199 [Id. (emphasis added).] Some time later, Senator George Williams of Oregon proposed his own amendment to Section 2 along the same lines, adding words which were ultimately ratified—”But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a State, or members of the Legislature thereof”200 [1866 Cong. Globe 3029.]—in order to (in his words) “specif[y] particularly the officers for which these people must be allowed to vote in order to be counted.”201 [Id. (emphasis added).]

Finally, we found a number of statements that support the proposition that state officers could be elected. While this proposition is hardly controversial—as shown in the last section the language of the 14th Amendment itself acknowledges it as fact—these statements are still relevant evidence for showing that officers as a class—be they federal or state—can be elected. Senator Henderson, after acknowledging that any effort to strip ex-Confederates of the right to vote would be unworkable, stated that under the Amendment, “Lee, Johnston, Wade Hampton, Moseby, and even Jeff Davis, are left as qualified electors, competent to vote for State officers and members of Congress.”202 [1866 Cong. Globe 3036 (emphasis added).] Congressman John A. Bingham—the father of the Fourteenth Amendment—made a similar statement in the House,

This amendment does not disqualify any rebel or aider of the rebellion from voting at all the State elections for all State officers, nor does it disqualify them from being appointed presidential electors. It amounts, therefore, to this: though it be adopted, and made part of the Constitution, yet all persons "who voluntarily adhered to the late insurrection, giving it aid and comfort," may vote at all the State elections for State officers, and, being largely in the majority in every insurrectionary State, may elect the State Legislature, which may appoint electors for President and Vice President of the United States, and from aught in the amendment may appoint rebels as such electors.203 [1866 Cong. Globe 2543 (emphasis added).]

Another example came during a debate over whether Confederate officials who had taken advantage of President Johnson’s general pardon should be barred from holding future office under Section 3. Senator James Doolittle of Wisconsin believed that they should not. To demonstrate that the Amendment would still punish those most culpable, he noted that a number of “prominent rebel officials” remained unpardoned—535 of them—including thirty-seven “cabinet officers and governors of States.”204 [1866 Cong. Globe 2917 (emphasis added).] Senator Hendricks likewise spoke of “judicial officers” being “elected.”205 [1866 Cong. Globe 2899.] Senator Henderson spoke of the people “elect[ing] . . . members of the Legislature, Governor, judges, &c”206 [Id.] as “political officers.”207 [Id.] And Senator Timothy O. Howe of Wisconsin quoted and summarized a letter from W.L Sharkey to Secretary of State William H. Seward “in which he tells him that the Governor and all the officers elected by the people had been duly installed, qualified, and taken possession of their offices.”208 [1866 Cong. Globe 3042 (emphasis added).] Senator Henderson, Senator Fessenden, and Senator Daniel Clark of New Hampshire even briefly discussed the election of “municipal officers” and “town officers” such as mayors and recorders.209 [1866 Cong. Globe 3010.]

Taken together, these statements reveal a consistent speech pattern among the Framers of the 14th Amendment of referring to elected officials at all levels of government— federal, state, and local— as “officers.” It is also worth noting that while there may be examples suggesting the contrary—examples that could be revealed by a future corpus linguistics analysis of the Congressional Globe—we did not find any.

C. Evidence from the Ratification Debates of the Fourteenth Amendment in the States

Next, we turn to the ratification debates of the Fourteenth Amendment in the States. While not as well documented as the debates in Congress, they can still be a valuable source of evidence about how particular words or phrases were understood by the broader public at the time. Research into these debates has been greatly aided by a recently published collection published by Professor Kurt Lash.210 [Kurt T. Lash, THE RECONSTRUCTION AMENDMENTS: ESSENTIAL DOCUMENTS, VOL. 2. (2021).] It includes transcripts of state legislative history as well as contemporary newspaper articles reporting on these debates. Here, too, we see a consistent pattern—mined from the debates in Alabama, Louisiana, and North Carolina—of the word “officer” being broad enough to include elected officers.

● Alabama: On the day Alabama ratified the 14th Amendment (reversing its earlier rejection), the Alabama Senate Journal recorded the following two statements. First, “The Senate met at 12 m. and elected officers. The 14th amendment was ratified and the Senate adjourned until to-morrow.”211 [Id. (emphasis added).] And second, “In the House, officers were elected and the 14th amendment ratified.”212 [Id. (emphasis added).] Although these are legislative officers—as opposed to general state officers—the statements still show that officers can be elected as a general principle, not to mention elected by a multi-member body.

● Louisiana: An article reporting on the ratification of the 14th Amendment by Louisiana, which was published by the Boston Daily News, contained the following order from General Buchanan, the Commanding General of Union forces in the state: “All civil officers acting under military appointment will transfer their offices and everything pertaining thereto to their successors, who have been duly elected, and who are qualified under the laws of the State.”213 [Id. (emphasis added).]

● North Carolina: A Joint Committee Report Rejecting the Fourteenth Amendment contained the following statement: “A leading feature of this second section is, that, virtually, it makes the basis of representation to consist of the voters only, which is manifestly inconsistent with the theory of our political system. The voters are merely the appointing power, whose function is to select the representative; but his true constituency is the whole population. It is a great fallacy to maintain that an officer represents only those who vote for him.”214 [Id.; see also Journal of the Senate of the General Assembly of the State of North Carolina 91 (1866-67) (Raleigh: Wm. E. Pell, State Printer, 1867) available online at https://bit.ly/2C9wRva.] Not only does this show that officers are elected, but demonstrates that Founding Era understanding of election being a type of appointment continued into the 1860s.

The Lash collection also contains a proposed “compromise” amendment—reported in the New York Times—which was proposed by Southern Governors to President Johnson after a number of Southern legislatures initially refused to ratify the 14th Amendment. The language of the Compromise Amendment’s Section 4—which relates to apportionment of representatives—is particularly relevant for our purposes:

SEC. 4. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when any State shall, on account of race or color, or previous condition of servitude, deny the exercise of the elective franchise at any election for the choice of Electors for President and Vice President of the United States, Representatives in Congress, Members of the Legislature and other officers elected by the people, to any of the male inhabitants of such State, being 21 years of age and citizens of the United States, then the entire class of persons so excluded from the exercise of the elective franchise shall not be counted in the basis of representation.”215 [Lash, supra note 154 (emphasis added).]

This statement not only shows that officers can be elected, but the phrase “officers elected by the people” suggests that officers can be elected in other ways, such as by multi-member bodies such as legislatures or the Electoral College.

D. Evidence from Legislative History of the Fifteenth Amendment

We also looked at the legislative history of the Fifteenth Amendment, which was passed by the 40th Congress. Although one Congress removed from the cohort that passed the 14th Amendment, it is still a valuable source of evidence of the linguistic conventions used in the 14th Amendment, especially since so many of the members of the 40th Congress were also members of the 39th Congress. As with the legislative history and ratification debates of the 14th Amendment and the Impeachment Trial of Andrew Johnson, we found a consistent linguistic pattern of referring to elected officials— including federal ones—as both “officers” and “officers of the United States.”

● Senator Frederick Theodore Frelinghuysen of New Jersey: “The consequences, therefore, of adopting any separate system of qualifications for the right of voting under the Constitution of the United States would have been that in some of the States there would be persons capable of voting for the highest State officers, and yet not permitted to vote for any officer of the United States; and that in the other States persons not admitted to the exercise of the right under the State constitution might have enjoyed it in national elections.”216 [Cong. Globe, 40th Cong., 3d Sess., 978-999 (February 8, 1869) (emphasis added); id. at Appendix, 153- 54; Cong. Globe, 40th Cong. 3d Sess., 999 (February 8, 1869).]

● Representative Samuel Shellaburger of Ohio: “I understood the first proposition of the gentleman’s argument to be substantially this: that if the Constitution had reposed in the States the unlimited power to regulate the matter of voting for Federal officers it would involve this mischief, to wit: that thereby the power would be placed in the States to withhold from the Government the election of Federal officers at all, and that that mischief might be fatal to the Government itself. Am I right in that statement?”217 [Cong. Globe, 40th Cong., 3d Sess., 555-61 (January 23, 1869).]

● Representative Charles A. Eldridge of Wisconsin: “If the power exists in the Federal Government to pass this bill, whether under any one or all the provisions referred to, then I admit that Congress has the right to control the whole question of suffrage and the qualification of electors for all officers, State and national. There can be no reason for its entering the State and determining the qualification of those who are to elect the officers named in the bill that will not apply to every officer of the State so far as the question of power is concerned. The electors of President and Vice President are not named in section four of the first article. The power claimed, therefore, under the word “manner” in this section can no more apply to them than to the Governor of the State or any other State officer. So that if it covers electors it may as well cover, and does as necessarily cover, all that is contemplated by the amendment proposed by the joint resolution.”218 [Cong. Globe, 40th Cong., 3d Sess., 638-58 (January 27, 1869).]

● Representative James Burnie Beck of Kentucky: “It is contended by the gentleman from Massachusetts that this is only a political punishment to be imposed on such States as refuse to obey the mandates of the first section till such time as Congress can enforce its provisions, which he asserts provides that the right to vote for certain officers cannot be denied or abridged.”219 [Cong. Globe, 40th Cong., 3d Sess., 686-96 (January 28, 1869).]

E. Evidence from Popular Sources that Officers are Elected.

Finally, we looked at popular sources such as newspapers and found numerous references to “officers of the United States,” “federal officer,” “national officers,” and “officers of the general government” being elected. Searching the Newspapers.com database for the years 1850-1870, we found examples from almost every state and several territories. While our search was by no means exhaustive—we hope to perform a more comprehensive corpus linguistic analysis of the subject at some point in the future—it demonstrates the ubiquitousness of referring to “officers of the United States” in a way that includes elected officials.

● Arkansas: “To every marshall or duly elected officer of the United States. — You, and each of you are hereby commanded to bring up the body of J.W. Brown, said to be held in unlawful confinement on board the steamer Commodore . . .”220 [The Best Joke of the Season, Wash. Telegraph (July 12, 1854), available at http://tinyurl.com/2458t5zh.]

● Illinois: “The right of loyal States to decide for themselves the suffrage question does not in our opinion, give them power to prevent citizens of the United States from voting for officers of the United States . . .”221 [The Negro Suffrage Plank in the Chicago Platform, The Aegis (Jun. 26, 1868), available at http://tinyurl.com/8wkzwuuz.]

● Kentucky: “That a faithful execution of the fugitive save law—a noninterference with slavery where it exists in the States, by citizens of the nonslaveholding States—a non-interference with the slave owner in the Territories while Territories, and the condemnation and rejection for office of politicians ot [sic] a parties who shall hereafter attempt to agitate the subject of slavery, or make it a question in elections for officers of the United States, would restore peace and harmony to the States and people thereof.”222 [Orders of the Day, The Louisville Daily Courier (Jan. 22, 1858), available at http://tinyurl.com/2ru9ept6.]

● Massachusetts: “If they are not citizens of the United States, then they have no right to vote for officers of the United States.”223 [The Dred Scott Decision, The Liberator (July 31, 1857), available at http://tinyurl.com/2rmxy44r.]

● New York: “Charles C. Burleigh supported the resolutions against allegiance to the Constitution, and opposed voting for officers of the United States.”224 [New England Anti-Slavery Convention, The N.Y. Times (May 26, 1853), available at http://tinyurl.com/4hhsh8x3.]

● Ohio: “[S]upposing that no one should vote for a United States’ officer, only for State officers, the General Government would cease to be, in four years.”225 [Till P., The Sacredness of an Oath, Anti-Slavery Bugle (April 23, 1859), available at http://tinyurl.com/bychkna4.]

● Pennsylvania: “The unprecedented position of the legally elected officers of the United States should have at least gained for them the generosity of their former political foes.”226 [An Old Town Hero, The Adams Sentinel, Nov. 10, 1863, at 2.]

● Vermont: “The people of the States of California will sustain and uphold the constitutionally elected officers of the United States government, in all constitution efforts to preserve the integrity of the Union.”227 [Vermont Christian Monitor (April 13, 1861) available at http://tinyurl.com/8my63ktt; (Reprinted in The Sacramento Bee (March 9, 1861); the Civilian and Telegraph (April 11, 1861)).]

● Alabama: “The South, for the humble privilege of being allowed to have a hand in the election of federal officers, has permitted her rights to be assailed and our leading politicians have compromised their principles for the sake of currying favor with their Northern allies.”228 [ Trouble in the Camp, Spirit of the South (Dec. 16, 1851), available at http://tinyurl.com/y39c436y.]

● Connecticut: “Mr. Blaine asked Mr. Stevens if the third section would not be considered objectionable, as it excluded from the right to vote for national officers all who have voluntarily aided rebellion, and asked if the amnesty would exempt such.”229 [XXXIXth Congress-First Session, Hartford Courant (May 9, 1866), available at http://tinyurl.com/ypu79kxv.]

● Delaware: “A universal suffrage bill has been prepared for presentation at the next session of Congress. It does not extend the suffrage beyond the election of Federal officers.”230 [Congressional, Smyrna Times (Jan. 15, 1868), available at http://tinyurl.com/2jf22btd.]

● Georgia: “However desirable it may be, in the minds of many, to abrogate the unjust discrimination on account of color which prevails in the qualification for voters in most of the States, and to establish a uniform rule in that respect, particularly in the election of Federal officers, the loyal people of the land have recently made too great a struggle for the maintenance of the Constitution, to seek to accomplish the object by Congressional enactment, at a sacrifice of the obvious meaning and spirit of that instrument.”231 [The Age of Reason Returning, The Weekly Telegraph (Sept. 13, 1867), available at http://tinyurl.com/ykf8b4ap.]

● Idaho: “It will be remembered a bill was some time ago prepared and introduced in Congress, in anticipation of this so-called ratification of the establishment of a depotism upon the ruins of the Republic, taking the management and control of elections of all Federal officers entirely away from the States, and subjecting the whole to the dictation and control of Congress.”232 [Worth Thinking Seriously About, The Idaho World (March 31, 1870), available at http://tinyurl.com/3zpwxnd2.]

● Indiana: “While conservative and law-abiding citizens, who are deprived of the privilege of voting, may obey the law, others, with no characters to sustain and no reputation to lose—lawless in person and purse—such as are found in all our large cities, will vote for national officers in defiance of the law.”233 [Reconstruction, The Evansville Daily Journal (May 14, 1866), available at http://tinyurl.com/494m9xby.]

● Iowa: “They know that the present Rebellion is the unprovoked work of bad, ambitious Demagogues, who have made a legal election of National officers an assumed justification for the worst of crimes.”234 [The Responses, The Weekly Times (March 14, 1861), available at http://tinyurl.com/3efb4par.]

● Kansas: “It was then resolved that all who participated in the rebellion should be disfranchised from voting for Federal officers, and that the rebel debt should be repudiated.”235 [Reconstruction, The Atchison Daily Champion, May 2, 1866, at 2.]

● Louisiana: “A radical member of Congress, now here, has prepared a bill, which will be presented at the opening of Congress, providing for national suffrage. It differs very materially from similar bills presented by Mr. Sumner last session, and confines the suffrage to elections for national officers.”236 [The National Suffrage Scheme, The Times-Picayune (Nov. 7, 1867), available at http://tinyurl.com/mteva26b.]

● Maine: “In the coming campaign for the election of the officers of the national government, let the watchwords be the rights of the people, the rights of humanity.”

● Maryland: “Third–all persons who participated in the rebellion to be disenfranchised until after 1870, so far as voting for federal officers is concerned.”237 [Reconstruction, The Democratic Advocate (May 3, 1866), available at http://tinyurl.com/bddhjr47.]

● Minnesota: “He said that one singular thing in the report was comparing Minnesota to Wisconsin in regard to the election of her federal officers. Wisconsin elects her officers and pays them out of the State Treasury; and it would be inconsistent for Minnesota to elect her federal officers and then have them paid out of the U.S. Treasury.”238 [Legislative Assembly, Saint Paul Weekly Minnesotan (Jan. 26, 1856), available at http://tinyurl.com/5n8a4fnh. We admit that we are not entirely sure what the author of this one is saying, although we note that at the time this article was written, Minnesota was still a territory, which blurs the lines between state and federal officers.]

● Missouri: “Mr. Raymond, of New York, while not willing to accept it as a condition precedent to Southern representation was willing that all of the amendment, but the third section, depriving those who voluntarily aided in the rebellion, from voting for Federal officers.”239 [Another Day on Reconstruction—Another Day “Heading” Andy Johnson—Legislation in the District— Radical Dodge of the Negro Suffrage Issue, Daily Missouri Republican (May 10, 1866), available at http://tinyurl.com/44pdzyvh.]

● Nevada: “We do not believe that it is one of the rights of any State to deny any citizen of the United States a voice in the election of officers of the general government[.]”240 [The National or Federal Idea, The Carson Daily Appeal (June 18, 1867), available at http://tinyurl.com/3bcs3r4h.]

● New Jersey: “This act gives United States officers power to make arrests at the polls, and to inspect all records of elections for Federal officers[.]”241 [Our Washington Letter, Monmouth Democrat (Aug. 4, 1870), available at http://tinyurl.com/yc8nch2k.]

● North Carolina: “Mr. Lincoln distinctly contends for the right of any State to confer upon negroes citizenship and the right to vote for Federal officers.”242 [Mr. Lincoln and the “Peace Congress,” The Daily Journal (Feb. 18, 1861), available at http://tinyurl.com/4jcrwsae.]

● Oregon: “There was an informal meeting of a good many Republican Senators and Representatives to-day, to see if some action could not be had in the Senate to strike out the third section of the Constitutional Amendment, which disfranchises rebels from voting for Federal officers.”243 [General News, Albany Democrat (May 19, 1866), available at http://tinyurl.com/bde2hys3.]

● South Carolina: “To make out the inconsistency, he leaves out all the State elections ‘so often recurring,’ and Mr. Calhoun’s influence, and represents me as having attributed our unanimity solely to the election of Federal officers.”244 [General Ayer, Gen. Ayer’s Reply to Col. Owens, The Charleston Daily Courier (Oct. 20, 1859), available at http://tinyurl.com/5n985j2u.]

● Tennessee: “Hence all the arrangements for the election of Federal officers by the people were necessarily based upon the rule that the persons entitled by law of the States to vote for members of the popular branch of the State Legislature should be the persons who would have the right to vote for representatives to Congress and for the presidential electors.”245 [The Fifteenth Amendment, Nashville Union and American (July 15, 1869), available at http://tinyurl.com/3x52c9er.]

● Texas: “The evils that follow from the concentration of the attention of the people to national offices are extravagance in expenditures, an intense excitement pending the election of national officers, and a neglect of the people and their representatives to look to their own home as calculated to benefit them in all the relations of life, and to make them a happy and prosperous community.”246 [Patriotic States Rights Sentiments, The Texas Republican (Feb. 26, 1853), available at http://tinyurl.com/y9k36dru.]

● Virginia: “Mr. Boutwell reported a bill declaring who may vote for Federal officers, which he gave notice he would call up for action in ten days.”247 [Second Dispatch, Richmond Dispatch (Jan. 12, 1869), available at http://tinyurl.com/y78k5nuc.]

● Wisconsin: “He has not only sought no office, but has been so scrupulous that, feeling it might be inconsistent and dishonorable to take any part in a government which he considered in league with injustice and wrong, he has for years abstained from voting for federal officers.”248 [Mob Violence in Cincinnati–Wendell Phillips, Wisconsin State Journal (March 25, 1862), available at http://tinyurl.com/u57r9392.]

When viewed collectively, we think it is beyond dispute that at the time of the ratification of the 14th Amendment, the ordinary meaning of the word “officer” in general and “officers of the United States” in particular included elected officials.

V. Evidence that the President is an officer of the United States for purposes of the Fourteenth Amendment

Having shown the text, drafters of the 14th Amendment, ratifiers of the 14th Amendment, and others understood the word officers—including “officers of the United States”---to encompass elected officials, we now turn to the precise question of whether the President of the United States is an officer of the United States. In some respects, this is overkill. Having shown that the full phrase “officer of the United States” was not a legal term of art, President Trump’s concession that the President is an “officer” is lethal to his case. However, in the following sections we will amass additional evidence to show that at the time of the drafting of the Fourteenth Amendment, it was a common linguistic convention to refer to the President as an officer of the United States.

A. Evidence from the Legislative History of the Fourteenth Amendment

As noted above, we looked to the legislative history of the Fourteenth Amendment not to determine the intended meaning of the Fourteenth Amendment, but to look for evidence of how the legislators used the phrase “officer of the United States” and its synonyms in the course of their duties.249 [See Introduction to section III.] Unfortunately, we did not find any explicit references to the President (or Vice President) as an “officer of the United States.” We suspect that Blackman and Tillman would argue that this proves their point. As Tillman explained in his amicus brief to the Colorado Supreme Court, “These references to the President may have been made in a more colloquial sense, but they did not state the President was an ‘Officer of the United States.’”250 [Tillman, supra n. 132 (“These references to the President may have been made in a more colloquial sense, but they did not state the President was an “Officer of the United States.”).] But that is exactly our point. The phrase “Officer of the United States” is not a term of art, and therefore its original public meaning is the “colloquial sense.”

As noted in Section II.A, even during the first few years of the Republic, when Congress was busy creating positions within the new government, Congress almost never used the full phrase “officer of the United States.” The same is true of the debates over the Fourteenth Amendment. We found only twelve explicit uses of the phrase “officer of the United States” and one use of “officers of the United States.” Of these, ten were quotations of the exact language of the proposed amendment and two were close paraphrases. But they did refer to the President as an “officer of the government,” “executive officer,” and “officer.” This is exactly what you would expect if the full phrase was not a term of art, and such is still probative.

For example, in discussing who had the power to declare the insurrection over, Senator Davis referred to the President as an “officer of the Government”:

[T]here was a necessity for some power, some officer of the Government to declare when the insurrection was suppressed. There is such a power and such an officer to execute it; and who is he? The Constitution had been attacked by an armed resistance to the execution of the laws, and an attempt to set up an independent power and government within the United States. It is made the duty of the President, by the Constitution, to the best of his ability to preserve, protect, and defend that Constitution, and to take care that the laws be faithfully executed throughout the United States.”251 [1866 Cong. Globe 2914 (emphasis added).]

Senator Doolittle used the same phrase to discuss the relationship between the President and other officers within the Executive Department. He had been accused by Senator Trumbal of Illinois of suggesting that inferior officers were “officers of the President.” Doolittle disagreed: “I stated that executive officers were responsible to the President as the chief executive officer of the Government. My friend from Illinois seems to think that because I made this statement that they are responsible to the President, because he under the Constitution has placed upon him the responsibility of seeing that the laws are faithfully executed, I intended to say that these men were subject merely to the will of the Executive and not to the laws of the land. Not at all, sir.”252 [Id.]

In addition, Senator Howe once referred to the President as an “executive officer” and Senator Davis twice referred to him as the “chief executive officer.”

● Senator Howe: “It was argued, I recollect, by the Senator from Pennsylvania [Mr. Cowan] some time since that the President had a peculiar gift, or a peculiar right, for doing these things because he was an executive officer.253 [1866 Cong. Globe 3042 (emphasis added).]

● Senator Davis: “We now see, though, that this majority, lately the friends of the President, are engaged in a war upon him, and that war manifests itself in various aspects and modes. They denounce him; they denounce his measures, his policy. He is a coordinate branch of the Government; or at least the executive department is, and he is the chief executive officer.”254 [1866 Cong. Globe (June 6, 1866).]

● Senator Davis: “The powers of a Government are unavoidably augmented and energized during war, and then there is generally an accord between the legislative and executive branches, produced by the active presence of a common danger and a mutual effort to avert it, that makes the chief executive officer the instrument to give effect to their common policy and purposes.”255 [1866 Cong. Globe 2285 (emphasis added).]

We found this language particularly probative given the connection identified by Blackman and Tillman between the Oaths and Affirmation Clause and Section 3.

We also found a fourth reference by Senator Davis to the President as simply an “officer.” He referenced a debate back at the start of the Civil War about whether to seat the Senators elected from the loyal portions of Virginia—i.e. What would become West Virginia—after the rest of the state had voted to secede. The question was whether “notwithstanding the State of Virginia had passed an ordinance of secession and was in the condition of armed and active insurrection against the United States, still she was one of the United States and in the Union.” Senator Davis said that the Senate decided that the question was a “political question” and ‘[t]hat the President is the proper officer and power to decide” it.256 [1866 Cong. Globe (emphasis added).]

B. Evidence from the Impeachment Trial of Andrew Johnson

We were unsatisfied with the relatively few references we found in the legislative history of the Fourteenth Amendment, especially since four of the six references we found came from a single Senator. Afterall, individuals can be linguistic rebels, part of the “despised few” Sapir discussed. We therefore looked at the transcript of the impeachment trial of President Andrew Johnson for more examples of legislative speech.257 [One PDF of the transcript is found here: https://upload.wikimedia.org/wikipedia/ ... _Johnson_- _president_of_the_United_States%2C_before_the_Senate_of_the_United_States%2C_on_impeachment_b y_the_House_of_Representatives_for_high_crimes_and_misdemeanors_%28IA_trialofandrewjohn03john %29.pdf.]

Following the assassination of Abraham Lincoln, his Vice-President, Andrew Johnson, became President. Johnson, a loyal southern Democrat, had replaced a Republican, Hannibal Hamlin, as Lincoln’s running mate in 1864. Given the Republican majorities in the House and Senate, conflict with Johnson soon occurred. Relevant to our discussion, Congress passed a law over President Johnson’s veto that restricted his ability to fire officers appointed with the advise and consent of the Senate.258 [Tenure of Office Act of 1867.] When Johnson ignored that law and removed Edwin Stanton as Secretary of War, he was impeached.

We selected the transcript of the trial as a document to examine because it involves frequent use of the word “officer” by the Congress after the Congress that passed the Fourteenth Amendment. We view this transcript as a resource to answer multiple questions about the term “officer of the United States.”

A search for the term “officer of the United States” reveals a limited number of hits like during the debates over the 14th Amendment, but several actually use that term to refer to the President. For example, during a lengthy speech explaining his views on the impeachment, Senator George Edmunds of Vermont said that "To this tribunal, sworn to impartiality and conscientious adherence to the Constitution and the laws, they [the founding fathers] committed the high powers indispensable to such a frame of government, of sitting in judgment upon the crimes and misdemeanors of the President, as well as all other officers of the United States.”259 [Johnson Impeachment Trial, 95 (emphasis added). Sen. Edmunds referred to the drafters of the Constitution as simply “the fathers”; bracketed text added for clarity.]

A statement of Senator Joseph Fowler of Tennessee is likewise evidence that the term “officer of the United States” includes the President. In explaining the Impeachment Clause of the Constitution he stated: “The framers of the Constitution” “defined in their great charter the offences for which a President or other officer could be impeached and divested of his office. The Constitution says 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.’"260 [Johnson Impeachment Trial, 193-194.] Here, the parallel structure of these sentences plainly indicates (1) that Senator Fowler viewed the President as an officer under the Impeachment Clause, and (2) that he did not see a distinction between “officer” and “civil officer of the United States.”261 [See nn. ___ — ___, and accompanying text, supra, for a discussion of why the text of the Impeachment Clause does not suggest the President is not an officer of the United States.]

In addition, the trial transcript twice quotes an article262 [We have unfortunately been unable to find the original article.] by John C. Hamilton, the son of Alexander Hamilton, which specifically identifies the Vice President as an officer of the United States, while discussing how the Constitutional Convention decided to have the Senate try impeachments. In this discussion, Hamilton recounts that on

the 8th of September, Roger Sherman raised the objection that the Supreme Court was "improper to try the President because the judges would be appointed by him." This objection prevailed, and the trial was entrusted to the Senate by the vote of all the States with one exception; and thus, on the same day, immediately after, the subjects of impeachment were extended from treason and bribery to 'other high crimes and misdemeanors,' and thus entrusted and thus enlarged, it was on the same day made to embrace 'the Vice-President and other civil officers of the United States.'"263 [Johnson impeachment trial 356 (emphasis added). The same source is apparently read at page 254 as well.]

Obviously, the inclusion of the word “other” in the phrase “the Vice-President and other civil officers of the United States” implies that the Vice President is a civil officer of the United States. Thus, the trial reveals that John Hamilton viewed the Vice President as a civil officer of the United States. Since all of Blackman and Tillman’s arguments apply with equal force to the Vice President as to the President, we think that evidence that the Vice President is an officer of the United States is equally probative for the President, and vice versa. (We also note that if “officer of the United States” was understood at the time of the founding or subsequently to be a term of art that excluded certain officials including the President and Vice-President, one would imagine John Hamilton, as a son of one of the writers of the Federalist Papers, would have understood that.264 [Cf. New Prime v. Oliveira, 586 U.S. —, 139 S. Ct. 532, 539 (2019) (“ Of course, statutes may sometimes refer to an external source of law and fairly warn readers that they must abide that external source of law … But nothing like that exists here. “) (Emphasis added)).]

While these are the only direct references to the President as an officer of the United States, several Senators referred to the President as an officer. We reproduce them below:

● Senator Davis: “The Constitution has no provision declaring a violation of any of its provisions to be a crime; that is a function of the legislative power, and it has passed no law to make violations of the Constitution, or of official oaths, by the President or any other officers, crimes.”265 [Johnson Impeachment Trial, 161.]

● Senator Reverdy Johnson of Maryland: “...but the Constitution for wise purposes says that in the contingency of an impeachment of a President of the United States or any other officer falling within the clause authorizing an impeachment, they are to become, as I understand, a court. So have all our predecessors ruled in every case; and who were they?"266 [Johnson Impeachment Trial, 370.]

● Senator Charles Beckalew of Pennsylvania: "The Constitution provides that when there is no President or Vice-President to discharge the duties of the presidential office, such duties shall be discharged by some other officer to be designated by law, until a new President shall be chosen."267 [Johnson Impeachment Trial, 221.]

● Senator John Sherman of Ohio: “The power of removal is expressly conferred by the Constitution only in cases of impeachment, and then upon the Senate, and not upon the President. The electors may elect a President and Vice-President, but the Senate only can remove them. The President and the Senate can appoint judges, but the Senate only can remove them. These are the constitutional officers, and their tenure and mode of removal are fixed by the Constitution.”268 [Johnson Impeachment Trial, 33.]

● Senator Thomas Tipton of Nebraska: “It appears that while General Emory was acting under a commission requiring him to observe and follow such orders and directions as he should receive from the President and other officers set over him by law, an order reached him embodying a section of law, which law had been previously approved by the President himself. However, as it provided that orders from the President and Secretary of War should be issued through the General of the army, or next in rank, and the President being engaged to remove the Secretary of War and thwart the action of the Senate, in a discussion with General Emory, as to his duty as an officer, said, 'This' (meaning the order) 'is not in conformity with the Constitution of the United States, which makes me Commander-in-chief, or with the terms of your commission.'"269 [Johnson Impeachment Trial, 192. We note that the reference to “other officers set over him by law” is reminiscent of the Appointments Clause, further proof that an “officer” is an “officer of the United States.”]

We also examined the House proceedings on the impeachment of President Johnson, as well as material from surrounding weeks.270 [To be precise, we conducted a search of the Congressional Globe volume available at this link: https://www.google.com/books/edition/Th ... =en&gbpv=0. We only include examples from the House in the remainder of this subsection.] Here there are also references to the President as an Officer of the United States. Rep. Aaron F. Stevens, for example, stated “the executive officers of the United States, from the President down, are creatures of the people, and not creatures of the president.”271 [Cong. Globe, 40th Cong., 2nd Sess. 1553 (Feb. 29. 1868). Later in the same speech, Rep. Stevens quoted the Appointments Clause in full, suggesting he did not view that Clause as precluding the idea that the President is an officer.Id. Cf. nn. ___-___ and accompanying text above (discussing the Appointments Clause). To be fair, Representative Stevens at one point also discussed the “unrestrained authority for the President of the United States to appoint and remove at will every executive officer at will.” Id.] Representative John Bingham272 [While we cite this quote for linguistic understanding, we note that Representative Bingham was a key drafter of the Fourteenth Amendment.] from the house floor in the final days before President Johnson was impeached: “Did not the gentlemen know that it is written in the constitution that the President, the Vice President, and every other civil officer of the United States shall be removed from office on impeachment for and conviction of high crimes and misdemeanors.”273 [Cong. Globe, 40th Cong., 2nd Sess. 1341 (1868).]

Other representatives referred to the President as an executive officer. Referencing President Johnson, Rep. Shelby M. Cullom said that “We are to-day [sic] considering the report of the committee appointed by the House to prepare and report impeachment against that high officer of the Government.”274 [Cong. Globe, 40th Cong., 2nd Sess. 1604 (Mar. 2, 1868).] Rep. Robert T. Van Horn referred to the President as “the executive officer of the nation.”275 [Cong. Globe, 40th Cong., 2nd Sess. 1389 (Feb. 24, 1868).] Rep. William H. Kelsey stated “In England, the chief executive officer of the Government cannot be impeached. Here he can be.”276 [Cong. Globe, 40th Cong., 2nd Sess. 1359-60 (Feb. 22, 1868). Rep. Kelsey also believed President Johnson was only “Acting President” following Lincoln’s death, id., a theory that was subsequently foreclosed. See U.S. Const. Amndt XXV, s 1.] Representative Ebon C. Ingersoll stated “The President is merely an executive officer and cannot rightfully exercise any of the functions belonging to a judicial officer.”277 [Cong. Globe, 40th Cong., 2nd Sess. 1359-60 (Feb. 22, 1868) (two references).]

We also found references to the President as an officer. Representative Rufus P. Spalding called the President “this high officer of our Government.”278 [Cong. Globe, 40th Cong., 2nd Sess. 1339 (Feb. 22, 1868).] In a discussion on appropriations, Representative William E. Nilback stated that “The President is commander in chief of the Army and Navy, and as such is as much entitled as any other officer of the Army and Navy to have detailed for his assistance any subordinate officer.”279 [Cong. Globe, 40th Cong., 2nd Sess. 1111 (Feb. 11, 1868).]

Taken together, we believe that the legislative history of the Fourteenth Amendment and the Impeachment debates and Trial of President Andrew Johnson demonstrates a consistent linguistic practice of identifying the President as an officer generally, and “Officer of the United States,” specifically.

C. Evidence from President Andrew Johnson’s Appointment Proclamations

We also found that Andrew Johnson—the President at the time the 14th Amendment was ratified—referred to himself as an “officer of the United States” in numerous official proclamations appointing individuals to important posts in the former Confederate states. For example, consider this May 29, 1865 Proclamation appointing William W. Holden Provisional Governor of North Carolina:

Whereas, The President of the United States is by the Constitution made Commander-in-Chief of the army and navy as well as chief Executive officer of the United States and is bound by solemn oat, faithfully to execute the office of President of the United States, and to take care that the laws be faithfully executed . . . I, Andrew Johnson, President of the United States and commander-in-chief of the army and navy of the United States, do hereby appoint Wm. W. Holden provisional governor of the State of North Carolina[.]280 [Andrew Johnson, A Proclamation, Burlington Times (June 3, 1865), available at http://tinyurl.com/2pp5r27x.]

We found similar proclamations by Johnson appointing governors over Alabama,281 [Andrew Johnson, Appointment of Lewis E. Parsons Provisional Governor of Alabama, Alabama Beacon (July 7, 1865), available at http://tinyurl.com/4xw2euzc.] Georgia,282 [Andrew Johnson, Official, Evening Star (June 19, 1865), available at http://tinyurl.com/y4rtujpe.] Mississippi,283 [Andrew Johnson, Reconstruction!, The Philadelphia Inquirer (June 14, 1865), available at http://tinyurl.com/yuavvd4r.] Texas,284 [Id. (Johnson refers to himself here as the chief civil executive officer of the United States).] and South Carolina.285 [Andrew Johnson, Official–Department of State—By the President of the United States of America–A Proclamation, Camden Journal (July 28, 1865), available at http://tinyurl.com/475bases (chief civil executive officer of the United States).] In each of them, he referred to himself as an “officer of the United States.” While these proclamations were largely formulaic, using almost word-for-word language, there were some interesting variations. In the Alabama, Mississippi, and North Carolina proclamations, he refers to himself as the “chief executive officer of the United States,” but in the ones for Georgia, Texas, and South Carolina he adds a word, identifying himself as the “chief civil executive officer.” This tiny difference persuades us that the terms that “chief,” “civil,” and “executive” were all just adjectives modifying “officers of the United States” —lest anyone try to argue that that a “chief executive officer of the United States” or “executive officer of the United States” is somehow different from an “officer of the United States” for purposes of Section 3.

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Part 5 of 5

D. Evidence from the Amnesty Proclamations of Presidents Lincoln and Johnson

A fourth strain of evidence that at the time the Fourteenth Amendment was ratified, the phrase “officers of the United States” included the President, are the amnesty proclamations issued by Presidents Abraham Lincoln and President Andrew Johnson, pardoning confederates. On December 8, 1863, President Lincoln “issued a full pardon” which “restor[ed] all rights of property” to “all persons who have, directly or by implication, participated in the existing rebellion,” provided that they willingly took an oath to “support, protect and defend the Constitution of the United States, and the union of States thereunder” and respect all laws and proclamations issued by Congress and the President respecting slavery during the Civil War.286 [Abraham Lincoln, Proclamation (Dec. 8, 1863), available at: https://history.state.gov/historicaldoc ... 1/message1.] Then in May 1865, President Andrew Johnson issued his own amnesty proclamation “grant[ing] to all persons who have directly or indirectly participated in the existing rebellion . . . amnesty and pardon, with restoration of all rights of property, except as to slaves.”287 [Andrew Johnson, President Johnson’s Amnesty Proclamation (May 29. 1865), available at: https://www.loc.gov/resource/rbpe.23502500/?st=text.] Both of these proclamations contained a long list of exemptions—-individuals participating in the rebellion that were not covered by the general pardon—chief among them “all who are, or shall have been, civil or diplomatic officers or agents of the so-called Confederate government” as Lincoln put it, or in the words of Johnson “All who are, or shall have been, pretended civil or diplomatic officers, or otherwise, domestic or foreign agents, of the pretended Confederate Government.”288 [While we have placed this argument in Section IV, the Amnesty Proclamations are equally good evidence for establishing that officers may be elected as a general matter. Jefferson Davis was elected President of the Confederacy in 1862.]

Subsequent history demonstrates that Confederate President Jefferson Davis and Vice President Alexander H. Stephens were not covered by either of these amnesty proclamations. Davis was dogged with prosecutions for years. As for Stephens, he was elected to the U.S. Senate in 1866, but prohibited from taking his seat due to restrictions on former Confederates.289 [Gerard N. Magliocca, Amnesty and Section Three of the Fourteenth Amendment, 36 Constitutional Commentary 87 (2021) (citing Edward McPherson, The Political History of the United States of America During the Period of Reconstruction 107–09 (Washington, Solomons & Chapman 1875)).] While he would go on to serve as a Congressman from the State and Georgia’s fiftieth governor, both were after Congress passed the Amnesty Act of 19[?]72.

But why were they excluded from Lincoln and Johnson’s amnesty proclamation? Obviously because they were “civil officers . . . of the pretended Confederate Government.” It’s the only exemption that could possibly apply. And yet, the Confederate Constitution was modeled after the U.S. Constitution, and the four clauses that Blackman and Tillman cite to support their thesis that the President and Vice President are not officers of the United States, are copied word-for-word as shown below, with the exception that “Confederate States” is substituted in place of “United States,” and some tweaks to capitalization.290 [While the Confederate States Constitution is not legal authority, it can serve as evidence of linguistic conventions of the day. The capitalization in the Confederate Constitution looks closer to modern conventions than that of the U.S. Constitution. The fact that the Confederate Constitution never capitalizes the word officers in the full phrase “officers of the Confederate States” is at least weak evidence that at the time of the ratification of the Fourteenth Amendment, the full phrase was not considered to be a term of art. It is also worth noting that the word is not capitalized in the 14th Amendment. We do not feel that the fact that word “Officer” is capitalized throughout the Constitution of 1789 suggests the contrary, any more than the fact that they capitalized the “C” but not the “s” in “supreme Court” tells us something about the original public meaning of Supreme Court.]

United States Constitution / Confederate States Constitution

“[The President] shall nominate, and by and with the Advice and Consent of the Senate, 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 . . .” / “[The President] shall nominate, and by and with the advice and consent of the Senate shall appoint, ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the Confederate States whose appointments are not herein otherwise provided for . . . ”

“[The President] shall . . . Commission all the Officers of the United States.” / “The President shall . . . commission all the officers of the Confederate 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.” / “The President, Vice President, and all civil officers of the Confederate States, shall be removed from office on impeachment for and conviction of treason, bribery, or other high crimes and misdemeanors.”

“The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution;” / “The Senators and Representatives before mentioned, and in the members of the several State Legislatures, and all executive and judicial officers, both of the Confederate States and of the several States, shall be bound by oath or affirmation to support this Constitution.”

Yet, surely no one in the North would have allowed Alabama to elect Jefferson Davis to the Senate on grounds that he was just the President, not an officer, of the Confederate States.

Critics might quibble that neither Amnesty Proposal used the phrase “officers of the Confederate States” or at least “officers of the so-called Confederate States,” and that the broader term “officers of the so-called Confederate government” was more all encompassing. But does anyone really believe that it would have made a difference if it did? We’ve already shown that the phrase “officers of the United States” was not a term of art, so why would it’s counterpart be? An “officer of the so-called Confederate government” was the same thing as an “officer of the so-called Confederate States.”

Others might argue that this line of reasoning is irrelevant because the Confederate Constitution was never recognized by the United States as valid law due to the Confederate States never recognized as a legitimate country. But it is still evidence of the linguistic norms of the day for at least twelve states—twelve states that ultimately ratified the 14th Amendment. Davis and Stephens were therefore officers only in “the colloquial sense.”291 [Tillman, supra n. 132.] But that is exactly the point. The colloquial understanding—or to put it in legal terms, original public meaning—of the officers of a country, pretended or otherwise, included the President and Vice President.

E. Evidence from Other Contemporary Sources

Having shown that the President was frequently referred to as an officer of the United States, federal officer, and officer in various legal sources, we turn now to other more popular sources as evidence of the original public meaning of the Fourteenth Amendment.

First, we found dozens of newspaper articles292 [See, e.g.] written between 1850 and 1870 that refer to the President explicitly as an officer of the United States. These articles—which we found by searching the Newspapers.com database—came from more than two-thirds of the states that were part of the Union when the Fourteenth Amendment was ratified. They included newspapers from the Deep South, the far West, the mid-Atlantic, the midwest, and New England; papers in large cities like New York and Philadelphia and small towns like Rock Island, Illinois; papers that were Pro-Union and Pro-Confederacy. Some of the articles were actually reprintings of official government documents or Congressional speeches, while others were written by letters-to-the-editor or mere gossip; some were written by local authors, while other articles we saw reprinted in papers in multiple states. Through it all, we noticed a consistent linguistic pattern of using the phrase “officer of the United States” in a way that included the Presidency.293 [To be sure, this was not a formal corpus linguistics analysis. Neither time, nor the Newspapers.com interface, allowed us to be quite so precise. There may be some newspaper articles that cut the other way, but the understanding that the President was an “officer of the United States” appears to be widely shared.] A fraction of the quotations are listed below:

● Alabama: “On the 20th of June, the day of his letter, there were a President of the United States, a Cabinet, Judges of the Supreme Court, and thousands of other civil officers of the United States.”294 [Headquarters, Department of Ala. Mobile, Ala., Sept. 20th 1865, Montgomery Daily Mail (Sept. 26, 1865), available at http://tinyurl.com/szdtb46m.]

● Arkansas: “This creature [i.e. Brigham Young] and his deluded followers are in the constant habit of denouncing the President and all the other officers of the United States in the most indecent terms.”295 [The Mormons, Weekly Arkansas Gazette (Nov. 28 1851), available at http://tinyurl.com/3pd5jnp6.]

● California: “Great power is contided [sic] to the President, Vice President, and othhr [sic] civil officers of the United States”296 [What is the Union?, The Mountain Democrat, Nov. 21, 1863, at 2.]

● Connecticut: “[T]he President of the United States is by the Constitution made Commander-in-Chief of the Army and Navy, as well as chief executive officer of the United States, and is bound by solemn oath faithfully to execute the office of President of the United States . . .”297 [Oliver Morton, Senator Morton’s Speech, Litchfield Enquirer (Feb. 6, 1868), available at http://tinyurl.com/2fm2sc7a.]

● District of Columbia: “Mr. Fillmore . . . has been a faithful and honest President. . . . No chief executive officer of the United States ever displayed more wisdom, moderation, and conciliation.”298 [Mr. Fillmore, The Daily Republic (Aug. 27, 1851), available at http://tinyurl.com/2mv5bpab.]

● Georgia “[W]hereas, the President of the United States is, by the Constitution, commander-in-chief of the army and navy, as well as chief civil executive officer of the United States . . . I, Andrew Johnson, President of the United States . . . do hereby appoint James Johnson, of Georgia, whose duty it shall be . . .to prescribe such rules and regulations as may be necessary.”299 [Andrew Johnson, Appointment of James Johnson as Provisional Governor of Georgia, and Andrew J. Hamilton as Provisional Governor of Texas—Proclamation by the President, The Macon Telegraph (June 29, 1865), available at http://tinyurl.com/4zxevudb.]

● Idaho: “The president and other officers of the United States receives a very small salary compared to the crowned heads of Europe.”300 [Small Salary, The Idaho Statesman (May 12, 1868), available at http://tinyurl.com/527ptzzf.]

● Illinois: “Their contest has been one of principle alone—a principle which, if Mr. Lincoln is the chief executive officer of these United States for the next four years, he will be compelled to carry out.”301 [The Vote of Rock Island, The Rock Island Argus (Nov. 9, 1860), available at http://tinyurl.com/ye6epyby.]

● Indiana: ““Now, the President is an officer of the United States . . .”302 [ ]

● Iowa: “This vain old man was made to believe that he was in communication with the Secretary of State, the President, and other important officers of the United States.”303 [Santa Anna, Nashville Union and American, June 27, 1867, at 4.]

● Kansas: “Jefferson Davis . . . personally advised and assisted in maturing the plan for the cowardly murder of the President and other officers of the United States government.”304 [Jefferson D. and his Friends–What Shall We Do With Them?, The Atchison Daily Free Press (May 20, 1865) , available at http://tinyurl.com/3rux28jz.]

● Kentucky: “The ‘august master’ of Russia, in his letter to President Lincoln, has given the Chief Executive officer of the United States some wholesome advice.”305 [Russia’s Advice to President Lincoln, The Louisville Daily Courier (Sept. 16, 1861), available at http://tinyurl.com/35e4nrnz.]

● Louisiana: “No provision of this nature has ever been made for the widows or families of any one of the Presidents or other civil officers of the United States.”306 [Abraham Lincoln’s Widow, Detroit Free Press (May 13, 1870), available at http://tinyurl.com/2ceenr4v.]

● Maine: “Whereas the President of the United States is by the Constitution made commander-in-chief of the army and navy, as well as chief Executive officer of the United States . . . I, Andrew Johnson, President of the United States, do hereby appoint William W. Holden, Provincial Governor of the State of North Carolina.”307 [Andrew Johnson, A Proclamation, Bangor Daily Whig and Courier, (May 30, 1865), available at http://tinyurl.com/ycmfywn7.]

● Michigan: “No provision of this nature has ever been made for the widows or families of any one of the Presidents or other civil officers of the United States.”308 [Mrs. Lincoln’s Pension—Adverse Report of the Senate Committee, The Times-Picayune (May 11, 1870), available at http://tinyurl.com/34cjp86j.]

● Minnesota: “The Post argues editorially that the plot for the murder of Lincoln, Johnson, Seward, Stanton and Grant, was known and approved by Jeff. Davis and other rebel leaders. It says that the very time when the assassins in Washington were preparing to do their work, Davis opened negotiations with Sherman, in which he dealt with that General as if Sherman were in fact chief officer of the United States Government, the others [including Lincoln] being supposed to be killed.”309 [Mustering Out, The Weekly Pioneer and Democrat (May 12, 1865), available at http://tinyurl.com/bdhb5j34.]

● Mississippi: “At the instance of President Johnson, and to facilitate his patriotic work of reconstruction, the people of the South elected members [to] Congress. Without this invitation from the Chief Executive officer of the United States, they would not have afforded the radical majority in Congress an opportunity for perpetrating an outrage which virtually defeats the end for which so much blood and treasure were expended during the past four years.”310 [Our Condition–Our Future, The Vicksburg Herald (Jan. 20, 1866), available at http://tinyurl.com/24nwmy9c.]

● Missouri: “Then the clause after being so amended so as to include besides the President, the Vice President, and other civil officers of the United States . . . was agreed to as now found in article 4, section 2 of the Constitution.”311 [Impeachment, Daily Missouri Democrat (March 3, 1868), available at http://tinyurl.com/48yaudvb.]

● New York: “[T]he result was that neither the President, Vice President, nor other civil officer of the United States could lawfully do an act . . . contrary to the good morals . . . of the office he holds.”312 [Impeachment, The Brooklyn Union (Dec. 7, 1867), available at http://tinyurl.com/4juaa9fy.])

● North Carolina: “Here the President declares, not merely as Commander-in-chief, but as “Chief Executive officer of the United States, that under the Constitution of the United States it is his duty to enforce the laws . . . .”313 [Chief Justice Ruffin against the New Constitution–He denounces President Johnson as a Despot and Usurper!, The Weekly Standard (Aug. 1, 1866), available at http://tinyurl.com/52suh9yv.]

● Ohio: “The design of the provision undoubtedly was to prevent the juncture of executive and legislative authority in the same individual; and unless its force is destroyed by some other provision, it is evident that neither the President nor any other officer of the United States . . . can legally be a member of either House.”314 [Who Shall Succeed Mr. Johnson—Mr. Wade Not Entitled, The Cincinnati Enquirer, April 13, 1868.]

● Pennsylvania: “The official papers of Davis captured under the guns of our victorious army in the Rebel capitol identified beyond question or shadow of doubt, and placed upon your record, together with the declarations and acts of his conspirators and agents, proclaim to all the world that he was capable of attempting to accomplish his treasonable procuration of the murder of the late President, and other chief officers of the United States.”315 [The Great Trial, The Philadelphia Inquirer (June 29, 1865), available at http://tinyurl.com/5n6juyhj.]

● South Carolina: “[T]he Provisional Governor is hereby authorized and empowered to appoint a competent agent . . . and also as Agent of the Governor of this State in all matters which he may desire to bring through such Agent before the President or other officers of the United States Government”316 [W.M. Henry Trescott, Report of Mr. Trescot, The Charleston Daily News, Nov. 4, 1865, at 1.]

● Tennessee: “[T]he President is an officer of the United States”317 [Who Shall Vote for President, The Tennessean (July 28, 1868), available at http://tinyurl.com/bdzm87pn.], available at

● Vermont: “. . . no less so in respect to Senators or Representatives than in respect to the President or any other officer of the United States.”318 [Mr. Foot, Speech of Mr. Food of Vermont, Rutland Weekly Herald (Nov. 14, 1856), available at http://tinyurl.com/y733fj28.]

● Virginia: “All persons who shall have knowledge of such plot, and shall not disclose the same to the President or some other officer of the United States, shall be guilty of misprision of treason . . .”319 [Senate, Monday, January 16, Alexandria Gazette (Jan. 17, 1860), available at http://tinyurl.com/3h5d83cf.]

● Wisconsin: “. . . bill declaring the effect of impeachment by the House of Representatives, on the President and other officers o[f] the United States.”320 [Impeachment of Andrew Johnson, The Telegraph-Courier (Nov. 28, 1867), available at http://tinyurl.com/5trub2t7.]

It is worth noting that at least a few of these articles were reprintings of the official proclamations mentioned above, where he explicitly identified himself as the “Chief Executive Officer of the United States” or “chief civil executive officer of the United States.”

Other newspaper accounts clearly referred to the President as a federal officer without explicitly using the phrase “officer of the United States.” A few are shown below:

● Connecticut:]“Mr. Covode on Monday also moved a resolution inquiring into the outlay of money for the purpose of electioneering, &c.,---and also inquiring whether the President or any other officer of government has with the use of money, patronage, or any other improper means, sought to influence Congress[.]”321 [News of the Week, Litchfield Enquirer (March 8, 1860), available at http://tinyurl.com/3m36yncw.]

● Delaware: “This left me [James Buchanan] no alternative, as the chief executive officer under the Constitution of the United States, but to collect the public revenue and protect the public property, so far as might be practicable under the existing laws.”322 [James Buchanan, A Message From the President, Weekly Delaware State Journal and Statesman (Jan. 11, 1861), available at http://tinyurl.com/bdfw682u.]

● Maine: “While at Washington, subsequent to his escape from Richmond, the loyalty of Mr. Starrett was abundantly substantiated to the satisfaction of the President and other officers of the Government.”323 [Arrest of Loyal Refugee, Bangor Daily Whig and Courier (Aug. 12, 1864), available at http://tinyurl.com/2z2nypak.]

● Maryland: “Hon. John Cochrane accompanies the officers of the Seventh Regiment to the President’s House this morning, and introduced them to the President and other officers of the Government.”324 [The Seventh Regiment of New York, The Daily Exchange (Feb. 24, 1860), available at http://tinyurl.com/555cyxhf.]

● Massachusetts: “It declares the title of all abandoned lands to be in the United States, and forbids the President or any other officer of the Government from surrendering it or doing any act to impair or affect the title of the United States.”325 [Congress, The Recorder (Jan. 20, 1868), available at http://tinyurl.com/y35n8bcv.]

● New Jersey: “The Embassy first landed at Washington and will be received by the President and other officers of the Government with great ceremony.”326 [The Japanese Embassy, West-Jersey Pioneer (May 19, 1860), available at http://tinyurl.com/y28a36ty.;]

● Pennsylvania: “He was the President, the chief officer of the government[.]”327 [The President’s Re-Construction Policy as Illustrated by the Washington Chronicle, Bradford Reporter, Aug. 3, 1865), at 2.]

● West Virginia: “[T]hey not only often call it requisition, but find it to answer the end desired, which is proven by their nomination for President, and other officers of the government.”328 [For the Mirror, American Union (April 24, 1852), available at http://tinyurl.com/4zaydc99.]

We also found evidence in legal treatises of the day. In Commentaries on American Law, the great American jurist James Kent stated, "The President is the great responsible officer for the faithful execution of the law, and the power of removal was incidental to that duty, and might often be requisite to fulfill it."329 [1 Kent. Com. 310, quoted in Veto Message, 425, https://www.presidency.ucsb.edu/documents/vetomessage- 425 and page 330 of the Johnson impeachment trial.] And Calvin Townsend in his educational reader, An Analysis of Civil Government, was even more explicit: “The Vice-President is an Officer of the United States.”330 [Calvin Townsend, Analysis of Civil Government 139 (1869).] Because all of Blackman and Tillman’s arguments apply equally to the Vice President as it does to the President, we find this to be relevant as well.

Finally, in the Republican Party Platform of 1868, we found the following statement that explicitly identifies the President as as an officer, “We profoundly deplore the untimely and tragic death of Abraham Lincoln, and regret the accession of Andrew Johnson to the Presidency, who has acted treacherously to the people who elected him and the cause he was pledged to support; has usurped high legislative and judicial functions; has refused to execute the laws; has used his high office to induce other officers to ignore and violate the laws.”

* * * * *

In summation, we have compiled a significant body of evidence—including numerous proclamations by President Andrew Johnson, statements by Senators and Representatives during the debates over the Fourteenth Amendment and the impeachment trial of Andrew Johnson, Amnesty Proclamations by President Lincoln and Johnson, as well as dozens of contemporary newspaper articles which suggest that at the time the Fourteenth Amendment was ratified, the term “officer of the United States” was broad enough to include the President.

VI. Hartwell and Mouat revisited

Having marshaled significant evidence to that the original public meaning of the phrase “officer of the United States” —both at the time of the Founding and the ratification of the Fourteenth Amendment—was broad enough to include elected officials generally and the President, in particular, we now look with fresh eyes at the two cases Blackman and Tillman cite in support of their conclusion to the contrary: United States v. Hartwell and United States v. Mouat.

A. United States v. Hartwell Supports Our Conclusion that the President is an Officer of the United States.

United States v. Hartwell was a criminal case brought under the Act of June 6, 1846, which criminalized embezzlement of public funds.331 [73 U.S. 385 (1867).] The Defendant was a clerk in the office of the assistant treasurer stationed at Boston.332 [Id. at 390-1.] The case focused on whether as a clerk, Hartwell was an “officer” within the meaning of the statute.333 [Id.] The Supreme Court said that he was.334 [Id. at 396-97.] Blackman and Tillman summarized the Court’s holding as follows:

Justice Noah Swayne wrote the majority opinion. He offered a two-part definition of an office. First, “[a]n office is a public station, or employment, conferred by the appointment of government.” Second, “[t]he term [office] embraces the ideas of tenure, duration, emolument, and duties.”

In Hartwell, the clerk “was appointed by the head of a department within the meaning of the constitutional provision upon the subject of the appointing power.” The court did not expressly connect the term “officer” in the embezzlement statute with the phrase “officer of the United States” in the Appointments Clause. However, the court’s discussion of the appointment being made by the head of the department suggests the two concepts were closely related—rightly so, in our view.335 [Blackman & Tillman.]

They then conclude that because “Presidents are not appointed by the government” but are instead “elected by the people,” they cannot be Officers of the United States.336 [ ]

As an initial matter, it bears repeating that Presidents are not “elected by the people.” They are elected by the Electoral College, which is as much an organ of the government as Congress or the Supreme Court is. Furthermore, as we showed in Section II.B, at the time of the Founding, the words “elect” and “appoint” were used interchangeably. Remember James Madison’s comment at the Constitutional Convention about the Electoral College we quoted above? “The option before us then lay between an appointment by Electors chosen by the people — and an immediate appointment by the people.” The Constitutional Convention chose the prior. The Joint Committee Report from North Carolina which we quoted in section IV.C, shows that this understanding of the word “appoint” continued at the time Justice Swayne was writing: “The voters are merely the appointing power, whose function is to select the representative.” In light of this linguistic insight, we think Presidents easily satisfy the Hartwell test.

We think the opinion supports our conclusion in at least two additional ways. First, as Blackman and Tillman note, the opinion does not use the full phrase “officer of the United States,” instead using the words “officer” and “public officer.” Yet it is clear that the Court is analyzing Hartwell’s position under the Appointments Clause. If there was an understood legal or colloquial distinction between “officers” and “officers of the United States,” we think Justice Swayne would have felt it necessary to use the latter phrase. Instead, we think the Hartwell opinion strengthens our view that all references to the President as an “officer” is evidence that he is an “officer of the United States.”

Second, we think the opinion supports our reading of the Impeachment Clause. This actually comes from Justice Miller’s dissenting opinion which argued that the Defendant fell outside the contours of the embezzlement statute because he had not been explicitly entrusted with the money by an act of Congress. But in reaching that conclusion, we couldn’t help but notice one of the sections that he quoted:

That the Treasurer of the United States, the treasurer of the mint of the United States, the treasurers and those acting as such of the various branch mints, all collectors of customs, all surveyors of customs acting also as collectors, all assistant treasurers, all receivers of public moneys at the several land offices, all postmasters, and all public officers of whatever character, be, and they are hereby, required to keep safely . . . all the public moneys collected by them.

Surely, Congress was not suggesting that the Treasurer of the United States, the treasurer of the mint of the United States, and other enumerated positions were not public officers. This is yet another example of the Alvin and the Chipmunks rule.

B. United States v. Mouat’s test misconstrues the Appointment Clause by ignoring the modifying clause

United States v. Mouat considered whether a paymaster’s clerk—appointed by a paymaster in the navy with the approval of the Secretary of the Navy—was entitled to mileage reimbursement under the Act of June 30, 1876.337 [124 U.S. 303 (1888).] The Act limited reimbursement to “actual traveling expenses” and prohibited “disbursing officers of the United States” from collecting “for mileages and transportation in excess of the amount actually paid.”338 [Id. at 305-306.] Writing for the majority, Justice Samuel Miller stated:

What is necessary to constitute a person an officer of the United States in any of the various branches of its service has been very fully considered by this Court in United States v. Germaine, 99 U. S. 508. In that case, it was distinctly pointed out that under the Constitution of the United States, all its officers were appointed by the President, by and with the consent of the Senate, or by a court of law or the head of a department, and the heads of the departments were defined in that opinion to be what are now called the members of the cabinet. Unless a person in the service of the government, therefore, 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.339 [Id. at 307.]

But, as pointed out in Section II.D.1 above, that is not actually what the Constitution says. The President, courts of law, and department heads do not appoint all of the officers of the United States. There is another category: those officers “whose Appointments are . . . otherwise provided for” elsewhere in the Constitution. Words, we note, that the Germaine Court failed to quote.

As such, we find Justice Miller’s statement that “Unless a person in the service of the government, therefore, 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,” to be simply wrong. It flies in the face of the express language of Article II. And we feel that both its rigid test—based as it was on an incomplete version of the Appointments Clause—and its suggestion that “Congress may have used the word ‘officer’ in some other connections in a more popular sense” should be disregarded as dicta.

As such, we actually think Blackman and Tillman are interpreting the historical record exactly backwards. Mouat is not a linguistic continuity of the original meaning of the phrase “officer of the United States” but rather a departure from it. As we have shown, the phrase was not a term of art at the time of the Founding. Instead, it referred broadly to almost all federal officials whose positions were established by law—be that the Constitution or a federal statute. And it was broad enough to encompass both elected officials generally and the President of the United States specifically.

That understanding—shared by Chief Justice Marshall in his opinion in Maurice and by Congress in the Postal Act—continued at the time of the drafting and ratification of the Fourteenth Amendment. As we have shown, the explicit text, legislative history, and ratification debates of the Fourteenth Amendment and legislative history of the Fifteenth Amendment—not to mention newspapermen across the country—consistently spoke of electing officers, including officers of the United States. And Congress, Presidential proclamations, newspapers, and academic works published around the time the Fourteenth Amendment was ratified routinely referred to the President and Vice-President as an “officer of the United States.” Blackman and Tillman stated that the burden was on “proponents of the view that Section 3’s ‘officer of the United States’-language includes the presidency” to “put forward evidence as probative as Mouat and Hartwell.”340 [Blackman & Tillman, supra note 5, at 31.] We think we have more than met that challenge.

CONCLUSION

There is plenty, frankly, that we do not know. We do not know the meaning of the word “insurrection” in the Fourteenth Amendment, or how that meaning would apply to recent events. We have not done historical research on if the Amendment is “self-executing.” We do not know many things about Section 3 of the Fourteenth Amendment. And we emphatically take no position on pending litigation other than the issue this paper addresses. We understand this piece is entering a complex national debate accompanying a presidential election. We would bury this paper with disclaimers if needed to get this point across that we cannot and will not answer many important questions surrounding these big topics. As is, we’ve settled for the first paragraph of our conclusion.

But this we know: The term “officer of the United States” in the 1789 Constitution is not a term of art. It thus applies to all “officers of the United States,” as a standard textualist interpretation of the phrase implies. There is no doubt that the person who holds the office of President of the United States becomes an officer of the United States when the person takes the Presidential Oath. Donald Trump was an officer of the United States.

Even assuming that was not the end of the matter, we also know this from a wide range of sources: At the time of the Fourteenth Amendment, the term “officer of the United States” included elected officials. Many references in that era refer to the President himself, as well as the Vice-President, as an “officer of the United States.” The historical record in 1868 confirms what has been true since 1789: The President of the United States is an officer of the United States.

Appendix A:

Selection Mechanism for Governors in the Early States

State / Selection Mechanism / Referred to as Appointment, Election, or Both? / Relevant Passages

Connecticut / General Election / Election / 1) Art. IV, § 1: “A general election for governor, lieutenant-governor, secretary of the state, treasurer and comptroller shall be held on the Tuesday after the first Monday of November, 1966, and quadrennially thereafter.” 2) Art. IV, § 2. Such officers shall hold their respective offices from the Wednesday following the first Monday of the January next succeeding their election . . .”

Delaware / Joint ballot of both houses / Appointment / Art 7: “A president or chief magistrate shall be chosen by joint ballot of both houses' to be taken in the house of assembly . . . and the appointment of the person who has the majority of votes shall be entered at large on the minutes and journals of each house,”

Georgia / Chosen by ballot by the General Assembly / Both / 1) Art. II: “On the first day of the meeting of the representatives so chosen, they shall proceed to the choice of a governor, . . . and of an executive council, by ballot out of their own body.”341 [Const. of Ga., art. II (177]; 2) Art. XXIV: “I, A B, elected governor of the State of Georgia, by the representatives thereof, do solemnly promise and swear that I will, during the term of my appointment, to the best of my skill and judgment, execute the said office faithfully and conscientiously' according to law, without favor, affection, or partiality; that I will, to the utmost of my power, support, maintain, and defend the State of Georgia, and the constitution of the same.”

Maryland / Joint ballot of both houses / Both / 1) XXV: “That a person of wisdom, experience, and virtue, shall be chosen Governor . . . on the second Monday in every year forever thereafter, by the joint ballot of both Houses (to be taken in each House respectively) deposited in a conference room; the boxes to be examined by a joint committee of both Houses, and the numbers severally reported, that the appointment may be entered”' 2) . . . if the ballots should again be equal between two or more persons, then the election of the Governor shall be determined by lot . . .”

Massachusetts / General Election / Election / 1) Chapter 2, Art. 2: The Governor shall be chosen annually: And no person shall be eligible to this office, unless at the time of his election; 2) Chapter 2, Art. 3: Those persons who shall be qualified to vote for Senators and Representatives within the several towns of this Commonwealth, shall, at a meeting, to be called for that purpose, on the first Monday of April annually, give in their votes for a Governor342 [https://constitutioncenter.org/the-constitution/historic-document-library/detail/massachusettsconstitution#:~: text=The%20Massachusetts%20Constitution%20of%201780,the%20other%20branches%20of%20government.]

New Hampshire / General Election / Election / Art. 42: The governor shall be chosen annually in the month of March . . . in case of an election by a plurality of votes through the state. . . And no person shall be eligible to this office, unless at the time of his election . . . 343 [https://www.nh.gov/glance/constitution.htm.]

New Jersey / Election by the Council & Assembly / Election / Article VII: “[T]he Council & Assembly jointly at their first Meeting, [] shall, by a Majority of Votes, elect some fit Person within the Colony to be a Governor for one Year, the Governor.”

New York / Election by freeholders of the State / Election / XVII: “. . . [T]he supreme executive power and authority of this State shall be vested in a governor; and that statedly, once in every three years . . . shall be, by ballot, elected governor . . . which elections shall be always held at the times and places . . .”344 [https://avalon.law.yale.edu/18th_century/ny01.asp.]

North Carolina / Joint ballot of both houses / Election / [T]he Senate and House of Commons, jointly at their first meeting after each annual election, shall by ballot elect a Governor for one year . . .”345 [https://avalon.law.yale.edu/18th_century/nc07.asp.]

Pennsylvania / Joint ballot of the general assembly and council / Election / Sec. 19: “All vacancies in the council that may happen by death, resignation, or otherwise, shall be filled at the next general election for representatives in general assembly, unless a particular election for that purpose shall be sooner appointed by the president and council. The president and vice-president shall be chosen annually by the joint ballot of the general assembly and council.”

Rhode Island / Election at the town, city, or ward meetings. / Election / 1)Art. VII, § 1: “The chief executive power of this State shall be vested in a Governor, who, together with a Lieutenant Governor, shall be annually elected by the people.”; 2) Art. 7 sec. 11 The compensation of the Governor . . . shall not be diminished during the term for which they are elected.; 3) Art. 8 sec. 1: The Governor . . . shall be elected at the town, city, or ward meetings, to be holden on the first Wednesday of April, annually.

South Carolina / Joint ballot of both houses / Election / 1) “[A]t every first meeting of the senate and house of representative1)s thereafter, to be elected by virtue of this constitution, they shall jointly in the house of representatives choose by ballot from among themselves or from the people at large a governor and commander-in-chief, a lieutenant-governor, 2) That every person who shall be elected governor and commander-in-chief of the State.; 3) That the qualifications of president . . . shall be the same as of members of the general assembly, and on being elected they shall take an oath of qualification in the general assembly.346 [https://avalon.law.yale.edu/18th_century/sc01.asp.]

Virginia / Joint ballot of both houses / Chosen/Appointment / A Governor, or chief magistrate, shall be chosen annually by joint ballot of both Houses (to be taken in each House respectively) . . . who shall not continue in that office longer than three years successively . . . Thomas Jefferson, Esq. be appointed Governor or Chief Magistrate of this Commonwealth.347 [While we did not find reference to either appointment or election in the original constitution, we found an an excerpt from the Journal of the House of Delegates from 1779: https://encyclopediavirginia.org/entrie ... gatesjune- 1-1779/]

Appendix B: Selection Mechanism for Judges in the Early States

State / Selection Mechanism / Referred to as Appointment, Election, or Both? / Relevant Passages

Connecticut / Nomination by the governor and appointment by the general assembly for Supreme Court and lower court / Appointment *Used the term election for probate court judges and justices of the peace, but I am not sure whether you wanted this information. (Art. IV, §§ 4-5) / 1) Art. IV, § 1:The judges of the supreme court and of the superior court shall, upon nomination by the governor, be appointed by the general assembly in such manner as shall by law be prescribed.; 2) Art. IV, § 3: Judges of the lower courts shall, upon nomination by the governor, be appointed by the general assembly in such manner as shall by law be prescribed, for terms of four years.

Delaware / -- / -- /Art. 12. The president and general assembly shall by joint ballot appoint three justices of the supreme court for the State, one of whom shall be chief justice, and a judge of admiralty, and also four justices of the courts of common pleas and orphans' courts for each county . . .”

Georgia / General Election / Election / “The judicial powers of this state shall be vested in a superior courts . . . The judges of the superior court shall be elected for the term of three years, removable by the governor.”348 [ https://founding.com/founders-library/g ... tution-of- 1789/]

Maryland / Appointment by Governor with advice and consent of the Council / Appointment / XLVIII: That the Governor, for the time being, with the advice and consent of the Council, may appoint the Chancellor, and all Judges and Justice…

Massachusetts / Appointment by Governor with advice and consent of the Council / Appointment / Chapter 2, Art. 9: All judicial officers . . . shall be nominated and appointed by the Governor, by and with the advice and consent of the Council;

New Hampshire / Appointment by Governor and Council / Appointment / Art. 46: All judicial officers . . . shall be nominated and appointed by the governor and council. . . . no appointment shall take place, unless a majority of the council agree thereto.

New Jersey / N/A / N/A / N/A

New York / Appointment by Commission of Senators and the Governor / Appointment / XXIII: That all officers [including Chancellor, and Justices of the Supreme Court], shall be appointed in the manner following[]: The assembly shall, once in every year, openly nominate and appoint one of the senators from each great district, which senators shall form a council for the appointment of the said officers, of which the governor . . . shall be president and have a casting voice, but no other vote; and with the advice and consent of the said council, shall appoint all the said officers.”

North Carolina / Appointment of the General Assembly by joint ballot of both houses / Appointment / XIII: “That the General Assembly shall, by joint ballot of both houses, appoint Judges of the Supreme Courts of Law and Equity, Judges of Admiralty . . . who shall be commissioned by the Governor . . . ”

Pennsylvania / Appointment by the President with the council / Appoint / Sec. 20: “The president, and in his absence the vice-president, with the council, five of whom shall be a quorum, shall have power to appoint and commissionate judges”

Rhode Island / Election by the two Houses in grand committee / Elected / Art. X Sec. 4: “The Judges of the Supreme Court shall be elected by the two Houses in grand committee.”349 [https://tile.loc.gov/storage-services/public/gdcmassbookdig/constitutionof00rh/constitutionof00rh.pdf.]

South Carolina / Chosen by ballot jointly by the general assembly and legislative council and commissioned by the president and commander-in-chief. / -- / That all other judicial officers shall be chosen by ballot, jointly by the general assembly and legislative council, and except the judges of the court of chancery, commissioned by the president and commander-in-chief . . .

Virginia / Appointed by joint ballot of the two Houses/ Appointment / The two Houses of Assembly shall, by joint ballot, appoint Judges of the Supreme Court of Appeals, and General Court, Judges in Chancery, Judges of Admiralty, Secretary, and the Attorney- General, In case of death . . . the Governor . . . shall appoint persons to succeed in office. House of Assembly or the Privy Council.350 [https://encyclopediavirginia.org/entries/the-constitution-of-virginia-1776/.]

Appendix C: Oaths that State Executive Officers took in Southern/future rebel states in the antebellum era

State / Oath

Alabama / Article VI, Section 1: The members of the General Assembly, and all officers, executive and judicial, before they enter on the execution of their respective offices, shall take the following oath or affirmation, to wit: "I solemnly swear (or affirm, as the case may be) that I will support the Constitution of the United States, and Constitution of the State of Alabama, so long as I continue a citizen thereof, and that I will faithfully discharge, to the best of my abilities, the duties of -------- according to law: so help me God.” Constitution of 1819.351 [Available at https://avalon.law.yale.edu/19th_century/ala1819.asp.]

Arkansas / SEC. 28. The appointment of all officers not otherwise directed by this constitution shall be made in such manner as may be prescribed by law; and all officers both civil and military acting under the authority of this State shall before entry on the duties of their respective offices take an oath or affirmation to support the Constitution of the United States and of this state and to demean themselves faithfully in office. Constitution of 1836 352 [Available at https://digitalheritage.arkansas.gov/cg ... additional.]

Florida / Section 11. Members of the General Assembly, and all officers, Civil or Military, before they enter upon the execution of their respective offices, shall take the following oath or affirmation: I do swear (or affirm,) that I am duly qualified, according to the Constitution of this State, to exercise the office to which I have been elected, (or appointed) and will, to the best of my abilities, discharge the duties thereof, and preserve, protect, and defend the Constitution of this State, and of the United States. Constitution of 1838.353 [Available at https://www.floridamemory.com/items/show/189087?id=8.]

Georgia / 1) Article I, Sec. 19. Every member of the senate or house of representatives shall, before he takes his Seat, take the following oath or affirmation. to wit: " I, A B, do solemnly swear (or affirm, as the case may be) that I have not obtained my election by bribery, treats, canvassing, or other undue or unlawful means, used by myself, or others by my desire or approbation, for that purpose; that I consider myself constitutionally qualified as a senator, (or representative,) and that, on all questions and measures which may come before me, I will give my Vote and so conduct myself as may, in my judgment, appear most conductive to the interest and prosperity of this State; and that I will bear true faith and allegiance to the same; and to the utmost of my power and ability observe, conform to, support, and defend the constitution thereof.; 2) Article II, Sec. 5. The governor shall, before he enters on the duties of his office, take the following Oath or affirmation: " I do solemly swear (or affirm, as the case may be) that I will faithfully execute the office of governor of the State of Georgia; and will, to the best of my abilities, preserve, protect , and defend the said State, and cause justice to be executed in mercy therein, according to the constitution and laws thereof.'"354 [Available at https://founding.com/founders-library/g ... stitution- of-1798/.]

Louisiana / Title VI, Article 90: “Members of the General Assembly, and all officers, before they enter upon the duties of their office, shall take the following oath or affirmation: "I (A B), do solemnly swear (or affirm) that I will support the Constitution of the United States and of this State, and that I will faithfully and impartially discharge and perform all the duties incumbent on me as, according to the best of my abilities and understanding, agreeably to the Constitution and laws of the United States and of this State; and I do further solemnly swear (or affirm) that since the adoption of the present Constitution, I, being a citizen of this State, have not fought a duel with deadly weapons within this State, nor out of it, with a citizen of this State, nor have I sent or accepted a challenge to fight a duel with deadly weapons with a citizen of this State, nor have I acted as second in carrying a challenge or aided, advised or assisted any person thus offending, so help me God."355 [Available at, e.g., Journal of the Convention to form a new Constitution for the State of Louisiana 96 (1852) copy apparently reproduced at https://en.wikisource.org/wiki/Louisian ... on_of_1852.]

Mississippi / Article VII, 1) Sect. 1. Members of the legislature, and all officers, executive and judicial, before they enter upon the duties of their respective offices, shall take the following oath or affirmation, to wit: "I solemnly swear (or affirm, as the case may be) that I will support the constitution of the United States, and the constitution of the state of Mississippi, so long as I continue a citizen thereof, and that I will faithfully discharge, to the best of my abilities, the duties of the office of__________________according to law. So help me God."; 2) Sect. 2. The legislature shall pass such laws to prevent the evil practice of duelling as they may deem necessary, and may require all officers before they enter on the duties of their respective offices, to take the following oath or affirmation: "I do solemnly swear (or affirm, as they case may be) that I have not been engaged in a duel, by sending or accepting a challenge to fight a duel, or by fighting a duel since the first day of January, in the year of our Lord one thousand eight hundred and thirty-three, nor will I be so engaged during my continuance in office. So help me God." Constitution of 1832 356 [Available at https://www.mshistorynow.mdah.ms.gov/is ... on-of-1832.]

North Carolina / Provision not found in Constitution.

South Carolina / Every person who shall be chosen or appointed to any office of profit or trust; before entering on the execution thereof, shall take the following oath: "I do solemnly swear, (or affirm), that I will be faithful, and true allegiance bear to the State of South Carolina, so long as I may continue a citizen thereof; and that I am duly qualified, according to the constitution of this State, to exercise the office to which I have been appointed; and that I will, to the best of my abilities, discharge the duties thereof, and preserve, protect, and defend the constitution of this State, and of the United States: So help me God.” Constitution of 1790, as amended in 1834.357 [Available at https://www.carolana.com/SC/Documents/s ... _1790.html.]

Tennessee / I. Every person who shall be chosen or appointed to any office of trust or profit, under this Constitution, or any law made in pursuance thereof, shall, before entering on the duties thereof, take an oath to support the Constitution of this State, and of the United States, and an oath of office. Constitution of 1835.358 [Available at https://www.tngenweb.org/law/constitution1835.html.]

Texas / Article VII, Section 1: "I, (A. B.) do solemnly swear (or affirm) that I will faithfully and impartially discharge and perform, all the duties incumbent on me as ------------, according to the best of my skill and ability, agreeably to the Constitution and laws of the United States and of this State: And I do further solemnly swear (or affirm) that since the adoption of this Constitution by the Congress of the United States, I being a citizen of this State, have not fought a duel with deadly weapons, within this State, nor out of it, nor have I sent or accepted a challenge to fight a duel with deadly weapons, nor have I acted as second in carrying a challenge, or aided, advised or assisted, any person thus offending -- so help me God." Constitution of 1845.359 [Available at https://usiraq.procon.org/sourcefiles/1 ... tution.pdf.]

Virginia / Provision not found in Constitution.

[admin]

Part 1 of 2

No. 23-719

In the
Supreme Court of the United States

DONALD J. TRUMP,
Petitioner,
v.
NORMA ANDERSON, et al.,
Respondents.

On Writ of Certiorari to the Supreme Court of Colorado

BRIEF OF AMICI CURIAE J. MICHAEL LUTTIG, PETER KEISLER, LARRY THOMPSON, STUART GERSON, DONALD AYER, ET AL., IN SUPPORT OF THE ANDERSON RESPONDENTS

Matthew W. Edwards
1300 19th Street NW, Suite 300
Washington, DC 20036

Nancy A. Temple
Katten & Temple, LLP
209 S. LaSalle Street, Suite 950
Chicago, IL 60604

Richard D. Bernstein
Counsel of Record
1875 K Street NW, Suite 100
Washington, DC 20006
(301) 775-2064
rbernsteinlaw@gmail.com

Counsel for Amici Curiae

January 29, 2024

TABLE OF CONTENTS

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i
TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . . iii
TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . iv
INTEREST OF AMICI CURIAE . . . . . . . . . . . . . . . . . . 1
INTRODUCTION A ND SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
I. STATE COURTS AND THIS COURT HAVE THE JUDICIAL POWER TO DECIDE A PRESIDENTIAL DISQUALIFICATION DISPUTE. . . . . . . . . . . .
A. The Electors Clause Allocates This Power To The States, Subject To This Court’s Article III Judicial Review. . . . . . . . . . . . . . 3
B. No Amendment Repeals This Allocation Of Judicial Power. . . . . . . . . . . . . . . . . . . . . . . 8
1. Section 5 of the Fourteenth Amendment . . . . . . . . . . . . . . . . . . . . . . . 8
2. Section 3 of the Fourteenth Amendment . . . . . . . . . . . . . . . . . . . . . . 10
3. The Twelfth Amendment . . . . . . . . . . . 13
4. The Twentieth Amendment . . . . . . . . . 15
C. The Political Question Doctrine Does Not Apply. . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
D. Federalism And Separation Of Powers Support Traditional Court Adjudication Rather Than Sole, Unreviewable Congressional Power. . . . . . . . . . . . . . . . . . . 16
II. THE FAIR MEANING OF SECTION 3 DISQUALIFIES FORMER PRESIDENT TRUMP. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
A. Section 3 Must Be Accorded Its Fair Meaning, Not A Narrow Construction . . . 19
B. The “President Of The United States” Is An “[O]fficer of the United States” . . . . 21
C. The January 6, 2021 Armed Attempt To Prevent The Peaceful Transfer Of Executive Power Was An “Insurrection . . . Against The” Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . 24
D. Mr. Trump “Engaged In” The Insurrection . . . . . . . . . . . . . . . . . . . . . . . . . 28
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
TABLE OF APPENDICES
APPENDIX A — LIST OF AMICI CURIAE . . . . . . . 1a
Amy Warwick (The Prize Cases), 67 U.S. 635 (1862) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
ASARCO Inc. v. Kadish, 490 U.S. 605 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Barry v. United States ex rel. Cunningham, 279 U.S. 597 (1929) . . . . . . . . . . . . . . . . . . . . . . . 5, 6, 15
Brandbenburg v. Ohio, 395 U.S. 444 (1969) . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Bush v. Gore, 531 U.S. 98 (2000) . . . . . . . . . . . . . . . . . . . . . . . . 6, 7, 16
Chiafalo v. Washington, 140 S. Ct. 2316 (2020) . . . . . . . . . . . . . . . . . 6, 11, 13, 26
Cooper v. Aaron, 358 U.S. 1 (1958) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
District of Columbia v. Heller, 554 U.S. 570 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Hassan v. Colorado, 495 F. App’x 947 (10th Cir. 2012) . . . . . . . . . . . . . . . . . 6
Cited Authorities
In re Canvass of Absentee and Mail-In Ballots of Nov. 3, 2020 Gen. Election, No. 31 EAP 2020, 241 A.3d 1058 (Pa. Nov. 23, 2020) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
In re Canvassing Observation, 241 A.3d 339 (Pa. Nov. 17, 2020) . . . . . . . . . . . . . . . . 30
In re Charge to Grand-Jury Treason, 30 F. Cas. 1047 (C.C.E.D. Pa. 1851) . . . . . . . . . . . . . . 29
In re Griffin, 11 F. Cas. 7 (Cir. Ct. D. Va. 1869) . . . . . . . . . . . . . . . . 9
Johnson v. Sec’y of State, 951 N.W.2d 310 (Mich. Dec. 9, 2020) . . . . . . . . . . . . . 29
Law v. Whitmer, No. 82178, 477 P.3d 1124 (Nev. Dec. 8, 2020) . . . . . . 30
McPherson v. Blacker, 146 U.S. 1 (1892) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
New York v. United States, 505 U.S. 144 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Northern Sec. Corp v. United States, 193 U.S. 197 (1904) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Seila Law LLC v. Consumer Fin. Prot. Bureau, 140 S. Ct. 2183 (2020) . . . . . . . . . . . . . . . . . . . . . . . . . 26
Shelby County v. Holder, 570 U.S. 529 (2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Texas v. Pennsylvania, 141 S. Ct. 1230 (Dec. 11, 2020) . . . . . . . . . . . . . . . . . . 29
Thomas v. Loney, 134 U.S. 372 (1890) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Trump v. Biden, 951 N.W.2d 568 (Wis. Dec. 14, 2020) . . . . . . . . . . . . . 29
United States v. Burr, 25 F. Cas. 30 (C.C.D. Va. 1807) . . . . . . . . . . . . . . . . . 25
Ward v. Jackson, No. CV-20-0343, 2020 WL 8617817 (Ariz. Dec. 8, 2020) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Statutes 3 U.S.C. § 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
18 U.S.C. § 2383 . . . . . . . . . . . . . . . . . . . . . . . . 9, 11, 12, 16
28 U.S.C. § 453 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
28 U.S.C. § 1257 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8
U.S. Const. amend. XII . . . . . . . . . . . . . . . . . . . . . . . . 1, 13
U.S. Const. amend XIV, § 3 . . . . . . . . . . . 2, 6, 7, 10, 11, 19
U.S. Const. amend. XX . . . . . . . . . . . . . . . . . . . . . . . . 1, 15
U.S. Const. amend. XX, § 3 . . . . . . . . . . . . . . . . . . . . . . . 15
U.S. Const. art. I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3
U.S. Const. art. I § 2, cl. 5 . . . . . . . . . . . . . . . . . . . . . . . . . 9
U.S. Const. art. I § 3, cl. 6 . . . . . . . . . . . . . . . . . . . . . . . 4, 9
U.S. Const. art I, § 4 cl. 1 . . . . . . . . . . . . . . . . . . . . . . . . 10
U.S. Const. art I, § 5 . . . . . . . . . . . . . . . . 4, 5, 6, 10, 14, 15
U.S. Const. art I, § 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
U.S. Const. art I, § 8 cl. 17 . . . . . . . . . . . . . . . . . . . . . . . . . 9
U.S. Const. art I, § 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
U.S. Const. art. II, § 1, cl. 1 . . . . . . . . . . . . . . . . 2, 6, 21, 24
U.S. Const. art. II, § 2, cl. 2 . . . . . . . . . . . . . . . . . . . 14, 18
U.S. Const. art. II, § 1, cl. 3 . . . . . . . . . . . . . . . . . . . . 14, 25
U.S. Const. art. III, § 1 . . . . . . . . . . . . . . . . . . . . . . . . . . 11
U.S. Const. art. III, § 2, cl. 2 . . . . . . . . . . . . . . . . . . . . . . . 7
U.S. Const. art. VI, cl. 2 . . . . . . . . . . . . . . . . . . . . . . . . . 19
Other Sources
R. Bernstein, “Lots of People Are Disqualified from Becoming President,” Atlantic (Feb. 4, 2021) https://www.theatlantic.com/ideas/ archive/2021/02/trump-disqualificationpresident/617908/ . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Samuel Bray, “Officer of the United States” in Context, Reason (Jan. 22, 2024) https:// reason.com/volokh/2024/01/22/officer-of-theunited-states-in-context/. . . . . . . . . . . . . . . . . . . . . . . 23
Chronology of Events Leading to Secession Crisis, American Historical Association https://www. historians.org/teaching-and-learning/teachingresources-for-historians/sixteen-monthsto-sumter/chronology . . . . . . . . . . . . . . . . . . . . . . . . . 27
Cong. Globe, 39th Cong., 1st Sess. 2918 (May 31, 1866) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
John Eastman’s Second Memo on “January 6 Scenario,” Wash. Post (Oct. 29, 2021), https://www. washingtonpost.com/context/john-eastman-ssecond-memo-on-january-6-scenario/b3fd2b0af931-4e0c-8bac-c82f13c2dd6f/ . . . . . . . . . . . . . . . . . . 15
J. Elliot, The Debates in the Several State Conventions (J. Elliot ed., 2d ed. 1836) . . . . . . . . . . . 25
J. Heilpern & M. Worley, Evidence that the President Is an “Officer of the United States” for Purposes of Section 3 of the Fourteenth Amendment (Jan. 1, 2024) https://papers.ssrn.com/sol3/ Delivery.cfm/SSRN_ID4681108_code2677999. pdf?abstractid=4681108&mirid=1 . . . . . . . . . . . . . . 22
S. Johnson, A Dictionary of the English Language (4th ed. 1773) . . . . . . . . . . . . . . . . . . . . . . . 13
P. Keisler & R. Bernstein, Freedom of Speech Doesn’t Mean What Trump’s Lawyers Want It to Mean, Atlantic (Feb. 8, 2021) https://www.theatlantic. com/ideas/archive/2021/02/first-amendmentno-defense-against-impeachment/617962/ . . . . . . . . 32
J. Kent, Commentaries on American Law (11th ed. 1866) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
James Madison, Federalist No. 48 . . . . . . . . . . . . . . . . . 17
James Madison, Federalist No. 78 . . . . . . . . . . . . . . . . . 17
J. McPherson, Battle Cry of Freedom (1988) . . 20, 27, 28
Michael Pence, Vice President’s Letter to Congress (January 6, 2021), https://int. nyt.com/data/documenttools/pence-letteron-vp-and-counting-electoral-votes/ 9d6f117b6b98d66f/full.pdf . . . . . . . . . . . . . . . . . . . . . 23
R. Parloff, What Scalia Thought About Whether Presidents Are “Officers of the United States,” Lawfare (Jan. 24, 2024) https:// http://www.lawfaremedia.org/article/wha ... residents- are-officers-of-the-united-states . . . . . . . . . . . . . . . . 22
A. Scalia & B. Garner, Reading Law (2012) . . . . . . 19, 23
Ilya Somin, Insurrection, Rebellion, and January 6: Rejoinder to Steve Calabresi, Reason (Jan. 6, 2024) https://reason.com/ volokh/2024/01/06/insurrection-rebellionand-january-6-rejoinder-to-steve-calabresi/ ?itm_source=parsely-api . . . . . . . . . . . . . . . . . . . . . . 25
South Carolina convention, Declaration of the Immediate Causes Which Induce and Justify the Secession of South Carolina from the Federal Union https://www.learningforjustice. org/classroom-resources/texts/hard-history/ declaration-of-the-immediate-causes-whichinduce-and-justify-secession . . . . . . . . . . . . . . . . . . . 27
2 J. Story, Commentaries on the Constitution § 831 (1833) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
J. Story, Commentaries on the Constitution of the United States § 423 at 300 (2d ed. 1858) . . . . . . 19
St. George Tucker, Blackstone’s Commentaries: With Notes of Reference to the Constitution and Laws of the Federal Government of the United States and of the Commonwealth of Virginia, App. 200-205 (1803) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
The Reconstruction Acts, 12 Op. Att’y Gen. 141 (1867) . . . . . . . . . . . . . . . . . . . . 29
The Reconstruction Acts, 12 Op. Att’y Gen. 182 (1867) . . . . . . . . . . . . . . . . . . . . 29
Washington’s Farewell Address (1796) https:// http://www.govinfo.gov/content/pkg/GPO- ... sdoc21.pdf . . . . . . . 26

INTEREST OF AMICI CURIAE

The amici listed in Appendix A submit this brief. Amici include former officials who worked in the last six Republican administrations, senior officials in the White House and Department of Justice, and others who support a strong, elected Presidency.1 Reflecting their experience, amici have an interest in defending the peaceful transfer of power to a newly-elected President that is required by Article II and the Twelfth and Twentieth Amendments and is protected against insurrection by Section 3 of the Fourteenth Amendment. Amici speak only for themselves personally and not for any entity or other person.

INTRODUCTION AND SUMMARY OF ARGUMENT

This brief focuses on two textualist points. First, it would violate the rule of law and textualism for this Court to create an off-ramp to avoid adjudicating whether Mr. Trump is disqualified. The power to decide a dispute about a presidential candidate’s constitutional qualifications is a judicial power that has been vested by the Electors Clause initially in the States, and by Article III’s grant of appellate jurisdiction ultimately in this Court. Section 5 of the Fourteenth Amendment merely gives Congress power to legislate a judicial enforcement mechanism in addition to this pre-existing judicial power of the States and this Court.

Mr. Trump does not argue that the Constitution gives Congress judicial power over a presidential qualifications dispute. Section 5 of Article I gives Congress the power only to “be the Judge of the . . . Qualifications of its own Members.” In contrast, Section 3 of the Fourteenth Amendment merely checks the judicial power of the courts by giving Congress the power by two-thirds vote to remove, for any reason, disqualification under Section 3, even after it has been judicially adjudicated.

Second, the terms of Section 3 of the Fourteenth Amendment disqualify Mr. Trump. The Court should heed the warning of Justice Holmes that cases of “immediate overwhelming interest” often “make bad law.” Northern Sec. Corp. v. United States, 193 U.S. 197, 400-01 (1904) (Holmes, J., dissenting). Particularly because Section 3 emerged from the hallowed ground of the Civil War, this Court must accord Section 3 its fair meaning, not a narrow construction. Mr. Trump was “President of the United States.” U.S. Const. art. II, § 1, cl. 1. He never disputes that the President is an “officer.” It follows, as the Fourteenth Amendment generation understood, that the “President of the United States” is an “officer of the United States.” Mr. Trump incited, and therefore engaged in, an armed insurrection against the Constitution’s express and foundational mandates that require the peaceful transfer of executive power to a newly-elected President. In doing so, Mr. Trump disqualified himself under Section 3.

ARGUMENT

I. STATE COURTS AND THIS COURT HAVE THE JUDICIAL POWER TO DECIDE A PRESIDENTIAL DISQUALIFICATION DISPUTE.

Resolving individual disputes of a presidential candidate’s qualifications is an exercise of judicial power. Under federalism and separation of powers, state and federal courts exercise judicial power, except for Article I’s two grants of enumerated judicial powers to Congress. Neither of those grants even arguably applies here. And no constitutional amendment changes the allocation of judicial power here.

A. The Electors Clause Allocates This Power To The States, Subject To This Court’s Article III Judicial Review.

The Constitution limits Congress to the two judicial powers enumerated in Article I. The founding generation understood this. The oft-cited treatise of St. George Tucker explained that the Constitution vested

[t]he judicial powers (except in the cases particularly enumerated in the first article) in the courts; the word the, used in defining the powers of the executive, and of the judiciary, is, with these exceptions, co-extensive in its signification with the word all: . . . .

[Congress] is neither established as [a judicial court] by the constitution (except in respect to its own members,) nor has it been, nor can it be established by authority of congress; for all the courts of the United States must be composed of judges commissioned by the president of the United States, and holding their offices during good behaviour, and not by the unstable tenure of biennial elections.

St. George Tucker, Blackstone’s Commentaries: With Notes of Reference to the Constitution and Laws of the Federal Government of the United States and of the Commonwealth of Virginia, App. 200-205 (1803) (first and last emphasis added).

The constitutional provisions on impeachment provide one of only two “particularly enumerated” grants of judicial power to Congress. Article I, section 3, clause 6 states: “The Senate shall have the sole Power to try all Impeachments.” (Emphasis added). Clause 6 also refers to the person subject to impeachment being “convicted” by “the Concurrence of two thirds of the Members present.” And the next clause refers to “Judgment in Cases of Impeachment.” Article II, Section 4, in turn subjects to Impeachment “[t]he President, the Vice President, and all civil Officers of the United States.”

In contrast, in the second grant of an enumerated judicial power to Congress, the Constitution gives Congress no judicial power concerning the President, the Vice President, and all civil officers. This second grant is in Section 5 of Article I: “Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members[.]” (Emphasis added). Justice Story explained the reason that this judicial power concerning “Members” was given to Congress: “If lodged in any other, than the legislative body itself, its independence, its purity, and even its existence and action may be destroyed, or put into imminent danger.” 2 J. Story, Commentaries on the Constitution § 831 (1833).

As the text of Article I, Section 5 confirms, this rationale does not support any power of Congress to “be the Judge of the . . . Qualifications of” the President or any officer of the United States. The founding generation would have considered it unthinkable to give Congress an unreviewable power, by a bare majority, to disqualify a President or a cabinet member when the facts or legal principles are in dispute. As James Madison explained in Federalist No. 48: “The legislative department is everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex.” Madison warned against “legislative usurpations, which, by assembling all power in the same hands, must lead to the same tyranny as is threatened by executive usurpations.” He thus stated that the Constitution did not make “[t]he judiciary and executive members . . . dependent on the legislative . . . for their continuance in” office. Id. (emphasis added). “An ELECTIVE DESPOTISM was not the government we fought for;” but rather the founding generation fought for a government with the “effectual[] check[s] and restraint[s]” of separation of powers. Id.

In Section 5 of Article I, however, the word “Judge” does reflect the founding generation’s understanding that it is an exercise of judicial power to decide disputed factual and legal questions about whether a particular person is qualified to hold office. Accordingly, Barry v. United States ex rel. Cunningham, 279 U.S. 597 (1929), holds that when a house of Congress exercises power over a dispute about “elections, returns, and qualifications” of that house’s members, that house “acts as a judicial tribunal.” Id. at 616. The power to decide such a dispute is “judicial in character,” and its exercise “necessarily involves the ascertainment of facts . . . to determine the facts and to apply the appropriate rules of law, and, finally, to render a judgment . . . .” Id. at 613. Before Barry, Thomas v. Loney, 134 U.S. 372 (1890), also had held that Section 5 of Article 1 gives each House “judicial power” and each House acts as a “judicial tribunal.” Id. at 374- 75. Although Barry and Loney involved elections, their rationale expressly applied to qualifications as well. As it must, because “Judge” in Article I, Section 5 applies to “Elections, Returns and Qualifications.”

In stark contrast to congressional qualifications, the Constitution confers the judicial power to adjudicate presidential qualifications first on the state officials and courts designated by state law, and ultimately on the Supreme Court. To start, the Electors Clause in Article II, Section 1 confers power on each State to “direct” the “Manner” of “appoint[ing]” presidential electors. Each state’s “far-reaching authority over presidential electors,” Chiafalo v. Washington, 140 S. Ct. 2316, 2324 (2020), includes the “power to impose conditions on the appointment of electors,” id. at 2324 n.6. Thus, "a state’s legitimate interest in protecting the integrity and practical functioning of the political process permits it to exclude from the ballot candidates who are constitutionally prohibited from assuming office.” Hassan v. Colorado, 495 F. App’x 947, 948 (10th Cir. 2012) (Gorsuch, J.) (emphasis added). The Electors Clause also gives each state the power to authorize state officials and state courts “to oversee election disputes,” Bush v. Gore, 531 U.S. 98, 113-14 (2000) (Rehnquist, C.J., concurring). A dispute over a presidential candidate’s qualifications under federal law is certainly one very important kind of presidential election dispute.

Even without the Electors Clause, as a matter of federalism, generally state law may authorize state courts to interpret and apply “federal law,” even when Congress has not created a justiciable cause of action. ASARCO Inc. v. Kadish, 490 U.S. 605, 617 (1989). The only exception is when the Constitution or a valid federal statute contains “a provision for exclusive federal jurisdiction.” Id.

Section 2 of Article III of the Constitution directly gives the Supreme Court appellate jurisdiction, “both as to law and fact,” of “all cases, in law and equity, arising under this Constitution, [and] the laws of the United States,” except in cases where this Court has original jurisdiction. The ubiquitous “all cases” include disputes in state court raising federal issues about a presidential candidate’s qualifications under the Constitution.2 As Bush v. Gore held, when disputes arise relating to a presidential election, after initial resolution by the state officials or state courts designated by state law, it is “our unsought responsibility to resolve the federal and constitutional issues the judicial system has been forced to confront.” 531 U.S. at 111 (per curiam) (emphasis added). After that resolution, the Constitution’s Supremacy Clause mandates that all state legislatures, officials, and courts abide by final Supreme Court rulings on issues of federal law. Cooper v. Aaron, 358 U.S. 1, 4, 18-20 (1958).

To summarize, under the Electors Clause and federalism, state courts and election officials initially have authority to adjudicate whether a candidate for President is disqualified by the Constitution. Next, under Article III’s authorization of appellate jurisdiction and 28 U.S.C. § 1257, this Court reviews such a ruling and makes the final judicial decision whether a presidential candidate is disqualified. Finally, under the Supremacy Clause, the Supreme Court’s ruling is binding in all 50 States. That refutes any suggestion that only Congress can prevent inconsistent rulings between courts in different states on whether a presidential candidate is disqualified.

B. No Amendment Repeals This Allocation Of Judicial Power.

Nothing in any constitutional amendment limits the pre-existing power of state courts and ultimately the Supreme Court to adjudicate a presidential qualifications dispute before the election. And Mr. Trump does not argue that any constitutional amendment confers a power on Congress to adjudicate this case of disputed presidential qualifications.

1. Section 5 of the Fourteenth Amendment: Section 5 states: “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” (Emphasis added). Nothing in these fifteen words deprives the states of their pre-existing power, subject to this Court’s review, to adjudicate a presidential candidate’s constitutional qualifications. See Part I.A., supra. Section 5 says “power,” not “the power”—much less “exclusive” or “sole power.” Compare Art. I, § 2, cl. 5, and § 3, cl. 6. (“the sole Power”); Art. I, § 8, cl. 17 (“exclusive Legislation”). Nor does Section 5 state “No State shall” as Section 1 does. See also Art. I, § 10 (“No State shall” used for more than 15 prohibitions). Nor does one word in Section 5 permit any distinction between Congress’s power to enforce Section 3 versus Section 1. Rather, as to Section 3 and Section 1, Section 5 gives Congress “power” to legislate an additional enforcement mechanism, and does not negate the preexisting adjudicatory power of state courts, subject to Supreme Court review, to enforce the Constitution.

For similar reasons, Mr. Trump misplaces reliance on In re Griffin, 11 F. Cas. 7 (Cir. Ct. D. Va. 1869). Nothing in Griffin involved, addressed, or limited either a state court’s pre-existing power under the Electors Clause to decide a presidential qualifications dispute or this Court’s Article III appellate jurisdiction over such a state court decision.

Mr. Trump is also wrong that 18 U.S.C. § 2383 “is the exclusive means of enforcing section 3.” Pet’r’s Br. at 40. Like most criminal statutes, Section 2383 contains nothing like an exclusive jurisdiction provision. And it was originally adopted in the Second Confiscation Act of 1862, 12 Stat. 589, before the Fourteenth Amendment was enacted.

Moreover, exclusive federal court jurisdiction concerning who is eligible to be elected President would be in tension with the powers that the Electors Clause confers on States, but not Congress. The Electors Clause contrasts with the Elections Clause in Article I, Section 4, Clause 1. The Elections Clause gives Congress power to “make or alter . . . regulations” on the “Manner” of holding congressional elections, but the Electors Clause gives Congress no such power concerning presidential elections. Shelby County v. Holder, 570 U.S. 529 (2013), held that Congress’s power under Section 2 of the Fifteenth Amendment to enact “appropriate legislation” does not authorize legislation that violates federalism. Id. at 538, 543. For similar reasons, it would not be “appropriate legislation” under Section 5 of the Fourteenth Amendment for a statute to nullify a state court’s traditional power to decide a presidential qualification dispute, subject to Supreme Court review.

Finally, Mr. Trump does not argue that Section 5 confers any judicial power on Congress. “[L]egislation” is a product of legislative power, not judicial power. And, unlike an adjudication, the Constitution, in Article 1, Section 7, Clause 2, requires that all legislation be presented to the President for signature or veto.

2. Section 3 of the Fourteenth Amendment: The last sentence of Section 3 reads: “But Congress may by a vote of two-thirds of each House, remove such disability.” The words “[ b]ut” and “remove” connote that the disability existed before Congress votes.

Mr. Trump does not argue that the last sentence of Section 3 confers a power on Congress to adjudicate whether there was a disability before its removal. See Pet’r’s Br. at 41-42. Indeed, “vote” to “remove such disability” in Section 3 stands in stark contrast to “Judge” in Article I, Section 5 and “try,” “convicted,” and “Judgment” in Article I, Section 3, clauses 6 and 7. See supra, at pp. 4-6. Two-thirds of Congress may “vote” to remove a pre-existing disability for any reason, including that the disqualified person has reformed or for pure politics. And Congress need not hear evidence or otherwise satisfy procedural due process.

Mr. Trump instead argues that the combination in Section 3 of the phrase “hold any office” and Congress’s power by two-thirds “vote” to “remove such disability” nullifies a state court’s power to adjudicate (subject to this Court’s review) a Section 3 presidential qualification dispute before election day. Pet’r’s Br. at 41-46. This is wrong. To start, courts may adjudicate before election day three other presidential disqualifications that use “hold” or similar words. First, a criminal conviction under 18 U.S.C. § 2383 for insurrection renders a person “incapable of holding any office under the United States.” Neither Mr. Trump nor anyone else suggests that such a federal criminal case cannot be adjudicated before election day.

Second, the Twenty-Second Amendment states, “[n]o person shall be elected to the office of the President more than twice.” A President is “elected” under Article III, Section 1 and the Twelfth Amendment no earlier than when “[t]he Electors . . . vote by ballot for President” in mid-December. See Chiafalo, 140 S. Ct. at 2321, 2325 (the electors “do indeed elect a President”). Obviously, the Twenty-Second Amendment does not render a state court powerless before election day to prevent Barack Obama and George W. Bush from running on that state’s ballot for a third term.

Third, Article I, Section 3, Clause 7 gives the Senate power, after impeachment and conviction, to enter a judgment of “disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States.” (Emphasis added.) Of course, a state may give its courts power to enforce this “disqualification to hold” by barring a disqualified person from running.

Equally unavailing is Mr. Trump’s reliance on the fanciful possibility that Congress by two-thirds vote might remove his disability. This does not deprive the courts of their traditional ability to adjudicate a disqualification before election day. In the other instances discussed above—the bars of 18 U.S.C. § 2383, the Twenty-Second Amendment, and disqualification by the Senate—the candidate could assert an equally unlikely fantasy that two-thirds of Congress might propose and the States might ratify a constitutional amendment that removes the disability.

Rather, the words “remove such disability” in the Fourteenth Amendment confirm that the candidate is currently disqualified and will remain disqualified, unless and until there is an affirmative vote by two-thirds of Congress to “remove” that disqualification. It makes no sense to put off the judicial determination of whether someone is qualified, and the potential subsequent removal of the disability by Congress, until after the election has been run. That would deprive voters of the ability to make a truly informed decision, because they could not know if they were voting for someone who cannot serve. And it would risk chaos as courts litigate whether a newly-inaugurated President is disqualified at the same time the country needs a President to be indisputably occupying the office and making enormously consequential decisions—including as commander-in-chief, appointer of cabinet members, leader of the executive branch, vetoer of bills, etc. It is difficult to believe that the framers of the Fourteenth Amendment added Section 3 intending that the new clause operate in a way that deprives both voters of the ability to make an informed decision and ultimately-eligible Presidents of the ability to govern effectively from the outset.

3. The Twelfth Amendment: Mr. Trump does not argue that the Twelfth Amendment deprives state courts or this Court of jurisdiction to decide this case or gives Congress power to do so. The Twelfth Amendment left the Electors Clause intact. See McPherson v. Blacker, 146 U.S. 1, 26 (1892). Under the Electors Clause, each state “exclusively,” id. at 27, makes the “apportionment of responsibility” as to which bodies “oversee [presidential] election disputes.” Bush v. Gore, 531 U.S. at 113-14 (Rehnquist, C.J., concurring). Here, the Colorado Supreme Court properly ruled that Colorado’s statutes apportioned the authority to decide this presidential disqualification dispute to Colorado’s Secretary of State and state courts, subject to this Court’s review.

The Twelfth Amendment vests no power in Congress to judge a dispute about a presidential candidate’s qualifications if, as here, (1) there are disputed facts or disputed legal questions and (2) state courts, subject to this Court’s review, have the power to adjudicate the dispute. The Twelfth Amendment repeats the words in the original Article II, Section 1, Clause 3, that after the certificates of electoral votes are opened, “the Votes shall then be counted.” The phrase “shall then be counted” refers to calculating. See S. Johnson, A Dictionary of the English Language (4th ed. 1773) (the verb “count” means “To number; to tell.”). “[S]hall then be counted” does not suggest a power of Congress to act as a court that substitutes for, or overrides, state courts or this Court.

The phrase “shall then be counted” contrasts sharply with the express power to “Judge” given by Article I, Section 5 to Congress but concerning only congressional elections and qualifications. “[S]hall then be counted” also contrasts with the broader word “determine” that Article II, Section 1, Clause 4 employed to give Congress other powers concerning a state’s conducting of a presidential election. Clause 4 provides: “The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes . . . .” Article II, Section 1, Clause 3, would not have used, and the Twelfth Amendment would not have repeated, the very different and narrower word “counted” to give Congress judicial powers to act as a substitute court for, or override, state courts or this Court concerning disputed presidential election results and qualifications.

The Court should ensure that nothing in its decision uses the Twelfth Amendment, or 3 U.S.C. § 15, to undermine the authority of each State, through its courts and election officials, to resolve disputes arising in connection with a presidential election, subject to review by this Court, rather than Congress. Only three years ago, Mr. Trump and his former counsel argued that the Twelfth Amendment conveys to the Vice President the ultimate power to override state court decisions and adjudicate who won a state’s electoral votes. See John Eastman’s Second Memo on “January 6 Scenario,” Wash. Post (Oct. 29, 2021) (linking to memo).3 Let’s not go anywhere near there again.

4. The Twentieth Amendment: Mr. Trump’s brief does not argue that the Twentieth Amendment has any bearing on this case. Section 3 of the Twentieth Amendment does not restrict the pre-existing power of state courts and the Supreme Court to adjudicate a presidential qualification dispute before election day. Nor does it assign any judicial power to Congress. Instead, it specifies that, on inauguration day, “if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified.” The use of “shall have failed” connotes that the putative President has failed to qualify without Congress doing anything. Again, Congress is given no power to “try” and “Judge” or anything that suggests a power to adjudicate. Moreover, the Twentieth Amendment was passed by Congress in March 1932, only three years after Barry v. United States ex rel. Cunningham, supra. If the Twentieth Amendment’s framers had intended to expand Congress’s limited judicial power to “Judge” beyond the “Qualifications of its own Members,” U.S. Const. art. I, § 5, to also include judicial power to judge the disputed qualifications of the President and Vice President, surely the Twentieth Amendment would say so expressly.

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Part 2 of 2

C. The Political Question Doctrine Does Not Apply.

Mr. Trump correctly does not argue that his case presents a nonjusticiable political question. First, there is no textual commitment by the Constitution to Congress of the power to adjudicate a presidential candidate’s disputed qualifications. The constitutional text shows the exact opposite. Part I.A–B, supra.

Second, there are judicially manageable standards for “insurrection against the” Constitution. See Part II.C, infra. Applying that term has a much firmer grounding in text and history than did applying “equal protection” to vote counting in Bush v. Gore. See 531 U.S. at 109 (“The contest provision, as it was mandated by the State Supreme Court, is not well calculated to sustain the confidence that all citizens must have in the outcome of elections.”); id. at 106-07.

Moreover, if there were no judicially manageable standards here, that would render unconstitutional 18 U.S.C. § 2383—which applies to “insurrection against the authority of the United States or the laws thereof.” And that statute is what Mr. Trump (incorrectly) argues is the proper and “exclusive means of enforcing section 3.” Pet’r’s Br. at 40.

D. Federalism And Separation Of Powers Support Traditional Court Adjudication Rather Than Sole, Unreviewable Congressional Power.

Mr. Trump’s amici claim that if his conduct disqualifies him, then Section 3 of the Fourteenth Amendment would be weaponized against others by partisan state courts and state officials. Such an anti-textual, policy argument has no place in this Court’s constitutional jurisprudence. As this Court held in Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022), “we cannot allow our decisions to be affected by extraneous influences,” including how the public and politicians may react. Id. at 291-92.

Moreover, Mr. Trump’s amici have the weaponization risk upside down. First, the court process that the Constitution requires for adjudication of a presidential qualification dispute provides the safeguards and checks of the rule of law, federalism, and separation of powers. This includes evidence, procedural due process, recusals of adjudicators for bias, a ban on ex parte contacts, lower court review, the final judicial decision by the Supreme Court, and potential removal of a disqualification by a two-thirds vote of Congress.

Particularly important is the responsibility of every Supreme Court Justice to fulfill his or her solemn oath or affirmation to “faithfully and impartially discharge and perform all the duties incumbent upon me as Justice under the Constitution and the laws of the United States. So help me God.” 28 U.S.C. § 453 (emphasis added). As Alexander Hamilton explained in Federalist No. 78, Justices—unlike politicians—have life tenure so that they will fulfill that responsibility.

Second, in contrast, if Congress has unreviewable power over Section 3 disqualifications, as some advocate, see Cruz Amici Br. at 12-13; Meijer Amicus Br. at 4-15, that would lack all the safeguards and checks of the rule of law, federalism, and separation of powers. Congress consists of partisan politicians. There would be no requirements for evidence, procedural due process, recusals for bias, or bans on ex parte contacts. Nor any role for the states or another branch of the federal government.

As bad, any exclusive, unreviewable power of Congress to adjudicate non-member disqualifications would go both ways. A bare majority in both houses of Congress could ignore even the clearest of presidential disqualifications—a third presidential term—without any possibility of review by the courts.

Perhaps worse, a bare partisan majority, freed from any possible judicial scrutiny, also could improperly and expansively torture the meaning of “giv[ing] aid or comfort to the enemies [of the Constitution]” in Section 3 of the Fourteenth Amendment to disqualify many citizens from running for or serving in Congress or “any office, civil or military, under the United States, or under any State.” Among others, “Judges of the Supreme Court” are “officers of the United States.” U.S. Const. art. II, § 2, cl. 2. An unreviewable Congress could disqualify a President, cabinet member, Justice, or anyone holding another covered federal or state position—including long after assuming office. Congress would have no reason to use the impeachment process, with its now-pointless requirement of a two-thirds concurrence in the Senate to convict.

Nothing could be more contrary to federalism and separation of powers than giving a bare majority in Congress such partisan power with no possibility of veto or review by this Court. The Constitution “divides power among sovereigns and among branches of government precisely so that we may resist the temptation to concentrate power in one location as an expedient solution to the crisis of the day.” New York v. United States, 505 U.S. 144, 187 (1992). This is especially prudent in our divided era, where members of Congress routinely censure each other, vote against confirming Justices on partisan grounds, and vote on impeachment on party lines.

II. THE FAIR MEANING OF SECTION 3 DISQUALIFIES FORMER PRESIDENT TRUMP.

A. Section 3 Must Be Accorded Its Fair Meaning, Not A Narrow Construction

The “textualist’s touchstone” is to give every constitutional provision its “fair meaning.” A. Scalia & B. Garner, Reading Law 356 (2012) (“Reading Law”) (emphasis in original). A narrow construction to promote judicial restraint is just as bad as an “unreasonably . . . enlarged” construction. Id. at 355-56. Scalia and Garner approvingly quote Justice Story that it is forbidden to narrowly construe a constitutional provision “‘as if it were subversive of the great interests of society, or derogated from the inherent sovereignty of the people.’” Id. at 355 (quoting 1 J. Story, Commentaries on the Constitution of the United States § 423, at 300 (2d ed. 1858)). Every provision of the Constitution is part of “the supreme Law of the Land,” U.S. Const. art. VI, cl. 2, not the inferior law of the land.

The duty to use “fair meaning” is especially compelling for Section 3 of the Fourteenth Amendment for two reasons. First, Section 3 has life only because it applies fully to those who violate its terms and still retain or regain enough popularity potentially to be elected or be appointed by elected officials. Section 3 would be a dead letter if the Court refused to apply it because an insurrectionist had popularity with large numbers of voters. Just as “it is not the role of this Court to pronounce the Second Amendment extinct,” District of Columbia v. Heller, 554 U.S. 570, 636 (2008), it is not the role of this Court to render Section 3 extinct.

President Donald J. Trump won the Iowa caucuses with the largest margin ever for a non-incumbent and the New Hampshire primary with the most votes of any candidate from either party. He is the presumptive Republican nominee and the leading candidate for President of the United States. In our system of “government of the people, by the people, [and] for the people,”1 the American people—not courts or election officials— should choose the next President of the United States. As this Court has explained: “The right to vote freely for the candidate of one’s choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government.” Reynolds v. Sims, 377 U.S. 533, 555 (1964).

Yet at a time when the United States is threatening sanctions against the socialist dictatorship in Venezuela for excluding the leading opposition candidate for president from the ballot,2 respondent Anderson asks this Court to impose that same anti-democratic measure at home. To date, at least 60 state and federal courts throughout the country have refused to remove President Trump from the ballot. The Colorado Supreme Court is the lone outlier, and this Court should reverse, for the reasons below, and protect the rights of the tens of millions of Americans who wish to vote for President Trump.

-- 02/05/24: REPLY BRIEF FOR THE PETITIONER

In February of 1861, delegates from seceding states convened in Montgomery, Alabama, formed the Confederate States of America, and elected Jefferson Davis president. They drafted a constitution that, as the Confederacy’s vice president Alexander H. Stephens proclaimed, established that “subordination to the superior race” is the “natural and moral condition” of Africans and their descendants....

-- 01/29/24: BRIEF OF AMICI CURIAE AMERICAN HISTORIANS IN SUPPORT OF RESPONDENTS

The congressional debates over amnesty demonstrate that decision-makers in Congress regarded Section 3 as disqualifying insurrectionists like Jefferson Davis, who had previously sworn to support the U.S. Constitution, from running for President, among other federal offices. The fervently partisan, anti-Confederate Republicans who crafted, backed, and voted for Section 3 worried that if the Amnesty Act of 1872 included Jefferson Davis, the lifting of his Section 3 disqualification would enable him to run for President on the Democratic ticket. During debates over the Act, Republican Senator James Flanagan of Texas advocated for excluding Davis from amnesty on this ground. He said:

“Now, sir, be it remembered that Jefferson Davis is living. He is not numbered with the dead. I think I understand the spirit of the South. I think I comprehend to some extent (for the man does not live who does comprehend to the whole extent) the intention of the Democrats of the country. If the disabilities of Jefferson Davis were removed, the Democrats would not find it necessary to ask the Congress of the United States to incorporate an additional amendment in the fundamental law to enable them to go broadcast throughout the civilized world to find candidates for the Presidency and Vice Presidency. No, sir; they would go no further than Jefferson Davis.”

-- 01/26/24: BRIEF FOR PROFESSORS ORVILLE VERNON BURTON, ALLAN J. LICHTMAN, NELL IRWIN PAINTER, JAMES M. MCPHERSON, MANISHA SINHA, ET AL. AS AMICI CURIAE IN SUPPORT OF RESPONDENTS

Second, the Civil War generation recognized that what started as an insurrection in a single state—the secession of South Carolina in December 1860—had metastasized into a Civil War. See The Brig Amy Warwick (The Prize Cases), 67 U.S. 635, 666 (1862) (“a civil war always begins by insurrection”). “More than 620,000 soldiers lost their lives in four years of conflict—360,000 Yankees and at least 260,000 rebels.” J. McPherson, Battle Cry of Freedom 854 (1988) (“Battle Cry”). Section 3 of the Fourteenth Amendment was the Civil War generation’s powerful deterrent to ensure that even an at-first localized insurrection would never again happen. See, e.g., Cong. Globe, 39th Cong., 1st Sess. 2918 (May 31, 1866) (Sen. Willey) (Section 3 “is a measure of self-defense. . . . [L]ooking to the future peace and security of the country.”). That deterrent worked for over 150 years. The task of interpreting that deterrent commands respect.

Finally, there are no special interpretive rules for the many constitutional provisions that render millions of citizens unable to be President, or to hold other federal offices. R. Bernstein, “Lots of People Are Disqualified from Becoming President,” Atlantic (Feb. 4, 2021).4 Section 3 and these other provisions are not improperly anti-democratic, but rather they set forth foundational rules of the Republic adopted by the People through ratification.

Indeed, the Electoral College is a similar foundational rule. The Electoral College has prevented the People’s first choice—the winner of the national popular vote— from being President five times (1824, 1876, 1888, 2000, and 2016).

Not much would remain of our Constitution if this Court narrowly enforced the Constitution’s provisions when they potentially frustrate large numbers of voters. The Electoral College, separation of powers, bicameralism, six-year rotating terms for Senators, judicial review, the First Amendment, the Second Amendment, and the many Amendments protecting criminal defendants—and much more—often lead to binding results that are contrary to the majority preferences of voters in many states and nationwide.

B. The “President Of The United States” Is An “[O]fficer of the United States.”

This brief will not repeat the overwhelming support that in 1868—the pertinent time—there was widespread understanding that “the President of the United States,” U.S. Const. art. II, § 1, cl. 1 (emphasis added), is an “officer of the United States.” See, e.g., Pet. App. at 70a-76a, ¶¶ 144- 160; J. Heilpern & M. Worley, Evidence that the President Is an “Officer of the United States” for Purposes of Section 3 of the Fourteenth Amendment (Jan. 1, 2024);5 1 J. Kent, Commentaries on American Law 334 (11th ed. 1866) (“The President is the great responsible officer for the faithful execution of the law . . . .” (emphasis added)).

Mr. Trump never disputes that the President is an “officer.” See Pet’r’s Br. at 24. Indeed, Mr. Trump concedes that the “Presidency is obviously an ‘office’” and the President is an “officeholder[].” Id. at 25-26, 28. His entire argument is “that the president is not an ‘officer of the United States.’” Id. at 20. But Article II does not define the President as merely “the president” full stop. The first sentence of Article II instead refers to the “President of the United States of America.” (Emphasis added).6 Given that there is no dispute that the President is an officer, the President must be an officer “of the United States of America.” Mr. Trump never suggests any other entity of which the President is an officer.

Mr. Trump’s brief, at 20-21, misplaces reliance on the use of “Officers of the United States” in three clauses of the Constitution as ratified in 1788. To start, others have demonstrated that these clauses support affirmance or are distinguishable. See, e.g., Anderson Br. at 39-43; R. Parloff, What Scalia Thought About Whether Presidents Are “Officers of the United States,” Lawfare (Jan. 24, 2024);7 Samuel Bray, “Officer of the United States” in Context, Reason (Jan. 22, 2024);8 Amar Amici Br. at 18- 21. Moreover, “context” means that “the same word or phrase” may have different interpretations in different documents. Reading Law, at 323.

Most important, Section 3 of the Fourteenth Amendment must be interpreted in light of “the understandings of those who ratified it.” N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 28 (2022). The understanding of Section 3’s terms around 1868 is dispositive because, as Reading Law recognizes, over time, words and phrases have “shifts in meaning.” Reading Law, at 419. This “historical development of word-senses” is why this seminal treatise has different listings for different groups of dictionaries for every 50-year period starting with “1750-1800” through “2001-present.” Id. at 419-25.

Ultimately, Mr. Trump is wrong, and former Vice President Pence was right. On January 6, 2021, when Vice President Pence refused to violate “my oath,” he wrote: “The President is the chief executive officer of the Federal Government under our Constitution.”9

C. The January 6, 2021 Armed Attempt To Prevent The Peaceful Transfer Of Executive Power Was An “Insurrection . . . Against The” Constitution.

Mr. Trump avoids addressing whether, on January 6, 2021, there was “an insurrection . . . against” “the Constitution of the United States.” There was. Mere political violence—such as violence connected with a KKK or BLM rally—is not, without more, “an insurrection . . . against” the Constitution. But here there was much more. The Colorado Supreme Court correctly held that there was an insurrection because there was a threatened and actual violent armed attempt by a large group of people “to preclude Congress from taking the actions necessary to accomplish a peaceful transfer of [executive] power.” Pet. App. at 86a-89a, ¶¶ 184-189.

The peaceful transfer of executive power is not merely a norm or tradition. It is the foundational mandate of Article II of the Constitution. Section 1, Clause 1 of Article II, often called the Executive Vesting Clause, provides:

The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows.

(Emphases added.)

As Edmund Randolph explained to the Virginia Ratifying Convention, this Executive Vesting Clause meant that a sitting President “may [not] hold his office without being reelected. He cannot hold it over four years, unless he be reelected, any more than if he were prohibited” from running for reelection to a second term. 3 The Debates in the Several State Conventions 486 (J. Elliot ed., 2d ed. 1836). Randolph stated that a President who loses re-election is “displaced at the end of the four years” by the Executive Vesting Clause. Id. And both Article II, Section 1, Clause 3 and the Twelfth Amendment state that when the electoral votes are “open[ed]” in Congress “and the votes shall then be counted,” whichever candidate has “a majority of the whole number of Electors appointed,” that candidate “shall be the President.”

As Chief Justice Marshall put it, “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.” United States v. Burr, 25 F. Cas. 30, 34 (C.C.D. Va. 1807) (Marshall, Circuit Judge) (emphasis added). The Twentieth Amendment reiterates the mandate that a President must peacefully relinquish power to his or her successor: “The terms of the President and Vice President shall end at noon on the 20th day of January . . . ; and the terms of their successors shall then begin.”

January 6, 2021 saw an insurrection against the Constitution because there was a threatened and actual use of armed force to thwart the counting of electoral votes that is mandated by the Twelfth Amendment, as part of the transfer of executive power that is required by the Executive Vesting Clause and the Twelfth and Twentieth Amendments. Accord Ilya Somin, Insurrection, Rebellion, and January 6: Rejoinder to Steve Calabresi, Reason (Jan. 6, 2024).10 First, the ultimate aim of the insurrection was to extend Mr. Trump’s time as President beyond the four-year termination required by those constitutional provisions. “To justify and check” the President’s “unique [authority] in our constitutional structure,” Article II “render[s] the President directly accountable to the people through regular elections.” Seila Law LLC v. Consumer Fin. Prot. Bureau, 140 S. Ct. 2183, 2203 (2020). The transfer of executive power after an incumbent President loses ensures “that here, We the People rule.” Chiafalo, 140 S. Ct. at 2328. As George Washington’s Farewell Address stated, it would “destroy[]” our constitutional system if “cunning, ambitious, and unprincipled men will be enabled to subvert the power of the people and to usurp for themselves the reins of government.” Washington’s Farewell Address, at 14 (1796).11

Second, the January 6, 2021 insurrection sought to prevent the vesting of the authority and functions of the Presidency in the newly-elected President. The Civil War generation certainly understood that the threat and use of force to prevent a newly-elected President from exercising executive power is an insurrection. Indeed, the activities of federal officials to prevent Lincoln’s inauguration were one basis for Section 3 of the Fourteenth Amendment. See Amar Amici Brief, at 6-16.

Moreover, “[t]he event that precipitated secession was the election of a president by a constitutional majority.” Battle Cry, at 248. On Nov. 10, four days after Lincoln won, South Carolina’s legislature called a convention to consider secession, and both of South Carolina’s U.S. Senators resigned.12 South Carolina seceded on December 20, 1860. That insurrection was 20 days before the next state seceded, see Battle Cry, at 235, and ten days before South Carolinians seized the federal arsenal at Charleston, see Chronology. The South Carolina convention’s Declaration of the Immediate Causes Which Induce and Justify the Secession of South Carolina from the Federal Union objected to:

the election of a man to the high office of President of the United States, whose opinions and purposes are hostile to slavery. He is to be entrusted with the administration of the common Government, because he has declared that that [sic] “Government cannot endure permanently half slave, half free,” and that the public mind must rest in the belief that slavery is in the course of ultimate extinction.13

(Emphasis added.)

As on January 6, 2021, the December 20, 1860 insurrection in South Carolina was against the forthcoming transfer of executive power to a newly-elected President. The basis of secession was not antipathy towards Congress. Republicans would not control either chamber of Congress until much later, in 1861 after secessionist Senators and representatives resigned. Before these resignations, one of the anti-secession arguments in the South was to negotiate because “it will be several years” before Republicans would control Congress. See Battle Cry, at 245-46 (quotations and citation omitted). And Chief Justice Roger Taney, a friend of slavery, still controlled the U.S. Supreme Court.

Of course, the cause of secessionists was uniquely odious—to protect slavery. But, in one geographical sense, Mr. Trump’s insurrection against the Executive Vesting Clause and the Twelfth and Twentieth Amendments was broader than the South Carolina insurrection that triggered the Civil War. Mr. Trump tried to prevent the newly-elected President Biden from governing anywhere in the United States. The South Carolina secession prevented the newly-elected President Lincoln from governing only in that State. The threat or use of armed force to prevent a newly-elected President from exercising executive power, whether on December 20, 1860 or January 6, 2021, is an insurrection against the Constitution.

D. Mr. Trump “Engaged In” The Insurrection.

Mr. Trump “engaged in” the insurrection because (1) inciting constitutes engaging in and (2) Mr. Trump incited the threat and use of violent force as his last opportunity to stop the peaceful transfer of executive power.

First, Attorney General Stanbery informed Congress that “inciting others to engage,” whether “by speech or by writing,” requires “disqualification.” The Reconstruction Acts, 12 Op. Att’y Gen. 182, 205 (1867); The Reconstruction Acts, 12 Op. Att’y Gen. 141, 164 (1867). This reflected well-known legal principles, applicable to treason among other crimes, that a person “is in law guilty of the forcible act” for “counselling” or “instigating others to perform” the violent act itself. In re Charge to Grand-Jury Treason, 30 F. Cas. 1047, 1048 (C.C.E.D. Pa. 1851). The Civil War generation surely understood that the insurrectionists included instigators of the seizing of federal forts or the firing on Fort Sumter, even if they let others do the fighting.

Second, even under de novo review and a clear-and-convincing evidence standard, Mr. Trump had the intent that the armed mob, at the very least, threaten physical force on January 6, 2021 in response to his speech on the Ellipse. Among other reasons this is clear and convincing is that Mr. Trump knew he had exhausted all his other options and yet still insisted he would remain President.

By December 14, 2020, (1) the electors certified by state officials had cast 306 electoral votes for Joe Biden; (2) this Court had refused to intervene, see Texas v. Pennsylvania, 141 S. Ct. 1230 (Dec. 11, 2020); and (3) the supreme courts in all six swing states had rejected Mr. Trump’s claims.14 On December 18, Mr. Trump was told by White House staff that his court challenges had failed. Ex. 78 (finding 171).15 The next day, Mr. Trump issued his first tweet summoning his supporters en masse to Washington on January 6, 2021: “Big protest in D.C. on January 6. Be there, will be wild.” Pet. App. at 93a, ¶ 202. He repeated this summons “at least twelve times.” Id. at 94a, ¶ 204.

Mr. Trump’s campaign to sway Republican officials to reverse his loss also had failed before his January 6 speech on the Ellipse. On December 26, 2020, Mr. Trump himself tweeted that “Mitch [McConnell] & the Republicans do NOTHING, just want to let it pass. NO FIGHT!” Id. ¶ 205. Mr. Trump’s efforts with state Republican governors, elected officials, and legislators, id. at 92a ¶ 198, had failed to produce anything. See Ex. 78 (findings 75, 121, 180, 196, 210). Mr. Trump’s own appointees at the Department of Justice had refused to support, and indeed contradicted, his false accusations of election fraud. Id. (finding 121).

Perhaps most important, before the speech on the Ellipse, Vice President Pence had told an angry Mr. Trump that morning that Pence would not stop the congressional certification of Joe Biden. Id. (finding 321). Mr. Trump’s response was to try to scare Vice President Pence with mob force. Mr. Trump primed the Ellipse crowd by warning that if Vice President Pence did not relent, “I’m going to be very disappointed in you. I will tell you right now. I’m not hearing good stories.” Pet. App. at 223a-226a, ¶ 135. Mr. Trump specifically instructed the crowd four times with respect to Joe Biden’s becoming President for “four more years. We’re just not going to let that happen.” Pet. App. at 227a-228a, ¶ 138.

After the speech, Mr. Trump continued his incitement, tweeting one hour and three minutes after being informed that the Capitol was under attack: “Mike Pence didn’t have the courage . . . .” Pet. App. at 98a, ¶ 215. This tweet by itself immediately caused more violence at the Capitol. Id. ¶ 216. Mr. Trump told his staff that perhaps Vice President Pence “deserved to be hanged.” Id. ¶ 218.

Ultimately, this case has a virtual confession. On December 3, 2022, Mr. Trump posted that his unfounded accusation of widespread election fraud “allows for the termination of all rules, regulations, and articles, even those found in the Constitution.” J.A. 1332 (emphasis added). He had said much the same in his January 6, 2021 speech on the Ellipse: “When you catch somebody in a fraud, you’re allowed to go by very different rules.” Pet. App. at 97a, ¶ 213. Mr. Trump deliberately tried to break the Constitution—to incite threatened and actual armed force to prevent the peaceful transfer of executive power mandated by the Executive Vesting Clause and the Twelfth and Twentieth Amendments. That constituted engaging in an insurrection against the Constitution.16

CONCLUSION

This Court should affirm.

January 29, 2024

Respectfully submitted, 

Matthew W. Edwards
1300 19th Street NW, Suite 300
Washington, DC 20036

Nancy A. Temple
Katten & Temple, LLP
209 S. LaSalle Street, Suite 950
Chicago, IL 60604

Richard D. Bernstein
Counsel of Record
1875 K Street NW, Suite 100
Washington, DC 20006
(301) 775-2064
rbernsteinlaw@gmail.com

Counsel for Amici Curiae

APPENDIX

TABLE OF APPENDICES

APPENDIX A — LIST OF AMICI CURIAE . . . . . . 1a

APPENDIX A — LIST OF AMICI CURIAE* [The views expressed are solely those of the individual amici and not any organization or employer. For each amicus, reference to prior and current position is solely for identification purposes.]

Charles Stevenson Abbot, Admiral, United States Navy (Retired), Deputy Commander, United States European Command, 1998-2000; Deputy Homeland Security Advisor, 2001-2003.

Donald Ayer, Deputy Attorney General, 1989-1990; Principal Deputy Solicitor General, 1986-88; United States Attorney, Eastern District of California, 1982-1986; Assistant United States Attorney, Northern District of California, 1977-1979.

Louis E. Caldera, United States Secretary of the Army, 1998-2001; Director of the White House Military Office, 2009; President, University of New Mexico, 2003- 2006; California State Assembly member, 1992-1997; United States Army officer, 1978-1983; currently Senior Lecturer of Business Administration, Harvard Business School.

George Conway, Board President, Society for the Rule of Law; argued Morrison v. National Australian Bank, Ltd., 561 U.S. 247 (2010).

Eric Edelman, Under Secretary of Defense for Policy, 2005-2009; Principal Deputy Assistant to the Vice President for National Security Affairs, 2001-2003.

Mickey Edwards, Representative of the Fifth Congressional District of Virginia, United States House of Representatives, 1977-1993; founding trustee of the Heritage Foundation and former national chairman of both the American Conservative Union and the Conservative Political Action Conference.

Stuart M. Gerson, Acting Attorney General, 1993; Assistant Attorney General for the Civil Division, 1989–1993; Assistant United States Attorney for the District of Columbia, 1972–1975.

John Giraudo, Attorney Advisor, Office of Legal Counsel, 1986-1988; Associate Deputy Secretary of Labor, December 1986-1988.

Peter Keisler, Acting Attorney General, 2007; Assistant Attorney General for the Civil Division, 2003- 2007; Principal Deputy Associate Attorney General and Acting Associate Attorney General, 2002-2003; Assistant and Associate Counsel to the President, The White House, 1986-1988.

J. Michael Luttig, Circuit Judge, United States Court of Appeals, 1991-2006; Assistant Attorney General, Office of Legal Counsel and Counselor to the Attorney General, 1990-1991; Assistant Counsel to the President, The White House, 1980-1981.

John M. Mitnick, General Counsel, United States Department of Homeland Security, 2018-2019; Associate Counsel to the President, The White House, 2005-2007; Deputy Counsel, Homeland Security Council, The White House, 2004-2005; Associate General Counsel for Science and Technology, United States Department of Homeland Security, 2003-2004; and Counsel to the Assistant Attorney General (Antitrust), United States Department of Justice, 2001-2002.

Jonathan C. Rose, Assistant Attorney General, Office of Legal Policy, 1981-1984; Deputy Assistant Attorney General, Antitrust Division, 1975-1977; Associate Deputy Attorney General and Director, Office of Justice Policy and Planning, 1974-1975; General Counsel, Council on International Economic Policy, 1972-1974; Special Assistant to the President, 1971-1972; White House Staff Assistant, 1969-1971.

Paul Rosenzweig, Deputy Assistant Secretary for Policy, Department of Homeland Security, 2005-2009; Office of Independent Counsel, 1998-1999; United States Department of Justice, 1986-1991; currently Professorial Lecturer in Law, The George Washington University Law School.

Nicholas Rostow, General Counsel and Senior Policy Adviser to the U.S. Permanent Representative to the United Nations, New York, 2001-2005; Special Assistant to the President for National Security Affairs and Legal Adviser to the National Security Council, 1987-1993; Special Assistant to the Legal Adviser, U.S. Department of State, 1985-1987; currently, Senior Research Scholar at Yale Law School.

Robert Shanks, Deputy Assistant Attorney General, Office of Legal Counsel, 1981-1984.

Christopher Shays, Representative of the Fourth Congressional District of Connecticut in the United States House of Representatives, 1987- 2009

Larry Thompson, Deputy Attorney General, 2001- 2003; Independent Counsel to the Department of Justice, 1995-1998; United States Attorney for the Northern District of Georgia, 1982-1986; currently, John A. Sibley Chair of Corporate and Business Law at University of Georgia Law School.

Stanley Twardy, United States Attorney for the District of Connecticut, 1985–1991.

Wendell Willkie, II, Associate Counsel to the President, 1984-1985; Acting Deputy Secretary, U.S. Department of Commerce, 1992-1993; General Counsel, U.S. Department of Commerce, 1989-1993; General Counsel, U.S. Department of Education, 1985-1988; currently, adjunct Professor of Law at New York University and adjunct fellow at the American Enterprise Institute.

Richard Bernstein, Appointed by the United States Supreme Court to argue in Carmell v. Texas, 529 U.S. 513, 515 (2000); Montgomery v. Louisiana, 136 S. Ct. 718, 725 (2016).
_______________

Notes:

1. Amici state that no counsel for any party authored this brief  in whole or in part, and that no entity, other than amici and their  counsel, made any monetary contribution toward the preparation  or submission of this brief.

2. Congress has the power to make “Exceptions” and  “Regulations” to this Court’s appellate jurisdiction. U.S. Const. art.  III, § 2, cl. 2. Congress has not done either concerning presidential  disqualifications. See 28 U.S.C. § 1257.

3. Available at https://www.washingtonpost.com/context/ ... 2b0a-f931-  4e0c-8bac-c82f13c2dd6f/ (last visited Jan. 15, 2024).

4. Available at https://www.theatlantic.com/ideas/  archive/2021/02/ trump-disqualification-president/617908/ (last  visited Jan. 13, 2024).

5. Available at https://papers.ssrn.com/sol3/ Delivery.cfm/  SSRN_ID4681108_code2677999.pdf?abstractid=4681108&mirid=1.

6. Art, I, § 3, cl. 4 likewise refers to “[t]he Vice President of  the United States.”

7. Available at https://www.lawfaremedia.org/article/wh ... ted-states.

8. Available at https://reason.com/volokh/2024/01/22/of ... n-context/.

9. Available at https://int.nyt.com/data/documenttools/ ... 8d66f/full. pdf.

10. 1Available at https://reason.com/volokh/2024/01/06/  insurrection-rebellion-and-january-6-rejoinder-to-stevecalabresi/?itm_source=parsely-api.

11. 11. Available at https://www.govinfo.gov/content/pkg/GPO ... sdoc21.pdf.

12. Chronology of Events Leading to Secession Crisis,  American Historical Association, https://www.historians.org/  teaching-and-learning/teaching-resources-for-historians/sixteenmonths-to-sumter/ chronology (“Chronology”) (last visited Jan. 12,  2024).

13. Available at https://www.learningforjustice.org/clas ... -secession (last visited Jan. 12, 2024).

14. See, e.g., Trump v. Biden, 951 N.W.2d 568, 571-72 (Wis. Dec.  14, 2020) (rejecting challenge concerning indefinitely confined voters  as “wholly without merit”); Trump v. Raffensperger, No. S21M0561  (Ga. Sup. Ct. Dec. 12, 2020) (rejecting writ of certiorari); Johnson  v. Sec’y of State, 951 N.W.2d 310 (Mich. Dec. 9, 2020) (“[T]he Court is not persuaded that it can or should grant the requested relief.”);  Ward v. Jackson, No. CV-20-0343, 2020 WL 8617817, at *2 (Ariz.  Dec. 8, 2020) (unanimously rejecting claims of “misconduct,” “illegal  votes,” and “fraud”); Law v. Whitmer, No. 82178, 477 P.3d 1124 (Nev.  Dec. 8, 2020) (unanimously affirming detailed trial court rejection of  election contest); In re Canvassing Observation, 241 A.3d 339, 350  (Pa. Nov. 17, 2020) (rejecting statutory claims because “[i]t would be  improper for this Court to judicially rewrite the statute by imposing  [observer] distance requirements where the legislature has, in the  exercise of its policy judgment, seen fit not to do so”); In re Canvass  of Absentee and Mail-In Ballots of Nov. 3, 2020 Gen. Election, No.  31 EAP 2020, 241 A.3d 1058 (Pa. Nov. 23, 2020) (rejecting statutory  claims seeking to disqualify signed mail-in or absentee ballots timely  received by November 3, 2020).

15. Ex. 78 contains findings from the Final Report of the House  Select Committee to Investigate the January 6th Attacks that the  trial court admitted into evidence.

16. Mr. Trump has no First Amendment defense. First, the  imminent violence and his intent satisfy Brandbenburg v. Ohio,  395 U.S. 444 (1969). Second, and independently, Brandenburg does  not limit the express constitutional provisions that govern who may  hold office, including the impeachment provisions and Section 3. See  P. Keisler & R. Bernstein, Freedom of Speech Doesn’t Mean What  Trump’s Lawyers Want It to Mean, Atlantic (Feb. 8, 2021), https://  www.theatlantic.com/ideas/archive/2021/02/first-amendment-nodefense-against-impeachment/617962/ (last visited Jan. 12, 2024).

[admin]

https://www.supremecourt.gov/DocketPDF/ ... Merits.pdf

No. 23-719
In the Supreme Court of the United States
_____________

DONALD J. TRUMP, PETITIONER
v.
NORMA ANDERSON, ET AL., RESPONDENTS
_____________

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF COLORADO
____________

REPLY BRIEF FOR THE PETITIONER
_____________

DAVID A. WARRINGTON
JONATHAN M. SHAW
GARY M. LAWKOWSKI
Dhillon Law Group Inc.
2121 Eisenhower Avenue
Suite 608
Alexandria, VA 22314
(703) 574-1206
dwarrington@dhillonlaw.com
jshaw@dhillonlaw.com
glawkowski@dhillonlaw.com

HARMEET DHILLON
Dhillon Law Group Inc.
177 Post Street, Suite 700
San Francisco, CA 94108
(415) 433-1700
harmeet@dhillonlaw.com

JONATHAN F. MITCHELL
Counsel of Record
Mitchell Law PLLC
111 Congress Avenue
Suite 400
Austin, Texas 78701
(512) 686-3940
jonathan@mitchell.law

SCOTT E. GESSLER
Gessler Blue LLC
7350 East Progress Place
Suite 100
Greenwood Village, CO 80111
(720) 839-6637
sgessler@gesslerblue.com

Counsel for the Petitioner

TABLE OF CONTENTS

Table of contents ................................................................... i
Table of authorities .............................................................. ii
I. The president is not an “officer of the United States” ........................................................... 2
II. President Trump did not “engage in insurrection” ............................................................ 14
III. Section 3 should be enforced only through Congress’s chosen methods of enforcement ........ 19
IV. Section 3 cannot be used to deny President Trump access to the ballot ..................................... 20
V. The Colorado Supreme Court violated the Electors Clause and the Colorado Election Code .......................................................................... 24
Conclusion ............................................................................ 25
TABLE OF AUTHORITIES
Brandenburg v. Ohio, 395 U.S. 444 (1969) ....................... 17
Chiafalo v. Washington, 140 S. Ct. 2316 (2020) ............... 23
City of Boerne v. Flores, 521 U.S. 507 (1997) .................... 6
City of Houston v. Hill, 482 U.S. 451 (1987) .................... 18
Franklin v. Massachusetts, 505 U.S. 788 (1992) ............. 14
Free Enterprise Fund v. Public Company Accounting Oversight Board, 561 U.S. 477 (2010) ....... 8
Hassan v. Colorado, 495 F. App’x 947 (10th Cir. 2012) .................................................................................. 21
Hess v. Indiana, 414 U.S. 105 (1973) ................................ 15
Maine Community Health Options v. United States, 140 S. Ct. 1308 (2020) ........................................... 7
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) ......... 7
Middlesex County Sewerage Authority v. National Sea Clammers Ass’n, 453 U.S. 1 (1981) ....................... 19
Million Youth March, Inc. v. Safir, 63 F. Supp. 2d 381 (S.D.N.Y. 1999) ......................................................... 16
Morrison v. Olson, 487 U.S. 654 (1988) .............................. 4
Murphy v. Smith, 583 U.S. 220 (2018) ................................ 7
National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012) ........................................... 5
Reynolds v. Sims, 377 U.S. 533 (1964) ................................ 2
Russello v. United States, 464 U.S. 16 (1983) .................... 5
Texas Democratic Party v. Benkiser, 459 F.3d 582 (5th Cir. 2006) ................................................................... 21
U.S. Bank National Ass’n ex rel. CWCapital Asset Management LLC v. Village at Lakeridge, LLC, 583 U.S. 387 (2018) .......................................................... 18
United States v. Arthrex, Inc., 141 S. Ct. 1970 (2021) ................................................................................... 4
United States v. Mouat, 124 U.S. 303 (1888) ................... 12
United States v. Smith, 124 U.S. 525 (1888) .................... 12
United States v. Texas, 599 U.S. 670 (2023) ..................... 16
Watts v. United States, 394 U.S. 705 (1969) ..................... 15
Statutes
2 U.S.C. § 25 ........................................................................... 5
2 U.S.C. § 287a ..................................................................... 10
3 U.S.C. § 19 ........................................................................... 3
18 U.S.C. § 2383 ................................................................... 20
1 Stat. 23 ............................................................................... 11
Colo. Rev. Stat. § 1-4-1203(2)(a) ......................................... 24
Md. Code, Election Law Code § LAW 8-505 ..................... 5
Constitutional Provisions
U.S. Const. amend. XVII ..................................................... 8
U.S. Const. amend. XXII ..................................................... 8
U.S. Const. art. I, § 2, cl. 2 ............................................. 8, 21
U.S. Const. art. I, § 2, cl. 5 ............................................. 3, 10
U.S. Const. art. I, § 3, cl. 2 ................................................. 21
U.S. Const. art. I, § 3, cl. 5 ................................................... 3
U.S. Const. art. I, § 6, cl. 2 ......................................... 8, 9, 13
U.S. Const. art. II, § 1, cl. 1 .................................................. 8
U.S. Const. art. II, § 1, cl. 6 .............................................. 3, 8
U.S. Const. art. II, § 1, cl. 7 .................................................. 8
U.S. Const. art. II, § 2, cl. 2 ............................................ 8, 10
U.S. Const. art. II, § 2, cl. 3 ................................................ 10
U.S. Const. art. II, § 3 ........................................................... 3
U.S. Const. art. II, § 3 ........................................................... 7
U.S. Const. art. II, § 4 ........................................................... 3
U.S. Const. art. VI, cl. 3 .................................................. 5, 11
Rules
8 Colo. Code Regs. § 1505-1-24 ............................................ 5
Other Authorities
Akhil Reed Amar & Vikram David Amar, Is the Presidential Succession Law Constitutional?, 48 Stan. L. Rev. 113 (1995) ............................................... 3
Black’s Law Dictionary (11th ed. 2019) ............................ 17
Regina Garcia Cano, US Government Pulls Some of Venezuela’s Sanctions Relief After Court Blocks Opposition Candidate, Associated Press (Jan. 29, 2024) .................................................................... 2
Karine Jean-Pierre, Press Secretary, Press Briefing at The White House (Jan. 29, 2024) ................ 2
Abraham Lincoln, Gettysburg Address (Nov. 19, 1863) .................................................................................... 1
Michael W. McConnell, Is Donald Trump Disqualified from the Presidency? A Response to Matthew J. Franck, Public Discourse (Jan. 18, 2024), http://bit.ly/49i9spw ............................................. 15

In the Supreme Court of the United States
_____________

No. 23-719

DONALD J. TRUMP, PETITIONER
v.
NORMA ANDERSON, ET AL., RESPONDENTS
_____________

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF COLORADO
_____________

REPLY BRIEF FOR THE PETITIONER
____________

President Donald J. Trump won the Iowa caucuses with the largest margin ever for a non-incumbent and the New Hampshire primary with the most votes of any candidate from either party. He is the presumptive Republican nominee and the leading candidate for President of the United States. In our system of “government of the people, by the people, [and] for the people,”1 the American people—not courts or election officials— should choose the next President of the United States. As this Court has explained: “The right to vote freely for the candidate of one’s choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government.” Reynolds v. Sims, 377 U.S. 533, 555 (1964).

Yet at a time when the United States is threatening sanctions against the socialist dictatorship in Venezuela for excluding the leading opposition candidate for president from the ballot,2 respondent Anderson asks this Court to impose that same anti-democratic measure at home. To date, at least 60 state and federal courts throughout the country have refused to remove President Trump from the ballot. The Colorado Supreme Court is the lone outlier, and this Court should reverse, for the reasons below, and protect the rights of the tens of millions of Americans who wish to vote for President Trump.

I. THE PRESIDENT IS NOT AN “OFFICER OF THE UNITED STATES”

Section 3 contains two reticulated lists of officers and offices, neither of which expressly mentions the president. Anderson would have us believe that the presidency is tacitly subsumed within generic catch-all phrases such as “officer of the United States” and “office … under the United States.” But she cannot overcome the overwhelming textual and structural evidence that “officer of the United States,” as used throughout the Constitution, refers only to appointed and not elected officials. And her arguments that the presidency qualifies as an “office … under the United States” also fail to persuade.

1. Anderson insists that every person who holds a “federal office” is an “officer of the United States.” See Anderson Br. 35 (“[T]he holder of a federal office is an “officer of the United States.”); id. at 36–37 (citing opinions of Attorney General Stanberry). That is wrong because the Speaker of the House and President Pro Tempore of the Senate are “officers” and hold “federal offices,” 3 yet they cannot be “officers of the United States” because they are not subject to impeachment4 and are not commissioned by the president.5 Unless Anderson is prepared to jettison Blount’s Case and subject the Speaker and President Pro Tempore to impeachment, she must concede that “officers of the United States” refers only to a subset of federal officeholders. And the only sensible construction of this phrase—in light of the Appointments Clause, the Commissions Clause, and the Impeachment Clause—is that “officers of the United States” refers to appointed federal officials and excludes elected individuals such as the Speaker, the President Pro Tempore, and the President and Vice President.6

Anderson reiterates her claim that section 3 establishes “symmetry in pairing barred offices with excluded individuals.” Anderson Br. 35. That is wrong because: (1) “Member of Congress” sweeps more broadly than “Senator or Representative in Congress”;7 (2) Section 3 prohibits disqualified individuals from serving in the Electoral College, without disqualifying former electors who engaged in insurrection;8 and (3) The canons of construction counsel against giving equivalent meanings to differently phrased provisions, especially when Congress could have used identical wording in the lists of offices and officers.9 Anderson does not deny any of this, but she tries to get around these admitted asymmetries by observing that electors and non-voting “members” of Congress are not constitutionally required to swear or affirm their support of the Constitution. See U.S. Const. art. VI cl. 3; Anderson Br. 36 & n.10. But nonvoting delegates and resident commissioners have always sworn such an oath10 and many presidential electors do,11 even though Article VI does not require it. And section 3 turns on whether the oath was previously taken, not on whether it was constitutionally compelled. So Anderson cannot establish the “symmetry” that she insists upon, and she has no basis for demanding correspondence between the “officers of the United States” and those who hold an “office … under the United States.”

Anderson tries to get traction from nonconstitutional sources that describe the president as an “officer” in the colloquial sense of the word. See Anderson Br. 37–39. But none of this purports to interpret the meaning of “officer of the United States” in the Constitution.12 And none of it can alter or affect the constitutional meaning of this phrase. President Johnson cannot make the President into a constitutional “officer of the United States” by issuing a proclamation describing himself that way, any more than Congress can change the meaning of the Fourteenth Amendment by enacting a statute that purports to define its substantive reach. See City of Boerne v. Flores, 521 U.S. 507, 519–20 (1997). And no proclamation, floor statement, or court opinion can overcome the fact that elected officials—including the President, Vice President, and members of Congress—cannot be characterized as “officers of the United States” because: (1) They are not commissioned by the President; (2) They are not “appointed” pursuant to Article II; and (3) They are excluded from the “civil officers of the United States” described in the Impeachment Clause.

Anderson eventually gets around to addressing the Commissions Clause, the Appointments Clause, and the Impeachment Clause. See Anderson Br. 40–43. She claims that the Commissions Clause “means only that the President alone has the power to grant commissions,” 13 but that stance cannot be squared with the constitutional language. The Commissions Clause does not say: “[T]he President alone may Commission the Officers of the United States.” It says that the president “shall Commission all the Officers of the United States.” U.S. Const. art. II, § 3 (emphasis added). “Shall” means must,14 and “all” means every one.15 And when the Constitution requires every “officer of the United States” to be commissioned by the president, the contrapositive follows as a matter of logic: Anyone who is not constitutionally required to be commissioned by the President cannot be an “officer of the United States.” See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 157, 162 (1803) (holding that the issuance of a presidential commission is a legal prerequisite to a valid appointment).

Anderson tries to get around the Appointments Clause by observing that it requires the president and Senate to appoint only those officers “whose Appointments are not herein otherwise provided for.” Anderson Br. 40 (quoting U.S. Const. art. II, § 2). Then she insists that this caveat refers to the “appointments” of the President, Vice President, Speaker of the House, and President Pro Tempore of the Senate—which would make each of them into an “officer of the United States.” Id. This is wrong for many reasons.

First. The president is not “appointed” by the Electoral College; he is elected.16 And only an appointed and not an elected official can be an “officer of the United States.” See Free Enterprise Fund v. Public Company Accounting Oversight Board, 561 U.S. 477, 497–98 (2010) (“The people do not vote for the ‘Officers of the United States.’ ” (quoting U.S. Const. art. II, § 2, cl. 2)). House and Senate members, for example, are elected rather than “appointed,”17 so they cannot qualify as “officers of the United States” under the “otherwise provided for” caveat.18 The Constitution consistently describes the President as elected and not appointed,19 and he cannot be regarded as an “officer of the United States” for the same reason.

Anderson’s stance also has implications for the Sinecure Clause, which says 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 … [if] the Emoluments whereof shall have been encreased during such time.” U.S. Const. art. I, § 6, cl. 2 (emphasis added). If this Court holds that presidents and vice presidents are “appointed,” then any Senator who became president or vice president before the expiration of his six-year term will have served in violation of the Constitution if the president or vice president’s salary had increased during that Senate term but before his “appointment” to office. It would also empower Congress to strategically disqualify sitting Senators from the presidency by voting to increase the president’s salary by a small amount.

Second. Even if the President could somehow be described as an “appointed” rather than elected official, he still cannot be characterized as an “officer of the United States” under the “otherwise provided for” caveat because: (1) He does not receive a presidential commission; and (2) He is listed separately from “civil officers of the United States” in the Impeachment Clause. The Speaker of the House and the President Pro Tempore of the Senate likewise cannot be squeezed into the “otherwise provided for” caveat—even if one considers them “appointed” officials—because they are not commissioned by the president and cannot be impeached.20

Third. Anderson is wrong to claim that our interpretation leaves the “otherwise provided for” caveat without any work to do. See Anderson Br. 40. The Constitution “otherwise provide[s]” for the appointments of inferior officers21 and recess appointees,22 and this caveat refers (at the very least) to the appointments of these “officers of the United States,” who need not receive a presidential appointment with the Senate’s advice and consent. It could also refer to the appointment of legislative “officers” such as the House parliamentarian, who is unilaterally appointed by the Speaker pursuant to 2 U.S.C. § 287a and U.S. Const. art. I, § 2, cl. 5, although these officials cannot qualify as “officers of the United States” unless they are subject to impeachment and required to be commissioned by the President.

Anderson claims that the Impeachment Clause lists the president and vice president separately from “all civil Officers of the United States” to avoid confusion that might arise from the president’s role as both a “civil” and “military” officer. See Anderson Br. 41. But this does not explain why the Impeachment Clause omits the word “other” before “civil Officers of the United States,” and it cannot explain the separate enumeration of the vice president, who has no military responsibilities. The only plausible inference is the one drawn by Justice Story: That the president and vice president are listed separately from “all civil Officers of the United States” because they are not “officers of the United States.” Pet. Br. 21–22. And if Anderson wants to argue that the Impeachment Clause lists the president separately to “avoid . . . uncertainty” while simultaneously insisting that the president falls within the “civil Officers of the United States,” then she must explain why section 3 fails to explicitly mention the President as a covered officer given the many difficulties with characterizing the president as an “officer of the United States.”

Anderson observes that President Trump’s interpretation of “officers of the United States” will exempt the vice president from the oath requirement of Article VI. See Anderson Br. 41; U.S. Const. art. VI, cl. 3. But the first Congress enacted legislation requiring the vice president to swear the same oath as everyone else listed in Article VI. See 1 Stat. 23. And a statutory oath requirement can reach beyond those mentioned in Article VI. See 5 U.S.C. § 3331. So the absence of an explicit constitutional oath requirement for the vice president is no reason for concern, and is certainly no reason to force the president into the category of “officers of the United States.”

It is also hard to accept Anderson’s construction of “officer of the United States” when section 3 covers only those who swear an oath to “support” the Constitution. Anderson says that the presidential oath to “preserve, protect, and defend” is just another way of promising to “support” the Constitution. See Anderson Br. 43–44. But then she needs to explain why the drafters of section 3 would create this ambiguity by using the word “support”— and excluding any reference to the presidential oath—if the president were understood to be included as a covered officer.

Anderson is also wrong to say that President Trump’s interpretation of section 3 “def[ies] common sense.” See Anderson Br. 44–45. It was entirely sensible for section 3 to exclude the president as a covered “officer” because: (1) No ex-president supported the confederacy except John Tyler, who died in 1862;23 (2) Each of our 46 presidents, except George Washington and Donald Trump, would be covered by section 3 because they held a previous job listed in the amendment; and (3) Former presidents rarely seek election or appointment to office, and the overwhelming majority retire from public service. Indeed, Anderson’s construction of section 3 will allow the courts to eject a sitting president from office, apart from the impeachment process, if a court independently determines that he “engaged in insurrection” against the Constitution, even if Congress refuses to impeach and convict on that ground.

Finally, Anderson does not even mention United States v. Smith, 124 U.S. 525 (1888), or United States v. Mouat, 124 U.S. 303 (1888), which make clear that the president is not an “officer of the United States”—either under the Appointments Clause or under any federal statute using this phrase.24 A ruling that adopts Anderson’s construction of “officers of the United States” will overrule the interpretations adopted in Smith and Mouat.

2. Anderson describes the presidency as an “office” (which it undoubtedly is)25 and insists that “office … under the United States” encompasses every federal “office.” See Anderson Br. 34 (“ ‘[U]nder the United States’ … distinguish[es] federal offices from offices ‘under any State.’ ”). Anderson’s construction of “office … under the United States” is wrong. The Speaker of the House and President Pro Tempore of the Senate are “officers”26 who hold federal “offices.” But neither holds an “office … under the United States” because the Incompatibility Clause bars House and Senate members from “holding” such an office. See U.S. Const. art. I, § 6, cl. 2 (“[N]o Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.”).

Anderson says it is “clear” that “office … under the United States” includes the presidency,27 but the evidence is far from “clear.” See Amicus Br. of Professor Kurt T. Lash. The most troublesome evidence for Anderson is that section 3 does not mention the presidency or the vice presidency as covered “offices”—even though it specifically enumerates senators, representatives, and electors for president and vice president. And a draft of section 3 introduced by Representative Samuel McKee explicitly listed the presidency and vice presidency as “offices” closed to confederate rebels,28 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.

The Colorado Supreme Court tried to explain this by observing that senators, representatives, and electors do not hold “offices … under the United States” and therefore needed to be separately enumerated. Pet. App. 63a– 64a. But it was at least debatable whether that phrase would encompass the presidency,29 especially when the cognate phrase “officers of the United States” excludes the president every time it appears in the Constitution. Pet. Br. 20–33. So one would expect the text of section 3 to specifically mention the presidency in the list of enumerated offices rather than leave this matter to a contestable inference. Cf. Franklin v. Massachusetts, 505 U.S. 788, 800–01 (1992) (clear statement needed for statutory language to encompass the president).

II. PRESIDENT TRUMP DID NOT “ENGAGE IN INSURRECTION”

Anderson claims that the events at the U.S. Capitol were an “insurrection” and that President Trump “engaged” in it by supposedly “inciting” the crowd. See Anderson Br. 15–33. This is wrong on every count. There was no “insurrection,” President Trump did not “incite” anything, and President Trump did not “engage in” anything that constitutes “insurrection.”

First. The events of January 6 were not an “insurrection,” as they did not involve an organized attempt to overthrow or resist the U.S. Government. See Amicus Br. of Indiana et al. 8–17; Michael W. McConnell, Is Donald Trump Disqualified from the Presidency? A Response to Matthew J. Franck, Public Discourse (Jan. 18, 2024), http://bit.ly/49i9spw (events of January 6 were not “insurrection” because they “lasted only about three hours, most of the participants acted on the spur of the moment, few [if any] … carried firearms, and their objectives were narrow: to pressure Congress and the vice president to correct what they … thought were fraudulent election returns.”).

Second. President Trump did not “incite” violence by telling his supporters to “fight,” “fight like hell,” march to the Capitol, and “take back our country.” Anderson Br. 32 (claiming that these statements “explicitly” incited violence). Even the district court acknowledged that language of this sort is “prevalen[t] … in the political arena,” 30 and President Trump’s statements are far less provocative than language that falls short of “incitement” under Brandenburg. See Hess v. Indiana, 414 U.S. 105, 107 (1973) (“We’ll take the f—ing street again”); Watts v. United States, 394 U.S. 705, 706 (1969) (“[T]he first man I want to get in my sights is L.B.J.”); Million Youth March, Inc. v. Safir, 63 F. Supp. 2d 381, 391 (S.D.N.Y. 1999) (“hateful, racist, and offensive” remarks and open “call[s] for violence” did not constitute incitement). Anderson touts President Trump’s 2:24 P.M. tweet, but that tweet did not call for any action whatsoever. It was also sent over an hour after disorder broke out at the Capitol and could not have “incited” events that were long underway.31

So the district court had to rely on Professor Simi’s opinion that President Trump communicates in “coded language with his violent supporters”32 to push President Trump’s speech into the “incitement” category. Anderson now tries to downplay the role of Simi’s testimony,33 but she has nothing apart from Simi that can convert President Trump’s statements—which would be constitutionally protected speech if uttered by any person other than President Trump—into criminally proscribable “incitement.”

Third. Even if there had been “incitement” and “insurrection,” President Trump still did not “engage in” it. “Incitement” (which did not occur here) is not “engagement” in “insurrection,” because a person who “incites” seeks only to bring about “imminent lawless action.” Brandenburg v. Ohio, 395 U.S. 444, 447 (1969). Not all lawlessness rises to the level of “insurrection.” And the district court found only that President Trump’s speeches and tweets “incited imminent lawless violence”34—not that they incited anything that might be characterized as “insurrection.”

Even “incitement” of insurrection would not be enough to constitute “engagement in” insurrection, because incitement turns on whether a person’s speech or conduct is “directed” toward and “likely to … produce” the relevant act of lawlessness. See Brandenburg, 395 U.S. at 447. “Engagement,” by contrast, requires active participation in insurrection. See Black’s Law Dictionary (11th ed. 2019) (defining “engage” as “employ or involve oneself; to take part in; to embark on.”).

President Trump is not arguing that “engagement in insurrection” requires an individual to “personally commit[] violent acts.” See Anderson Br. 29. President Trump is arguing that none of his actions—including his speeches and social-media posts—can qualify as “engagement in insurrection.” None of the authorities cited by Anderson that include “incitement” as “engagement in insurrection” involved speech or conduct of the sort that President Trump engaged in. See Anderson Br. 29– 31.

Finally, the Court should not apply the clearly erroneous standard to constitutional facts or mixed questions of fact and law, such as whether President Trump “incited” violence or “engaged in” insurrection (which he did not as is clear from his speech and social-media posts). See U.S. Bank National Ass’n ex rel. CWCapital Asset Management LLC v. Village at Lakeridge, LLC, 583 U.S. 387, 396 n.4 (2018) (citing authorities). Clearlyerroneous review is appropriate for “basic” or “historical” facts—such as who said what, or when and where it was said—but the blanket deference demanded by Anderson is unwarranted. See id. at 394; Anderson Br. 18– 19. The district court’s findings involving President Trump’s mens rea should also be reviewed independently, as no witness claimed to have firsthand knowledge of President Trump’s intent or thought process. The trial court is in no better position than this Court to evaluate President Trump’s state of mind based on the evidence presented. See City of Houston v. Hill, 482 U.S. 451, 458 n.6 (1987) (“An independent review of the record is appropriate where the activity in question is arguably protected by the Constitution.”).

III. SECTION 3 SHOULD BE ENFORCED ONLY THROUGH CONGRESS’S CHOSEN METHODS OF ENFORCEMENT

President Trump is not arguing that section 3 is “non-self-executing.” His claim is that section 3 may be enforced only through the congressionally enacted methods of enforcement.

Anderson does not deny that congressional implementing legislation can implicitly preclude other means of enforcing section 3, see Middlesex County Sewerage Authority v. National Sea Clammers Ass’n, 453 U.S. 1, 20 (1981), yet she presents no argument for why the Sea Clammers principle should not apply here. Instead, Anderson attacks the rationale of Griffin’s Case and the Colorado Republican Party’s claim that section 3 is “not self-executing.” See Anderson Br. 52–56. But regardless of what litigants and commentators now think about Griffin’s Case, the fact remains that it was the only judicial decision in place when Congress enacted (and later modified) its statutory regime to enforce section 3. Congress legislated on the understanding that its implementing legislation would be exclusive, so rejecting Griffin’s Case now would not only undermine stare decisis principles but also repudiate the premise of the statutory enforcement regime that Congress has enacted.

Anderson notes that the Insurrection Act—the only surviving piece of congressional enforcement legislation— was enacted before the Fourteenth Amendment and sweeps more broadly than the constitutional disqualification. See Anderson Br. 53 n.19. But none of that undermines its exclusivity under Sea Clammers. When Congress repealed the quo warranto provisions that it enacted in response to Griffin’s Case, it knew that the Insurrection Act was the only means of enforcement left, and that the Insurrection Act would be the exclusive means of enforcing section 3 given the precedent of Griffin’s Case. It defies belief that Congress, having abolished the quo warranto regime while leaving criminal prosecution under 18 U.S.C. § 2383 as the sole means of removing insurrectionist office-holders, would have wanted to allow state courts to enforce section 3 on their own by blocking candidates from the ballot.

Finally, Anderson’s “self-execution” arguments and interpretation of section 3 would mean that President Trump could not constitutionally serve as president after January 6, 2021. This will open the door for litigants to challenge the validity of every executive action that President Trump and his administration took during his last two weeks in office.

IV. SECTION 3 CANNOT BE USED TO DENY PRESIDENT TRUMP ACCESS TO THE BALLOT

Anderson concedes that the states are constitutionally forbidden to add to or alter the Constitution’s qualifications to the presidency. See Anderson Br. 49 (“[A] state has no power to add qualifications for the office of the Presidency”); Griswold Br. 28 (“It is beyond dispute that states cannot add or modify qualifications for the presidency.”). And she acknowledges that Congress may “remove” a section 3 disability “at any time and for any reason.” Anderson Br. 2. Yet Anderson argues that the Constitution allows Colorado to exclude President Trump from the ballot if this Court concludes that he is “presently” disqualified under section 3—even though Congress can lift that disability before the inauguration. See Anderson Br. 45–52.
Anderson’s argument is foreclosed by U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995), as she is demanding that President Trump qualify under section 3 not only on the dates that he holds office, but also on the dates of the primary and general elections and on any date that a court might rule on his ballot eligibility. Anderson’s stance is indistinguishable from laws requiring congressional candidates to “inhabit” their state prior to Election Day, when the Constitution requires only that they inhabit the state “when elected.”35 Pet. Br. 44–45 (citing Texas Democratic Party v. Benkiser, 459 F.3d 582, 589–90 (5th Cir. 2006), and other authorities); Amicus Br. of Senator Daines 5–20. Yet Anderson ignores the cases that disapprove attempts to alter the timing of Article I’s congressional-residency requirements, and she makes no attempt to reconcile her argument with the holdings of those cases.

Anderson tries to analogize the Colorado Supreme Court’s ruling to Hassan v. Colorado, 495 F. App’x 947 (10th Cir. 2012), and rulings that uphold ballot exclusions of naturalized citizens, 27-year-olds, and candidates who are categorically disqualified from the presidency. See Anderson Br. 47–48. But excluding those types of candidates from the ballot does not in any way alter the Constitution’s eligibility rules. None of these rulings allow states to deny ballot access to candidates whose qualifications are contingent upon future action (or inaction), and a state cannot use its ballot-access rules to accelerate the deadline for satisfying a constitutional qualification for office.36

Anderson is also wrong to say that President Trump is “presently” disqualified from holding office. See Anderson Br. 48 (“Section 3 imposes a present disqualification”). Section 3 is a prohibition only on holding office, and Congress can waive this prohibition between now and the end of the next presidential term. So no court or litigant can declare that President Trump is “presently” disqualified from holding office without assuming or predicting that Congress will refuse to lift any section 3 disability that might apply. Anderson may believe or hope that Congress will not waive section 3 between now and January 20, 2029. But neither the Colorado Supreme Court nor this Court can declare a candidate ineligible for the presidency now based on a prediction of what Congress may or may not do in the future. Nor can a court deprive a presidential candidate of the opportunity to petition Congress for a waiver—especially when Congress is mostly likely to grant a waiver after the candidate has been elected, as its members will face political pressures to respect the will of the voters and allow the president-elect to take office. Anderson’s position would also allow a state to block a 34-year-old from the presidential ballot, even if that candidate will turn 35 before Inauguration Day, on the ground that he is “presently disqualified” from holding office. See Anderson Br. 50.

Anderson and Griswold suggest that states can bar President Trump from the ballot to protect voters from potentially “wasting” their ballots on someone who may eventually be found ineligible for office. See Anderson Br. 47, 51; Griswold Br. 26. But it is for the individual voters to decide for themselves how to weigh this possibility when casting ballots, and a state cannot invoke this paternalism to prevent voters from supporting a candidate who may be eligible by Inauguration Day.

Finally, Anderson invokes the Electors Clause and Chiafalo v. Washington, 140 S. Ct. 2316 (2020),37 but neither does anything to support the Colorado Supreme Court’s ruling. Anderson acknowledges that states are constitutionally forbidden to alter qualifications for the presidency,38 so a state cannot bar its electors from voting for candidates who fail to satisfy an extraneous state-imposed qualification. Chiafalo is no help because there is no “long settled and established practice” of requiring electors to comply with state-imposed eligibility criteria. See Chiafalo, 140 S. Ct. at 2326. And the Electors Clause empowers only a state legislature—not its judiciary— to direct the manner of choosing presidential electors. There is no legislative enactment that requires or even allows Colorado’s Secretary of State to exclude supposed “insurrectionists” from the presidential primary ballot, and Anderson has yet to identify such a statute. See Anderson Br. 58–60; Pet. Br. 46–50.

V. THE COLORADO SUPREME COURT VIOLATED THE ELECTORS CLAUSE AND THE COLORADO ELECTION CODE

The Colorado Supreme Court adopted an atextual interpretation of Colo. Rev. Stat. § 1-4-1203(2)(a), which requires only that a political party that participates in Colorado’s presidential primary election have at least one “qualified candidate.” Anderson makes no attempt to reconcile the language of this statute with the Colorado Supreme Court’s interpretation of it. This defeats any attempt to invoke Article II’s Electors Clause or Chiafalo, because “the legislature” has not directed President Trump’s exclusion from the ballot. See Anderson Br. 46.

CONCLUSION

The judgment of the Colorado Supreme Court should be reversed.

Respectfully submitted.
 
DAVID A. WARRINGTON
JONATHAN M. SHAW
GARY M. LAWKOWSKI
Dhillon Law Group Inc.
2121 Eisenhower Avenue
Suite 608
Alexandria, VA 22314
(703) 574-1206
dwarrington@dhillonlaw.com
jshaw@dhillonlaw.com
glawkowski@dhillonlaw.com

HARMEET DHILLON
Dhillon Law Group Inc.
177 Post Street, Suite 700
San Francisco, CA 94108
(415) 433-1700
harmeet@dhillonlaw.com

JONATHAN F. MITCHELL
Counsel of Record
Mitchell Law PLLC
111 Congress Avenue
Suite 400
Austin, Texas 78701
(512) 686-3940
jonathan@mitchell.law

SCOTT E. GESSLER
Gessler Blue LLC
7350 East Progress Place
Suite 100
Greenwood Village, CO 80111
(720) 839-6637
sgessler@gesslerblue.com

February 5, 2024

_______________

Notes:

1. Abraham Lincoln, Gettysburg Address (Nov. 19, 1863), (transcript  available from the Library of Congress,  http://bit.ly/3SoPVgm).

2. Regina Garcia Cano, US Government Pulls Some of Venezuela’s  Sanctions Relief After Court Blocks Opposition Candidate,  Associated Press (Jan. 29, 2024), http://bit.ly/3uqodaU; Karine  Jean-Pierre, Press Secretary, Press Briefing at The White  House (Jan. 29, 2024), http://bit.ly/3UrHi7j.

3. U.S. Const. art. I, § 2, cl. 5 (“The House of Representatives shall  chuse their Speaker and other Officers”); U.S. Const. art. I, § 3,  cl. 5 (“The Senate shall chuse their other Officers”). If the  Speaker and President Pro Tempore are not “officers” within  the meaning of the Constitution, then the Presidential Succession  Law is unconstitutional. See 3 U.S.C. § 19; U.S. Const. art.  II, § 1, cl. 6 (allowing only “officers” to act as president when the  presidency and vice presidency are vacant); Akhil Reed Amar &  Vikram David Amar, Is the Presidential Succession Law Constitutional?,  48 Stan. L. Rev. 113 (1995).
 
4. Pet. Br. 24 & n.27 (discussing Blount’s Case); U.S. Const. art.  II, § 4 (subjecting “all civil Officers of the United States” to impeachment).
 
5. U.S. Const. art. II, § 3 (“[The President] … shall Commission all  the Officers of the United States.”).

6. Anderson falsely claims that our interpretation limits “officers  of the United States” to “presidential appointees.” Anderson Br.  39, 41. “Officers of the United States” include inferior officers  appointed by courts or heads of department. See Morrison v.  Olson, 487 U.S. 654, 670–71 (1988).  Anderson also quotes Chief Justice Marshall and suggests  that every federal employee is an “officer of the United States,”  but the Court has emphatically rejected that stance. Compare  Anderson Br. 35 (“ ‘If employed on the part of the United States,  he is an officer of the United States.’ ” (quoting United States v.  Maurice, 26 F. Cas. 1211, 1214 (C.C.D. Va. 1823)), with United  States v. Arthrex, Inc., 141 S. Ct. 1970, 1980 (2021) (distinguishing  “officers” from “ ‘lesser functionaries’ such as employees or  contractors”).
 
7. Pet. Br. 29 & nn.39–40.
 
8. Pet. Br. 30.

9. Pet. Br. 30–31 (citing National Federation of Independent  Business v. Sebelius, 567 U.S. 519, 544 (2012); Russello v. United  States, 464 U.S. 16, 23 (1983)).
 
10. 2 U.S.C. § 25.
 
11. 8 Colo. Code Regs. § 1505-1-24 (requiring presidential electors  to swear or affirm that they will support the Constitution of the  United States); Md. Code, Election Law Code § LAW 8-505  (same).

12. None of the judicial opinions cited by Anderson consider or address  whether the president is an “officer of the United States”  as that phrase is used in the Constitution. See Anderson Br. 38–  39.
 
13. Anderson Br. 42.

14. See Maine Community Health Options v. United States, 140 S.  Ct. 1308, 1320 (2020) (“Unlike the word ‘may,’ which implies discretion,  the word ‘shall’ usually connotes a requirement.”);  Murphy v. Smith, 583 U.S. 220, 223 (2018) (“[T]he word ‘shall’  usually creates a mandate, not a liberty”).
 
15. All, Merriam-Webster, https://bit.ly/42uzBPy (“every member  or individual component of”); All, The Britannica Dictionary,  https://bit.ly/492JiY0 (“every member or part of”).

16. U.S. Const. art. II, § 1, cl. 1 (“The … President … shall …, together  with the Vice President, … be elected, as follows” (emphasis  added)); U.S. Const. art. II, § 1, cl. 6 (“until … a President  shall be elected.” (emphasis added)); U.S. Const. art. II, § 1,  cl. 7 (prohibiting changes to the president’s salary “during the  Period for which he shall have been elected” (emphasis added));  U.S. Const. amend. XXII (“No person shall be elected to the office  of the President more than twice” (emphasis added)).
 
17. U.S. Const. art. I, § 2, cl. 2 (“No Person shall be a Representative  … who shall not, when elected, be an Inhabitant of that  State” (emphasis added)); U.S. Const. art. I, § 6, cl. 2 (“No Senator  or Representative shall, during the Time for which he was  elected …” (emphasis added)); U.S. Const. amend. XVII (“The  Senate of the United States shall be composed of two Senators  from each State, elected by the people” (emphasis added)).
 
18. Pet. Br. 24 n.27 (describing Blount’s Case, which established  that Senators and Representatives are not subject to impeachment  as “civil officers of the United States.”).
 
19. See supra note 16.

20. See supra note 18.

21. U.S. Const. art. II, § 2, cl. 2 (“[B]ut the Congress may by Law  vest the Appointment of such inferior Officers, as they think  proper, in the President alone, in the Courts of Law, or in the  Heads of Departments.”).
 
22. U.S. Const. art. II, § 2, cl. 3 (“The President shall have Power to  fill up all Vacancies that may happen during the Recess of the  Senate, by granting Commissions which shall expire at the End  of their next Session.”).

23. Pet. Br. 32 & n.42.

24. In a footnote, Anderson falsely suggests that these cases involve  only the president’s authority to appoint “other officers.” Anderson  Br. 40 n.13.
 
25. Pet. Br. 25–26 & nn.34–35.
 
26. See note 3 and accompanying text.
 
27. Anderson Br. 34.

28. Cong. Globe, 39th Cong., 1st Sess., at 919 (1866).
 
29. Amicus Br. of Professor Kurt T. Lash.

30. Pet. App. 276a (¶ 297).

31. Similar deficiencies afflict Anderson’s reliance on President  Trump’s statements before January 6, 2021, which are core political  speech. See Anderson Br. 20–21. And Anderson’s attempts  to invoke President Trump’s post-speech actions and alleged  failures to deploy federal resources to stop the disorder  fare even worse. See id. at 23–24, 26–27. Those are judicially unreviewable  exercises of the President’s law-enforcement discretion,  see United States v. Texas, 599 U.S. 670, 678 (2023), and  they could not have “incited” already-past events.
 
32. Pet. App. 228a (¶ 142).  

33. Anderson Br. 28 (“Simi’s testimony was … just one facet of the  overwhelming and largely undisputed evidence presented at trial”).

34. Pet. App. 229a (¶ 144) (“Trump’s Ellipse speech incited imminent  lawless violence.”); id. at 235a (¶ 172) (“Trump’s 2:24 P.M.  tweet further encouraged imminent lawless violence”); id. at  269a (¶ 282) (falsely claiming that Anderson could prove that  President Trump “engaged in insurrection through incitement”  if “his speech was intended to produce imminent lawless action  and was likely to do so.”).

35. U.S. Const. art. I, § 2, cl. 2 (“No Person shall be a Representative  … who shall not, when elected, be an Inhabitant of that  State in which he shall be chosen” (emphasis added)); U.S.  Const. art. I, § 3, cl. 2 (same rule for senators).

36. Griswold falsely claims that our argument would forbid states to  exclude foreign-born citizens from the presidential ballot on the  off chance that the Constitution might be amended to allow  them to serve before Inauguration Day. See Griswold Br. 30  n.10. Whether a state law alters the qualifications established by  the Constitution obviously must be assessed under the Constitution  as it currently exists.

37. Anderson Br. 46–47.
 
38. Anderson Br. 49.

[admin]

https://www.supremecourt.gov/DocketPDF/ ... derson.pdf

No. 23-719

IN THE
Supreme Court of the United States

DONALD J. TRUMP,
Petitioner,
v.
NORMA ANDERSON, ET AL.,
Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF COLORADO

AMICUS CURIAE BRIEF OF AKHIL REED AMAR AND VIKRAM DAVID AMAR IN SUPPORT OF NEITHER PARTY

Vikram David Amar*
University of California at Davis School of Law**
King Hall, 400 Mrak Hall Drive
Davis, CA 95616
vdamar@ucdavis.edu
(925) 858-8855
Counsel for Amici Curiae
*Counsel of Record
**University affiliation provided for identification purposes only

Dated: January 18, 2024

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...................................... ii
INTEREST OF AMICI CURIAE ................................ 1
SUMMARY OF ARGUMENT ..................................... 1
ARGUMENT ............................................................... 6
I. The Story and Significance of the First Insurrection of the 1860s ............. 6
A. The Story ..................................... 6
B. The Significance ........................ 14
II. Twenty Questions ................................ 17
CONCLUSION .......................................................... 31
TABLE OF AUTHORITIES
CASES
Brandenburg v. Ohio, 395 U.S. 444 (1969) ............................................... 24
Hassan v. Colorado, 495 F. App’x 487 (10th Cir. 2012) ................... 24, 27
In re Griffin, 11 F. Cas. 7 (C.C.D. Va. 1869) .............................. 14
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) ................................. 19
McDonald v. City of Chicago, 561 U.S. 742 (2010) ............................................... 31
Missouri v. Jenkins, 515 U.S. 70 (1995) ................................................. 22
Moore v. Harper, 600 U.S. 1 (2023) ................................... 5, 20, 27, 28
Powell v. McCormack, 395 U.S. 486 (1969) ............................................... 31
U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995) ............................................... 20
United States v. Davis, 7 F. Cas. 63 (C.C.D. Va. 1869) .............................. 22
United States v. Hudson & Goodwin, 11 U.S. (7 Cranch) 32 (1812) ........................... 22, 26
CONSTITUTIONAL AND STATUTORY AUTHORITIES:
Act of July 2, 1862, ch. 128, 12 Stat. 502 ........... 11, 18
Act of Mar. 2, 1867, ch. 153, 14 Stat. 428, 429 ........ 14
Act of June 25, 1868, ch. 70, 15 Stat. 73, 74 ............ 14
Act of July 11, 1868, ch. 139, 15 Stat. 85 ................. 11
Act of Feb. 15, 1871, ch. 53, 16 Stat. 412 ................. 11
Joint Resolution of Feb. 8, 1865, 13 Stat. 567 ......... 28
U.S. CONST. Art. II, § 3.............................................. 18
U.S. CONST. Amend. IV ............................................... 2
U.S. CONST. Amend. XIV ....... 1, 2, 3, 4, 5, 6, 9, 11, 12, 13, 14, 15, 16, 17, 18, 20, 21, 22, 23, 24, 26, 28, 29, 30, 31
OTHER AUTHORITIES:
1 ULYSSES S. GRANT, PERSONAL MEMOIRS OF U.S. GRANT (1885) ............................................. 8
2 ULYSSES S. GRANT, PERSONAL MEMOIRS OF U.S. GRANT (1885) ....................................... 9, 13
Akhil Reed Amar, Presidents, Vice Presidents, and Death: Closing the Constitution’s Succession Gap, 48 ARK. L. REV. 215 (1995) .............................................................. 28
AKHIL REED AMAR, AMERICA’S CONSTITUTION: A BIOGRAPHY (2005) ........................................ 28
AKHIL REED AMAR, AMERICA’S UNWRITTEN CONSTITUTION (2012) ...................................... 19
AKHIL REED AMAR, THE WORDS THAT MADE US: AMERICA’S CONSTITUTIONAL CONVERSATION, 1760–1840 (2021) ................. 25
AKHIL REED AMAR, BORN EQUAL: AMERICA’S CONSTITUTIONAL CONVERSATION, 1840–1920 (forthcoming 2025) ................................... 6
Brief of Amici Curiae Professors Akhil Reed Amar, Vikram David Amar and Steven Gow Calabresi in Support of Respondents, Moore v. Harper, 600 U.S. 1 (2023) (No. 21-1271) .................................... 29
William Baude & Michael Stokes Paulsen, The Sweep and Force of Section Three, 172 U. PA. L. REV. (forthcoming 2024) ..... 22-23
BURLINGTON FREE PRESS, Feb. 1, 1861 ...................... 7
BURLINGTON FREE PRESS, February 15, 1861 ............ 8
RON CHERNOW, GRANT (2017) ..................................... 9
CONG. GLOBE, 36th Cong., 2d Sess. (1861) ........... 7, 10
CONG. GLOBE, 37th Cong., 1st Sess. (1861) ........ 10, 16
CONG. GLOBE, 37th Cong., 2d Sess. (1862) ............... 12
CONG. GLOBE, 39th Cong., 1st Sess. (1866) ........ 12, 17
CONG. GLOBE, 40th Cong., 2d Sess. (1868) ..... 4, 12, 21
CONG. GLOBE, 41st Cong., 2d Sess. (1870) ......... 13, 14
C. Ellen Connally, The Use of the Fourteenth Amendment by Salmon P. Chase in the Trial of Jefferson Davis, 42 AKRON L. REV. 1165 (2009) ............................................. 22
Brief for Senator Steve Daines et al., Trump v. Anderson, Nos. 23-696 & 23-719 (2024) ........ 24
DAILY INTELLIGENCER, Feb. 7, 1861 ........................... 7
HAROLD M. HYMAN, ERA OF THE OATH: NORTHERN LOYALTY TESTS DURING THE CIVIL WAR AND RECONSTRUCTION (1954) ....... 11
Gerard N. Magliocca, Amnesty and Section Three of the Fourteenth Amendment, 36 CONST. COMMENT 87 (2021)............................ 22
Gerard Magliocca, Opinion, What the Supreme Court Should Not Do in Trump’s Disqualification Case, N.Y. TIMES (Jan. 5, 2024) ............................................................ 30
CYNTHIA NICOLETTI, SECESSION ON TRIAL: THE TREASON PROSECUTION OF JEFFERSON DAVIS (2017) .................................................... 22
JOHN B. NIVEN, SALMON P. CHASE: A BIOGRAPHY (1995) ........................................... 23
Official Orders, DAILY MORNING CHRON., Sept. 17, 1869 ........................................................... 13
PHILA. INQUIRER, Oct. 5, 1869 ................................... 13
JEFFREY S. SUTTON, 51 IMPERFECT SOLUTIONS: STATES AND THE MAKING OF AMERICAN CONSTITUTIONAL LAW (2018) .......................... 30
The Great Conspiracy, What Are Its Plans and Purposes?, N.Y. TIMES, Feb. 5, 1861 ................ 7
The Great Robbery, BENNINGTON BANNER, Feb. 21, 1861 ..................................................... 7
The Indictment of Floyd, EVENING POST, Jan. 26, 1861 ............................................................. 7
The Secretary of War, N.Y. TIMES, Dec. 29, 1860 ................................................................... 7
Transcript of Oral Argument, SEC v. Jarkesy, No. 22-859 (Nov. 29, 2023) (Kagan, J.) .......... 19
Ted Widmer, Opinion, The Capitol Takeover That Wasn’t, N.Y. TIMES (Jan. 8, 2021) ......... 11

INTEREST OF AMICI CURIAE1

Akhil Reed Amar and Vikram David Amar are constitutional scholars and historians who seek to aid this Court in its efforts to practice principled constitutional decision-making and faithful originalism.

SUMMARY OF ARGUMENT

At the heart of this case—perhaps one of the most important cases in American history—is the Oath, specifically the Oath of constitutional fidelity highlighted by Section Three of the Fourteenth Amendment. Each of Your Honors has taken such an Oath, publicly and solemnly. It is an Oath to follow the Constitution as the supreme law of the land.

It is not an Oath to vindicate some vague and free-floating theory of “democracy.” In any event, “democracy” is on both sides of this case. For some, excluding an immensely popular political figure from the ballot is profoundly undemocratic. But, for others, what is truly undemocratic is empowering a uniquely dangerous demagogue who has already disobeyed his solemn Oath and is a genuine threat to recidivate and perhaps end the constitutional republic that now exists. The tension between these two clashing visions can be resolved only by attending to the Constitution’s own specific implementation of “democracy,” which itself was the product of a great democratic process after a series of insurrectionary and democracy-imperiling events in the 1860s.

Over the centuries, America’s best constitutional interpreters, both on and off the bench, have generally excelled when they first spotted and then heeded the key historical episode—the event, the evil, the mischief—that prompted a given patch of constitutional text. For example, the Constitution forbids those under age thirty-five from the presidency. Why? Because of a concern about dynasties—young favorite sons of famous fathers, such as William Pitt the Younger, the British prime minister in 1787, who took office at age 24. The Constitution’s requirement that a president be “natural born” had nothing to do with C-section babies or Shakespeare’s Macbeth, and everything to do with the Founders’ anxieties about European noblemen who might seek political power in America. Article I’s rules for congressional membership were crafted with Englishman John Wilkes in mind, as were the later rules of the Fourth Amendment. The first sentence of the Fourteenth Amendment repudiated specific language in Dred Scott. The equality commands of Section One of the Fourteenth Amendment aimed especially at ending Black Codes in the Deep South. In affirming fundamental rights from state and local abridgment, Section One had centrally in mind—among other things—the urgent need to protect freedom of speech, freedom of worship, and the right to keep guns for personal protection.

Underlying Section Three of the Fourteenth Amendment, there resides a similar key episode, an episode known to virtually all Americans in the 1860s and, alas, forgotten by most Americans today, even the learned. The episode has gone almost unmentioned in all previous scholarship on Section Three and in all previous briefing in this case. We believe that this episode is a key that can unlock many of the issues presented by today’s case.

In Part One of what follows, we briefly tell the story of the First Insurrection of the 1860s—the insurrection before the Second Insurrection of the 1860s, typically known today as the Civil War. In that First Insurrection, high-level executive officials in Washington, DC, violated their solemn constitutional oaths as part of a concerted plan not just to hand over southern forts to rebels, but also to prevent the lawful inauguration of the duly elected Abraham Lincoln. The parallels between this insurrection in late December 1860 and January 1861 and the more recent Trump-fueled insurrection of late December 2020 and January 2021 are deeply and decisively relevant to today’s case. (Throughout this brief, we accept the factual findings of the trial court regarding these events.)

If one thinks—as do many journalists and noisemakers lacking historical expertise—that Section Three was only about “insurrections” akin to the Civil War, then the Trump-fueled insurrection of 2020–21 pales in comparison. The invocation of Section Three looks rather cutesy, a gimmick of clever lawyers and law professors. But if one understands—as did all the men who drafted and ratified Section Three—that before the giant insurrection that began in mid-April 1861 there was a smaller one that was also of central concern, then the matter looks entirely different.

Today’s facts are remarkably similar to those of the First Insurrection of the 1860s. In a crucial mid-Feb. 1868 Senate discussion about a particular cabinet officer under President James Buchanan, Senator Jacob Howard passionately explained that this ex-officer should never sit in the Senate precisely because—long before Fort Sumter fell—this powerful oath-breaker, one of the nation’s “principal public functionaries,” had been part of a cabal “endeavoring to . . . beleaguer the city of Washington with the design of seizing it, and, at all events, preventing the inauguration of President Lincoln in the succeeding March.”2 Later in this key debate, which revolved around a test-oath law closely analogous to Section Three (then a few months shy of official ratification), Senator Oliver Morton likewise blasted several of Buchanan’s cabinet members. These oath-breakers, Morton thundered, had abandoned their posts while publicly proclaiming

that secession was right and that southern States ought to be allowed to break up this Union and form a new government without opposition. Those things went on until the 4th of March, 1861, when there was scarcely anything left of this Government, as we all know . . . to protect the inauguration of President Lincoln.3

Of course, the precise actions, inactions, plots, intentions, and mens rea of Donald Trump in the insurrection of 2020–21 need to be properly evaluated before he is deemed ineligible under Section Three. As we explain in Part Two, the Constitution’s structure enables a fifty-state solution in which different states may properly have different procedures and protocols for implementing Section Three. Some states may carefully police ballot access even in primary elections; others will focus more on the general ballot. Still others may wait until vote tabulation begins; and yet another cluster of states may defer to Congress as the last actor when electoral-college ballots are unsealed. Different states may permissibly have different standards and modes of proof, both for presidential elections and state judicial elections (also covered by Section Three) and myriad elections in between.

States can have even stricter standards than Section Three provides, so long as such standards meet global federal constitutional principles (free speech, due process, racial equality, etc.) as construed by this Court, and state constitutional requirements as understood by the states’ supreme courts. See Moore v. Harper, 600 U.S. 1 (2023). There is no federal constitutional requirement that any state even hold a popular presidential election. Each state’s greater power to not hold a binding election subsumes a lesser power to structure its presidential election in its own way, within a broad range.

This Brandeisian fifty-state solution means that this Court should recognize Colorado’s power to act, and should opine that the facts as found permit Colorado’s action under Section Three. Were this Court (wrongly) to hold that Donald Trump is categorically eligible and that states cannot invoke Section Three with regard to the events of 2020–21, Your Honors should understand that this Court cannot in the nature of things be the sole and last word. Individual voters may think that Trump is ineligible and cast their votes accordingly. Individual Congress members may think the same thing, and Congress has a crucial role to play when opening the electoral ballots in joint session—a role it has played in many past elections.4 And, to repeat, states could keep Trump off the ballot wherever their constitutions allow them to adopt stricter eligibility rules than those in the U.S. Constitution.

In Part Two, we shall canvass a wide range of issues raised by this case and explain why many of them are easy. Of course the president is an “officer” covered by Section Three. Of course a detailed congressional statute is not necessary to implement Section Three. Of course an ineligible person is ineligible unless and until amnestied. Of course a person can engage in an insurrection with words as well as deeds. Of course an insurrection can begin locally. And so on.

In the end, this momentous case is easier than it may at first seem, once one understands the historical events that triggered Section Three.

ARGUMENT

I. The Story and Significance of the First Insurrection of the 1860s

A. The Story

Almost every American schoolchild today knows the name Benedict Arnold, but how many have heard of John B. Floyd?5

Everyone knew his name in the 1860s. Loyal unionists labeled him the new Benedict Arnold, and many did so entirely in reference to his actions in the First Insurrection of the 1860s, prior to Lincoln’s inauguration.6 Like Arnold, Floyd held the keys to America’s national security and then tried to hand those keys to the enemy.

Floyd, an unapologetic Virginia slaveholder, served as President James Buchanan’s secretary of war from 1857 to December 29, 1860, when he resigned in protest after Buchanan declined to abandon Fort Sumter. Most crucially for today’s case: In the weeks after Lincoln’s election in early November 1860, Floyd used the great powers of his office, through a devious combination of affirmative acts and strategic failures to act, to try to thwart a proper transition of power.

One bright thread of this storyline involved southern forts—a thread that would eventually become the fuse of April 1861 in Charleston Harbor. South Carolina purported to secede on December 20, 1860. A week later, rebels seized Fort Moultrie and Castle Pinckney in Charleston Harbor and raised the Palmetto flag over these federal outposts. In the days that followed, rebels captured many other strategically positioned fortresses, including Forts Morgan and Gaines guarding the mouth of Mobile Bay; Forts Pulaski and James Jackson, the gateways to Savannah; Pensacola Bay’s Forts McRee and Barrancas; and Forts Jackson and Saint Philip, which together shielded New Orleans. By early February, the only major installations in the Lower South over which the Union flag still flew were Charleston’s own Fort Sumter, Pensacola’s Fort Pickens, and Key West’s Fort Taylor. On February 7, 1861, Representative Henry Winter Davis of Maryland exclaimed: “Even cabinet ministers have violated their oaths, by organizing insurrection.”7

Looking back on the 1860–61 interregnum, ex-President Ulysses S. Grant in his famous memoirs denounced Floyd for having “scattered the army so that much of it could be captured when hostilities should commence, and distributed the cannon and small arms from Northern arsenals throughout the South so as to be on hand when treason wanted them.”8

A furtive insurrectionist in late 1860, Floyd soon became an avowed one in mid-1861, as a Confederate brigadier general openly warring against the very Constitution that he had sworn a solemn Oath to support—as head of the War Department, no less. In early 1862, Grant met Floyd on the battlefield, almost face to face. Floyd commanded Tennessee’s Fort Donelson, which fell to Grant in mid-February shortly after Floyd fled the battle scene.

This Union triumph, its first decisive victory of the Civil War, began Grant’s rise to glory as Lincoln’s heir—first as the Lincoln-appointed commanding general of the U.S. Army (1864–69), then as acting secretary of war (1867–68), and finally as a two-term president of the United States (1869–77). Grant surely understood, as did much of America, that his own life and Floyd’s had fatefully intertwined.

In telling the story of Fort Donelson, Grant, echoing Henry Winter Davis, emphasized that Floyd was not merely an insurrectionist but also an oath-breaker—the precise toxic combination at the bullseye of Section Three. When Section Three of the Fourteenth Amendment was being drafted and proposed in the mid-1860s, Grant had warmly supported this Amendment9—as Salmon P. Chase had not. In his memoirs, Grant acidly commented that Floyd was “unfitted for command, for the reason that his conscience must have troubled him and made him afraid. As secretary of war he had taken a solemn oath to maintain the Constitution of the United States and to uphold the same against all its enemies. He had betrayed that trust.”10

The insurrectionary betrayals perpetrated by Floyd and other top officials in the lame-duck Buchanan Administration went far beyond the abandonment of southern forts. They also involved, through both actions and inactions of Floyd and his allies, efforts to prevent President-elect Lincoln from lawfully assuming power at his inauguration.

Even before the inauguration, alarms rang out in Congress about the First Insurrection already underway. On February 1, 1861, Pennsylvania’s Representative John W. Killinger declared on the House floor that “preparations are actually threatened to take possession of this Capitol, and prevent the inauguration of the President elect. So far has the conspiracy progressed, that it . . . holds within its grasp the sworn officers of the Government. . . . Before Mr. Lincoln is inaugurated, this District will be the theater of commotion, and it may be, of violence.”11 Later that month, Killinger’s fellow Pennsylvanian James Hepburn Campbell echoed this point about oath-breaking insurrectionists: “[T]his treasonable conspiracy, to resist the inauguration by force of arms, . . . has drawn within its fatal vortex chiefs of the Cabinet.”12 And on February 18, 1861, Floyd’s successor in the War Department—Joseph Holt, himself true to his oath—confirmed that oath-breaking insurrectionists such as Floyd had indeed aimed to prevent the inauguration:

[i][M]en occupying the highest positions in the public service, . . . who, with the responsibilities of an oath to support the Constitution still resting upon their consciences,[/i] did not hesitate secretly to plan, and openly to labor for, the dismemberment of the Republic . . . . [M]en in high political positions here . . . were known to have intimate affiliations with the revolution—if indeed they did not hold its reins in their hands—to the effect that Mr. Lincoln would not, or should not, be inaugurated at Washington.13

Though the Capitol did not fall in 1861, it was a close-run thing. On February 13—the key day that Congress was set to unseal electoral votes and certify Lincoln’s victory—a knot of anti-Lincoln men congregated near the Capitol. But, appropriately fortified by General Winfield Scott, the Capitol held.14

In the years that followed, Lincoln men retained vivid memories of this first attempted insurrection in Secession Winter, pre-Sumter. Both in Congress and in public discourse everywhere, Floyd’s name became a byword for the toxic combination of oath-breaking and insurrectionism. He was as infamous as was Benedict Arnold at the Founding.

Between 1861 and 1871, a series of federal Oath policies and laws emerged.15 Eventually, these policies and laws ripened into what became Section Three of the Fourteenth Amendment. In countless conversations before, during, and after the drafting and ratification of Section Three, Floyd came to epitomize those who should not be allowed back in power (absent amnesty).16 For most of this period Floyd himself was dead, having perished in 1863. He had become a meme, an archetype.

An early and widely publicized version of Section Three, drafted in the spring of 1866, was quite draconian, envisioning the disenfranchisement of millions of insurrectionists: “Sec. 3. Until the 4th day of July, in the year 1870, all persons who voluntarily adhered to the late insurrection, giving it aid and comfort, shall be excluded from the right to vote for Representatives in Congress and for electors for President and Vice President of the United States.”17 Section Three’s final version was much softer but more focused on Floyd-like high betrayal, mandating the mere disqualification of a few thousand insurrectionists who were also oath-breakers, and also providing for congressional amnesty.

But in one obvious and high-profile respect, Section Three as enacted went far beyond the early draft. It referred to all insurrections, past and future, and not merely to “the late insurrection” of the 1860s. It laid down a rule for the benefit of generations yet unborn—for us today, if only we are wise enough and faithful enough to follow its words as written and intended.

Soon after the Fourteenth Amendment formally came into effect in mid-1868, America elected Grant president. Grant placed Brevet Major General Edward Canby in charge of Virginia’s Reconstruction. As Grant later explained in his memoirs, Canby was an officer “of great merit”—“naturally studious and inclined to the law.” Few, if any, army officers, wrote Grant, “took as much interest in reading and digesting every act of Congress. . . . His character was as pure as his talent and learning were great.”18

Shortly after the Fourteenth Amendment’s formal promulgation, Canby properly concluded that Section Three was self-executing. Any disqualified candidates in the Virginia elections, Canby announced, would not “be allowed to enter upon the duties of the offices to which they may have been chosen, unless their disabilities have been removed by Congress.”19 He kept at least two disqualified candidates-elect out of the legislature.20

When word of Canby’s constitutional decisions reached Congress, John Bingham, a chief architect of the Fourteenth Amendment, cheered. “[T]hat veteran officer,” Bingham said, “faithful to his duty, excluded from the Legislature of Virginia in its organization every man who could not swear he was not disqualified by the provisions of the fourteenth article of the amendments of the Constitution.”21

Canby acted on his own initiative. No congressional statute had specifically provided for “proceedings, evidence, decisions, and enforcements of decisions”—contrary to Chief Justice Chase’s claim on circuit that these “are indispensable.” In re Griffin, 11 F. Cas. 7, 26 (C.C.D. Va. 1869).22 Like other military governors under President Grant,23 Canby took the Constitution at its word.

B. The Significance

In certain respects, the insurrection of 2020–21 posed an even more egregious invasion of our democracy than the First Insurrection of 1860–61. The Capitol did not fall in 1861. The First Insurrection of the 1860s largely failed in DC. But in 2021 the Capitol did in fact briefly fall, in an insurrectionist effort to impede the lawful counting of presidential ballots and the inauguration of President Biden. On January 6, 2021, the Confederate flag made its way into America’s citadel, as it had not on February 13, 1861—all because of what Donald Trump did do and did not do, over the course of many weeks, as recounted by the trial court in this case.

Given that Section Three was drafted with both the First Insurrection of the 1860s (aka Secession Winter) and the Second Insurrection of the 1860s (aka the Civil War) exactly in mind, faithful interpreters today must admit that the events of 2020–21 fall squarely within the heartland of Section Three—in much the same way that, say, 1950s Jim Crow laws violated the core commitments of Section One and early-twenty-first-century laws prohibiting guns in homes violated other core commitments of Section One.

Section Three does not require that an oath-breaker actually use his powers of office in connection with his insurrectionary acts. But Floyd had done just that. In this way, he was worse than Jefferson Davis and Robert E. Lee. Davis in 1860 was a former secretary of war and a current member of Congress. In neither official capacity could he thwart Lincoln’s inauguration or betray federal forts. Lee in 1860 was a mid-level federal military man. Like Davis, Lee in 1861 was an insurrectionist and a former officer, but he had not been an insurrectionist officer—an insurrectionist while in office using the powers of the office to engage in insurrection and give aid to other insurrectionists. But Floyd did in fact bend his office to betray his oath.

And so did Donald Trump, according to the facts as found by the court below in this case. Trump’s case is thus the easy case—a paradigmatic case—for application of Section Three.

Floyd’s misconduct also reminds us that engaging in insurrection, and giving aid or comfort to insurrection and insurrectionists, often involves a complex combination of devious actions and inactions. Certain inactions loom especially large when a current officer, with special obligations to affirmatively thwart other insurrectionists—indeed, other insurrectionists who have been egged on by that very officer—instead sits on his hands, smiling, as chaos erupts around him. This is precisely the case of Donald Trump.

War Secretary Joseph Holt put the point well in February 1861, expressing a sentiment very widely shared by the Lincoln men who later crafted Section Three: “[T]he highest and most solemn responsibility resting upon a President withdrawing from the Government [is] to secure to his successor a peaceful inauguration.”24

No congressional statute specifying enforcement procedures is necessary to implement Section Three. This was the view of Lincoln’s truest heir, Ulysses S. Grant. Grant had supported Section Three when it was pending and faithfully enforced it thereafter, via Canby and others.

Salmon P. Chase, another Lincoln man, had not supported Section Three when it was pending and failed to faithfully enforce it thereafter. Chase harbored presidential ambitions in the late 1860s, and many scholars have suggested that these ambitions warped his judicial judgments in Section Three cases. Whatever his motivation, his Section Three rulings were poorly reasoned and internally inconsistent.25

If this Court must ultimately choose between Grant and Chase, it should choose Grant, as did the American people themselves, when in the fall of 1868—almost immediately after the ratification of Section Three—they voted to put Grant and not Chase in the sacred office where Lincoln once sat.

II. Twenty Questions

1. Is the president an officer within the meaning of Section Three?

Undoubtedly. It would have made no sense whatsoever in 1866–68 to say that Floyd (were he alive) could not oversee the Army as secretary of war but could command all armed forces as commander in chief. No scholar has identified even a single person who clearly said anything like the following in Congress or in state-legislative ratification debates in 1866–68: “The president is not an officer within the meaning of Section Three.” At one point in the drafting process, Senator Reverdy Johnson asked on the floor why the presidency was not mentioned explicitly. Senator Lot Morrill immediately replied that Section Three’s generic “office” language covered the presidency. Johnson pronounced himself entirely satisfied. He now had “no doubt” that the presidency was covered.26 Thereafter, myriad politicians and publishers expressly declared that Section Three would bar oath-breaking insurrectionists such as Jefferson Davis from the presidency, absent amnesty. Indeed, this was a central aim of the Section.

Article II provides that the president shall “hold his Office” for a four-year term, prescribes an oath for “the Office of President of the United States,” and further provides that the president “shall be removed from Office on Impeachment . . . and Conviction” (emphasis added). Elephants do not hide in mouseholes. If Section Three exempted presidents, we should expect to see many discussions of why Section Three included such an egregious loophole. No such discussions exist.

When Civil War lawmakers aimed to exempt the president, they did so expressly. The Ironclad Oath Act of 1862 applied to “every person elected or appointed to any office of honor or profit under the government of the United States, either in the civil, military, or naval departments of the public service, excepting the President of the United States.”27 This language—in a landmark Oath-law predecessor to Section Three itself—proves that Congress and the public plainly understood that “the President of the United States” was emphatically a person who held an “office . . . under the government of the United States.”

2. Doesn’t every officer need a commission?

The Constitution says that the president “shall Commission all the Officers of the United States.”28 The president ordinarily does not commission himself. So does the Constitution mean that the president is thus not an officer?

This makes a hash of the Constitution as a whole. It makes far more sense to say that the president is not the kind of officer who needs a president-issued commission. Nor is the vice president. The reason for this is simple, when the Constitution is read holistically: A commission is a piece of paper identifying who is an officer and when his/her status as an officer commenced. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 156–57 (1803). But for presidents and vice presidents, the Constitution itself provides a separate mechanism for answering these questions. As we explained more than a decade ago, Congress in certifying the electoral votes issues a “commission-equivalent,” identifying who the new president and vice president will be. And the Constitution itself specifies when the office commences: precisely every four years, at noon on Inauguration Day.29

This congressional commission-equivalent process is of enormous constitutional significance. It is, formally, what makes a president president. It was the very process that the insurrection of 2020–21 aimed to disrupt. Donald Trump’s current efforts in this Court to exempt himself from the Constitution’s plain letter and spirit—based on the Commission Clause, of all things!—give new meaning to the word chutzpah.30

3. What about the Impeachment Clause?

This clause refers to “the President, Vice President, and all civil officers of the United States.” If the president is an officer, why doesn’t the text say “all other civil Officers of the United States”? Aha!, exclaims Professor Mousehole, triumphantly.

One obvious answer to the fictional Professor Mousehole is that the president is not purely a civil officer but also a military one, as commander-in-chief. The vice president is second in military command, should the commander fall. Or so a draftsman might have thought. Today, America’s soldiers salute the president and vice president, but not, say, a typical senator or cabinet secretary or justice.

4. What about Justice Story’s Commentaries?

Justice Story basically asked Questions 2 and 3, to which we have offered our short answers. Of course, Story did not live to see Section Three, so he cannot be strongly relevant on what its drafters and ratifiers meant. Great as he was, Story was hardly infallible, as this Court recognized in Moore v. Harper, 600 U.S. at 34, which sidestepped Story’s hasty embrace of ISL theory. See also U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 856 (1995) (Thomas, J., dissenting) (critiquing Story similarly).

5. Isn’t a presidential Oath to “preserve, protect, and defend the Constitution” different than an Oath “to support the Constitution” within the meaning of Section Three?

If anything, the presidential oath is more demanding. A president must affirmatively protect the Constitution. Certain intentional inactions—smiling and sitting on his hands amidst an insurrection—are more constitutionally culpable. Such conduct is “giv[ing] aid or comfort” by inaction precisely because the presidential Oath creates a more explicit and emphatic duty of action. To repeat Holt’s famous language that rang in the ears of Section Three’s drafters: “[T]he highest and most solemn responsibility resting upon a President withdrawing from the Government [is] to secure to his successor a peaceful inauguration.”31

It is silly to say that the president’s Oath is not covered by the sweeping and generic language of Section Three. This is like saying that the Fifth Amendment prohibits double but not triple jeopardy.

6. Is a detailed congressional statute necessary to implement Section Three?

No. Neither President Grant nor Congressman Bingham thought so. They were right. While the proposed Fourteenth Amendment was pending in the states, senators of both parties—men who were on opposite sides of the proposed amendment—simply took for granted, in debating companion Reconstruction legislation, that Section Three would kick in, and thus kick out any existing ineligible officers, the very “moment” the amendment was duly ratified.32

No detailed statute is necessary to implement any other part of the Fourteenth Amendment or its cognate amendments, the Thirteenth, Fifteenth, and Nineteenth. For example, no statute was needed when this Court desegregated public schools, mandated appointed counsel for indigent criminal defendants, incorporated the Bill of Rights against states, and ended malapportionment. A congressional statute is indeed necessary for federal criminal sanctions to operate. See United States v. Hudson & Goodwin, 11 U.S. (7 Cranch) 32 (1812). A congressional statute may be necessary for funds to be expended in various situations. See Missouri v. Jenkins, 515 U.S. 70 (1995). But much of Section Three is self-executing, as Grant and his men understood. Thus, Section Three can be properly executed by state officials of all sorts as part of a fifty-state solution.

7. What about Griffin’s Case?

This 1869 ruling by Circuit Justice Chase, claiming that Section Three cannot be operationalized absent specific implementing legislation from Congress, clashes with an earlier Chase ruling involving Jefferson Davis. There, Chase treated Section Three as emphatically self-executing. United States v. Davis, 7 F. Cas. 63, 102 (C.C.D. Va. 1869). Davis was itself deeply flawed in other ways. (The notion that Section Three somehow effectively barred criminal prosecution of actual traitors—and the worst traitors at that, oath-breaking traitors, including Jefferson Davis!—borders on the preposterous.) Chief Justice Chase was a giant, but these Section Three cases were not his finest hour. Nor do they bind this Court.33 Also, they conflict with the contemporaneous actions of the Grant Administration. Chase expressed doubts about Section Three prior to its ratification, so he was likely not its best exponent. By contrast, Bingham and Grant both backed the Fourteenth Amendment at every stage. Bingham was himself a great constitutional lawyer. Though not law-trained, Grant was a gifted reader and writer of the English language, a champion of honest plain meaning.

8. Is a criminal conviction necessary to trigger Section Three?

No. Section Three says nothing of the sort, and it could have easily done so had its drafters aimed to enact such a requirement. Grant did not require convictions for those deemed ineligible under Section Three in 1869 Virginia and elsewhere.

9. Does Section Three apply beyond the two main insurrections of the 1860s?

Emphatically. The early public draft expressly referred only to “the late insurrection” and expressly sunsetted after 1870. Congress shifted gears dramatically when it revised Section Three to apply to all future insurrections, but to do so modestly—with a lesser penalty (disqualification, not disfranchisement), for a vastly smaller group of malefactors (only oath-breaking insurrectionists), and an express provision for congressional amnesty.

10. Could Trump be amnestied at some future point?

Yes. But until that happens, he can be deemed disqualified and kept off the ballot. The theoretical possibility of a future change of law or fact does not change the law or facts at present. States may legitimately keep persons off the ballot who will not be eligible to serve absent some utterly speculative future development. More than a decade ago, the Tenth Circuit, per then-Judge Gorsuch, rightly affirmed Colorado’s authority to keep a non-natural-born citizen off the presidential ballot, even though the Constitution at some later time prior to inauguration could have been amended to eliminate the Natural-Born Clause. Hassan v. Colorado, 495 F. App’x 487 (10th Cir. 2012). Thus, Senator Daines’s too-clever-by-half distinction between “categorical” and other ineligibility rules will not wash.34 To rule that Section Three cannot be applied before Inauguration Day is either to read Section Three out of the Constitution or to create a crisis on Inauguration Day.

11. Can mere words suffice to trigger Section Three?

Definitely. Conspiracies—agreements—are paradigmatically effectuated with words. So are incitements. In 1860, John Floyd used words galore, both publicly and privately, to incite and encourage others to take up arms against the Constitution. In 2020–21, so did Donald Trump, according to the well-supported factual findings of the trial court.

The super-strict free-speech doctrines applicable in criminal prosecutions, see, e.g., Brandenburg v. Ohio, 395 U.S. 444 (1969), do not automatically carry over to mere issues of ballot eligibility. One takes an Oath of constitutional fidelity by speaking, and one may refuse to take an Oath by speaking—for example, by saying “no.” A refuser cannot be criminally punished but surely can be barred from office. The Constitution itself says so in Article VI. Likewise, Oath-violators can be kept from office, even if these violations occur via pure speech.

12. Can inactions ever count as giving “aid or comfort”?

Yes, see question 5, supra. In Trump’s case—as with the paradigm case of Floyd—there exists a complex web of spidery actions and inactions, as the trial court below made clear in its findings of fact. Especially because some of Trump’s own actions of plotting and incitement prompted actual violent insurrection by others, he was under a stronger duty to take affirmative steps to arrest that insurrection once it erupted into a deadly assault on the Capitol. It was perfectly sensible for the trial court to consider Trump’s entire course of conduct, including his inactions, as a whole.

13. Can a local event ever be a true insurrection?

Yes. Kittens can become cats. Chickens can hatch from eggs. Small insurrections can swell into giant insurrections. In American history, notable insurrections have included Shays’ Rebellion in the 1780s, the Whiskey Rebellion in the 1790s, and the Nullification Crisis of the 1830s.35 Orchestrated and large-scale political violence in the national capital and assaults on the national Capitol are especially apt to be per se insurrectionary, particularly when they aim, on a quite specific and supremely important day of America’s constitutional calendar, to prevent the lawful certification of a duly elected president-elect (February 13 in 1861, January 6 in 2021). This “local” scenario was squarely in the minds of those who framed and ratified Section Three, focused as these Lincoln men were on villains such as John Floyd and his cabal.

14. Who decides and how?

In many respects, our Constitution is decentralized and departmentalist. Many interpreters properly play a role.

For example, in federal criminal law, each of six distinct entities can thwart criminal punishment if that entity alone has strong constitutional scruples. The House may refuse to vote for a criminal law it deems unconstitutional, regardless of what this Court thinks. Ditto for the Senate. In these scenarios, the naysaying legislative chamber plainly prevails, because no federal common law of crimes is allowed. Hudson & Goodwin, 11 U.S. at 32–33. A president may veto a criminal bill, or pardon all potential defendants, even before trial, and may do so on constitutional grounds that this Court rejects—much as President Thomas Jefferson effectively nullified judicial rulings on behalf of the Sedition Act of 1798. A grand jury may refuse to indict and may not be mandamused. A trial jury may refuse to convict, and judges may “strike down” a criminal law on its face or as applied. In general, this system is asymmetric. The entity with the stronger constitutional doubts/objections often prevails.

So too in presidential elections on the issue of eligibility. Entities with higher constitutional standards often prevail. Even were this Court to reverse the Colorado Supreme Court, Colorado could seek to reinstate its ruling against Trump on independent state-law grounds—say, on the theory that even behavior short of insurrection should disqualify a given candidate from America’s post of highest honor and power. States have long had sore-loser laws, which prohibit the loser of a primary election from running in the general election. A state tomorrow may amend its existing laws to encompass the conduct of Donald Trump in 2020–21. If he does not epitomize a sore loser, it is hard to think who does. Of course, states may not pass ex post facto criminal laws, but mere ballot ineligibility is different from traditional criminal punishment.

This Court is thus not the only decisionmaker in a complex electoral-college system. States have wide discretion in structuring their systems, both procedurally and substantively. See Hassan v. Colorado, 495 F. App’x 487 (10th Cir. 2012) (Gorsuch, J.) (“[A] state’s legitimate interest in protecting the integrity and practical functioning of the political process permits it to exclude from the ballot candidates who are constitutionally prohibited from assuming office”). In many ways, state courts, and not this Court, are the main backstops. See Moore v. Harper, 600 U.S. at 34–37.

15. What about Congress?

Congress on Judgment Day can refuse to count electoral votes that it alone deems improper. Congress has in fact done so in past elections. For example, in 1873 Congress refused to count actual electoral votes that had been cast for Horace Greeley, who had recently died and would be unable to assume the presidency.36 In 1865, it refused to count electoral votes from at least two states, Louisiana and Tennessee, then claiming to be states in good standing.37

16. What if other states react to Colorado by playing tit for tat, removing other candidates from the ballot, perhaps pretextually, and setting off an interstate electoral-arms race?

Other states can do this even now, with or without honest enforcement of Section Three. So far as the U.S. Constitution is concerned, the Florida legislature can itself choose presidential electors. But in doing so, it must follow its own state constitution as construed by its state supreme court. Thanks to this Court’s sound decision in Moore v. Harper, a ruling upholding the Colorado court will not create chaos, contrary to the fevered imaginations of some commentators.

17. What if Section Three were used in some future case to disqualify prominent supporters of, say, the George Floyd protestors?

If these supporters truly meet the standards of Section Three, then so be it. But Section Three by careful design applies only to a handful of oath-takers, not all Americans. It requires genuine “engage[men]t” or “giv[ing] aid or comfort.” And it requires a genuine insurrection, not a mere tumult. Deadly assaults on the Capitol on the day Congress meets to count electoral-college votes and certify/commission a new president should not be conflated with barroom brawls in Peoria. Abstract statements of solidarity by legislators are very different from actions undertaken by executive officers with operational power and control. Any law can be applied mindlessly far beyond its proper scope. That cannot be an excuse to refuse to apply the law at its core. The core of Section Three is a situation akin to the John Floyd scenario of 1860, not the George Floyd scenarios of recent years.

18. Is it relevant that Section Three also applies to purely state offices?

Yes. State legislatures, for example, are squarely covered. Ballot rules for state legislators fall in the heartland of state law as overseen by state courts. Constitutionally, presidential elections also fall in this state-law heartland: The electoral-college system involves fifty separate and simultaneous state elections, not one undifferentiated national election. Given this reality, this Court should tread lightly in overseeing the state court below. Otherwise, various states may face great difficulty creating unitary election systems integrating state and federal elections.38

19. Which ruling would best comport with judicial minimalism?

A fifty-state solution along the lines we advocate.39 A contrary ruling would, by contrast, impose this Court’s views on all fifty states—and would do so without proper warrant in the Constitution’s text, history, and structure.

20. Which ruling would be the most democratic?

Our democracy allows We the People to democratically protect Ourselves, and the most obvious way We do this is through the Constitution. In the 1860s, We the People carefully considered recent, vivid, and existential threats to democracy itself, and Our answer was Section Three. We the People today can unmake Section Three, should We choose, via constitutional amendment. But until that happens, this Court must honestly enforce Section Three in the name of constitutional democracy. The questions presented by Section Three’s enforcement through state electoral systems are discrete and judicially manageable—typically supervised by democratically accountable state judges. And of course, that Section expressly authorizes additional relief—amnesty—via a two-thirds vote of the Constitution’s most democratic branch, Congress.40

Section Three is hardly the only limit on presidential eligibility. We the People over the years have insisted that a president be at least thirty-five and a natural-born citizen. He or she must fulfill residency requirements. He or she cannot serve more than two and a half terms. He or she may not be a member of Congress. Many of these provisions have democratic justifications even as they also limit democracy in certain respects. Ditto for Section Three.

CONCLUSION

On notable occasions, some of this Court’s greatest rulings have highlighted and heeded key historical episodes that prompted the relevant constitutional text at issue. See, e.g., Powell v. McCormack, 395 U.S. 486, 527–31 (1969) (emphasizing the story of John Wilkes in construing Article I); McDonald v. City of Chicago, 561 U.S. 742, 779 (2010) (discussing the Black Codes in connection with Section One of the Fourteenth Amendment). The Court should extend this grand interpretive tradition today, this time by highlighting and heeding the lessons of John Floyd and the First Insurrection of the 1860s to do justice to Section Three of the Fourteenth Amendment.

Respectfully submitted,

Vikram David Amar*
University of California at Davis School of Law**
King Hall, 400 Mrak Hall Drive
Davis, CA 95616
vdamar@ucdavis.edu
(925) 858-8855
Counsel for Amici Curiae
*Counsel of Record
**University affiliation provided for identification purposes only

Dated: January 18, 2024

_______________

Notes:

1 No party or party’s counsel authored or financially supported any of this brief.  

2 CONG. GLOBE, 40th Cong., 2d Sess. 1170 (Feb. 14, 1868) (emphasis added).  

3 Id. at 1209 (Feb. 17, 1868) (emphasis added).  

4 Constitutional text, history, structure, tradition, and precedent give the presiding vice president a merely ministerial and ceremonial role at this event.  

5 What follows borrows from AKHIL REED AMAR, BORN EQUAL: AMERICA’S CONSTITUTIONAL CONVERSATION, 1840–1920 (forthcoming 2025).  

6 See, e.g., CONG. GLOBE, 36th Cong. 2d Sess. 1370 (Mar. 2, 1861) (statement of Sen. Chandler) (“Floyd, who, like Benedict Arnold, surrendered your forts and your arms—a man who goes down to everlasting infamy, with Judas Iscariot, Benedict Arnold, and all the traitors who have gone before him.”); The Secretary of War, N.Y. TIMES, Dec. 29, 1860, at 4; The Indictment of Floyd, EVENING POST, Jan. 26, 1861, at 2; BURLINGTON FREE PRESS, Feb. 1, 1861, at 1; The Great Conspiracy, What Are Its Plans and Purposes?, N.Y. TIMES, Feb. 5, 1861, at 4 (reprinted in DAILY INTELLIGENCER, Feb. 7, 1861, at 1); The Great Robbery, BENNINGTON BANNER, Feb. 21, 1861, at 2.  

7 BURLINGTON FREE PRESS, February 15, 1861, at 1.  

8 1 ULYSSES S. GRANT, PERSONAL MEMOIRS OF U.S. GRANT 226 (1885).  

9 RON CHERNOW, GRANT 583–84 (2017).  

10 2 GRANT, supra note 8, at 308–09.  

11 CONG. GLOBE, 36th Cong., 2d Sess. 695–96 (Feb. 1, 1861) (emphasis added).  

12 Id. at 909 (Feb. 14, 1861) (emphasis added).  

13 CONG. GLOBE, 37th Cong., 1st Sess. 457–58 (Aug. 6, 1861) (emphasis added).  

14 Ted Widmer, Opinion, The Capitol Takeover That Wasn’t, N.Y. TIMES (Jan. 8, 2021).  

15 See generally HAROLD M. HYMAN, ERA OF THE OATH: NORTHERN LOYALTY TESTS DURING THE CIVIL WAR AND RECONSTRUCTION (1954). In 1861, the Lincoln Administration, and later Congress, had all federal civil officers and employees take an oath to support the Constitution. Id. at 1–2. One year later, Congress passed the more demanding “Ironclad Oath,” requiring civil and military officers (expressly excepting the president) to swear they had not “voluntarily borne arms against the United States,” “voluntarily given . . . aid, countenance, counsel, or encouragement” to the Confederacy, nor performed any of the “functions of any [Confederate] office.” Act of July 2, 1862, ch. 128, 12 Stat. 502. In 1868 and 1871, Congress added further refinements. Act of July 11, 1868, ch. 139, 15 Stat. 85; Act of Feb. 15, 1871, ch. 53, 16 Stat. 412.  

16 See, e.g., CONG. GLOBE, 37th Cong., 2d Sess. 970 (Feb. 18, 1862) (statement of Sen. Trumbull) (“[If] a traitor in arms against the Government, Floyd, of Virginia, for instance, were appointed . . . does the Senator hold that we should be bound to receive him as a member . . . ?”); id. at 970 (Feb. 26, 1862) (statement of Sen. Sherman); CONG. GLOBE, 39th Cong., 1st Sess. 145 (Jan. 8, 1866) (statement of Rep. Shellabarger); CONG. GLOBE, 40th Cong., 2d Sess. 970 (Feb. 18, 1868) (statement of Rep. Cook) (discussing Section Three and proclaiming that “persons who had, like . . . Floyd, . . . held high office in the Government and betrayed and well-nigh ruined the Government, whose Constitution they had solemnly sworn to support, should not again be [e]ntrusted with power over loyal men . . . .”); cf. CONG. GLOBE, 39th Cong., 1st Sess. 3146 (June 13, 1866) (statement of Rep. Finck) (assuming that disloyal cabinet members fell within the ambit of any version of Section Three under consideration).  

17 CONG. GLOBE, 39th Cong., 1st Sess. 2542 (May 10, 1866).  

18 2 GRANT, supra note 8, at 372.  

19 Official Orders, DAILY MORNING CHRON., Sept. 17, 1869, at 1.  

20 CONG. GLOBE, 41st Cong., 2nd Sess. 382, 417 (Jan. 12–13, 1870) (statements of Sens. Stewart and Thurman); PHILA. INQUIRER, Oct. 5, 1869, at 4 (discussing Canby’s exclusion of over a dozen candidates).  

21 CONG. GLOBE, 41st Cong., 2nd Sess. 495 (statement of Rep. Bingham).  

22 A pair of Reconstruction statutes did authorize military enforcement of Section Three but provided no specific guidance. Act of Mar. 2, 1867, ch. 153, 14 Stat. 428, 429; Act of June 25, 1868, ch. 70, 15 Stat. 73, 74. The purpose of this generic statutory language was to authorize enforcement of Section Three’s rules in military districts even prior to the formal ratification of the Fourteenth Amendment.  

23 For example, President Grant, via General William T. Sherman, ordered Alfred H. Terry, military governor of Georgia, Florida, and Alabama, to “[e]xercise [his] own discretion” in investigating whether disqualified Georgians could take office. CONG. GLOBE, 41st Cong., 2nd Sess. 713 (Jan. 24, 1870).  

24 CONG. GLOBE, 37th Cong., 1st Sess. 457–58 (Aug. 6, 1861) (emphasis added).  

25 See infra note 33 and accompanying text.  

26 CONG. GLOBE, 39th Cong., 1st Sess. 2899 (May 30, 1866).  

27 Act of July 2, 1862, ch. 128, 12 Stat. 502 (emphasis added).  

28 U.S. CONST. Art. II, § 3.  

29 See AKHIL REED AMAR, AMERICA’S UNWRITTEN CONSTITUTION 575–76 n.14 (2012).  

30 Cf. Transcript of Oral Argument at 111, SEC v. Jarkesy, No. 22-859 (Nov. 29, 2023) (Kagan, J.).  

31 See supra note 24.  

32 CONG. GLOBE, 40th Cong., 2nd Sess. 3008–10 (June 10, 1868) (statements of Sens. Morton, Williams, and Hendricks).  

33 For Chase’s jurisprudence on circuit, see C. Ellen Connally, The Use of the Fourteenth Amendment by Salmon P. Chase in the Trial of Jefferson Davis, 42 AKRON L. REV. 1165 (2009); CYNTHIA NICOLETTI, SECESSION ON TRIAL: THE TREASON PROSECUTION OF JEFFERSON DAVIS 293–300 (2017); Gerard N. Magliocca, Amnesty and Section Three of the Fourteenth Amendment, 36 CONST. COMMENT. 87, 105–08 (2021); and William Baude & Michael Stokes Paulsen, The Sweep and Force of Section Three, 172 U. PA. L. REV. (forthcoming 2024) (manuscript at 35–49). For Chase’s pre-ratification qualms about Section Three, see JOHN B. NIVEN, SALMON P. CHASE: A BIOGRAPHY 409 (1995).  

34 Brief for Senator Steve Daines et al. at 16, Trump v. Anderson, Nos. 23-696 & 23-719 (2024).  

35 For detailed analysis of each of these three episodes, see AKHIL REED AMAR, THE WORDS THAT MADE US: AMERICA’S CONSTITUTIONAL CONVERSATION, 1760–1840 (2021), 299–302, 382–87, 598–604.  

36 See Akhil Reed Amar, Presidents, Vice Presidents, and Death: Closing the Constitution’s Succession Gap, 48 ARK. L. REV. 215, 218–19, 226–30 (1995).  

37 See AKHIL REED AMAR, AMERICA’S CONSTITUTION: A BIOGRAPHY 378 (2005); Joint Resolution of Feb. 8, 1865, 13 Stat. 567. On the vice president’s role, see supra note 4.  

38 Cf. Brief of Amici Curiae Professors Akhil Reed Amar, Vikram David Amar and Steven Gow Calabresi in Support of Respondents at 26–28, Moore v. Harper, 600 U.S. 1 (2023) (No. 21-1271).  

39 Cf. JEFFREY S. SUTTON, 51 IMPERFECT SOLUTIONS: STATES AND THE MAKING OF AMERICAN CONSTITUTIONAL LAW (2018).  

40 Gerard Magliocca, Opinion, What the Supreme Court Should Not Do in Trump’s Disqualification Case, N.Y. TIMES (Jan. 5, 2024).  

[admin]

Part 1 of 12

Supreme Court puts details over democracy; appears poised to keep Trump on presidential ballot
by Glenn Kirschner
Feb 8, 2024

During the Supreme Court argument on whether Donald Trump is disqualified from holding office under the 14th Amendment for engaging in insurrection, the Supreme Court justices put details over democracy.

This video reviews the arguments in Donald Trump v. Norma Anderson - the case in which the Colorado Supreme Court disqualified Trump from the Colorado state ballot - and discusses how the justices got bogged down in the details and seemed to lose sight of the big picture: that the plain language of the Constitution disqualifies Trump from holding office.



Transcript

so friends given how today's oral
arguments played out in the Supreme
Court on the issue of whether somebody
who engaged in Insurrection should be
allowed to hold office again in the
future given how those arguments
unfolded today was a rough
day it was a rough day for the rule of
law it was a rough day for the sanctity
of our
vote it was a rough day for
justice let's talk about it because
Justice
[Music]
matters hey all Glen kersner here well
friends I listen to the live stream of
today's Supreme Court arguments on the
issue of whether Donald Trump should get
to be president again whether he's
disqualified under the 14th Amendment
which disqualifies insurrectionists from
holding office whether he should be
disqualified as a Colorado trial court
judge found
ruled after a trial on the merits and as
the Colorado State Supreme Court
affirmed that yes Donald Trump engaged
in Insurrection and is therefore
disqualified under the very terms of the
Constitution today's oral argument was
all about whether the Supreme Court
Justices agreed with that with the
Colorado courts and with the express
language of the Constitution and today
listening to that oral
argument today was not a good day
not a good day for
justice because as you listened to all
of the
justices POS questions of the attorneys
the parties it was clear the justices
were putting details over
democracy the justices focused on things
like
semantics what are the differences
between words like
office and officer and office
holder the justices focused on their
concern that keeping Donald Trump off
the ballot would potentially
disenfranchise
voters but they expressed no concern
whatsoever that the crimes Donald Trump
committed were designed and intended to
disenfranchise 80 million
voters they expressed concern that if
the states were allowed to run their own
elections and qualify or
disqualify potential
candidates if they were allowed to run
their own elections precisely as the
Constitution gives them the power and
authority and responsibility to do
States run their own
elections including elections for
federal office that's why we have 50
different batches of laws and
regulations each state promulgating its
own that's the Constitutional construct
and the justic has expressed concern
that well if the states were allowed to
run their own elections and qualify and
disqualify candidates there would be all
these
inconsistencies
inconsistencies I think one Justice said
maybe inconsistencies bordering on
chaos and yet what did the Supreme Court
do a little over a year
ago when they revoked women's
constitutional privacy rights over their
own reproductive Health decisions and
sent all of that back to the States what
do we now see
inconsistencies dramatic
inconsistencies inconsistencies ordering
on deadly chaos like in states such as
Texas but that didn't seem to be a
concern when they were revoking women's
constitutional privacy rights but today
many of the justices were so
concerned with the inconsistencies that
would result if the states got to do
what the
Constitution gives them the right to do
which is run their own elections
including qualifying and disqualify
qualifying
candidates but friends do you know what
my main concern my main complaint my
main beef is with what unfolded in that
courtroom
today nobody pushed back on the fact on
the
reality that Donald Trump engaged in
Insurrection nobody seemed to quibble
with that nobody seemed to dispute the
Colorado trial court finding that Donald
Trump engaged in Insurrection or the
Colorado Supreme Court affirmation of
that finding that Donald Trump engaged
in Insurrection no surprise right we saw
much of it with our own eyes allow me a
very brief
recap Donald Trump recruited the foot
soldiers of the
Insurrection hey proud boys stand by he
set the date for the capital attack come
to DC on January 6th will be wild he
ginned the crowd up into an angry
frenzy if you don't fight like hell you
won't have a country
anymore he was informed by security that
there were people in the crowd his crowd
that were armed with
firearms and he said I don't care
they're not here to hurt me take down
the effing mags the metal detectors let
them in and then we can all March to the
capital together so he knew that this
would be not just an attack on the US
capital and on the electoral vote count
on the transfer of Presidential Power it
would be an armed
attack and then he told them all to
March to the capital and stop the
certification he said stop the steel and
they did they marched to the capital and
violently stopped the certification and
while the assault on the capital was in
progress Donald Trump refused to call it
off for hours people streamed into the
dining room just off the Oval Office
begging and pleading with him including
family members to call it off call off
the attack and he wouldn't instead he
instead he sent out an incredibly
incendiary tweet Mike Pence didn't have
the courage to do what he needed to do
in other words to keep me in power the
message was sent get him get
him and get him they tried to do with
chance of hang Mike Pence breaking out
at the end of it all he pledged love and
pardons to the
insurrectionists and he is continuing to
deny the elections results to this day I
would argue he's still engaging in
Insurrection of course Donald Trump
engaged in Insurrection and running
through today's argument was the
acknowledgment that everybody seemed to
agree that Donald Trump engaged in
Insurrection so what does that mean
what are the
consequences under our
constitution of somebody who engaged in
Insurrection it can be found in
14.3 no person shall hold any office
under the United States who having
previously taken an oath to support the
Constitution of the United States shall
have engaged in
Insurrection Donald Trump is
disqualified by the Plain language of
the Constitution he is
disqualified but
today the
justices lost sight of the big picture
of the
Constitutional
picture and instead
they put details over
democracy and that is a damn
shame because
Justice
matters but
friends we fight
on as always please stay safe please
stay tuned and I look forward to talking
with you all again tomorrow

2,831 Comments

@jackwalsh4998
1 hour ago
Really BAD I am not an attorney, but I know trump should never be in the white house EVER!
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12 replies

@marierose6792
37 minutes ago
My abject hatred goes to Mitch Mc Connell. History will look back at his legacy as the most destructive figure of our time, just after the horror show of Donald Trump.
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6 replies

@MrJscazz
1 hour ago
Very well put. Very sad day for our country. The integrity of the US Supreme Court is shattered...period.
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1 reply

@susanm2087
34 minutes ago
I am sick to my stomach. What happened to our beautiful United States of America?
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4 replies

@shaneryan9040
35 minutes ago
As an Australian,I am horrified and truly saddened to see America throwing away its most valuable asset.democracy.come November they will be a failed state and the millions who died for the once greatest nation on earth will have died in vain.
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3 replies

@danieljohnstone6805
1 hour ago
Thank You Shane Pray For Us, I,m Prepared To Move To Australia If The Orange Monster is Pu t Back In The White House
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@rosegann8339
1 hour ago
Thank you Shane. Those of us that still care about our country appreciate your comment. We do need your prayers that's for sure
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@spongebarb451
1 hour ago
Thank you for your support. Don’t give up on us just yet, however. Roevember is coming.
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@lindahanchett8994
1 hour ago
You got that right! thank you.
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@peterg5383
1 hour ago
That's not right; they didn't die in vain. They died to protect it in their time. We had ~250 years. If it fails in the end, that doesn't negate the time we did have.
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@nomad634
1 hour ago
Take back your Rupert
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@belladonnatook8851
1 hour ago
@danieljohnstone6805 If they'll have you, you mean. These countries are not extensions of the US. They are sovereign countries & you must ask to be permitted to come. There will be no waltzing in because, well, the world was your oyster. (Emphasis on: "was".)
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@phylis3917
1 hour ago
Love ya. Spread the word.
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@eroscreatives
1 hour ago
Another Australian who agrees 100% with this sentiment.
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@woodstockg346
27 minutes ago
That’s what you get when you have two suspected rapist on that bench, making a judgement against another rapist. America is screwed.
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@ritafuentes4150
1 hour ago
The fact that Thomas didn't recuse himself was a crime in itself!
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21 replies

@alicejones33
1 hour ago
The Roberts Supreme Court lost its remaining shred of respect
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2 replies

@younken24films
59 minutes ago
Today, any shred of sanity from SCOTUS has left the room.
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@billcarr54
41 minutes ago
Arrest Donald Trump !
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1 reply

@A.B.-zs8ir
44 minutes ago
Garland should go home and put someone in as AG who wants to hold tRump accountable to the rule of law!!
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1 reply

@Rat-Salad
31 minutes ago
Trumps judges doing him a favour? Shock.
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@DanielJimenez-mi5zm
1 hour ago
The US Supreme Court really needs to be held accountable if they put Donald Trump on the ballot.
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13 replies

@theresa3
1 hour ago
Glenn for the SUPREME COURT
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1 reply

@raymondbohn2852
1 hour ago
SCOTUS had their last chance to retire their reputation. They blew it. How do we deal with a valueless court?
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3 replies

@pamyuhnke8143
56 minutes ago
I only lasted 90 mins. When the CO lawyer started being interrupted non-stop, I quit out of disgust.
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2 replies

@TheOfficialZombieWhisperer
1 hour ago
I want to understand why people like MTG, Gym Jordan and other Maga-ts in Congress aren't getting the boot
45
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@dwaynejones1555
43 minutes ago
Hypocrisy Supreme Court!
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@jeniferwatton7994
1 hour ago
Trump needs to be stopped.
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11 replies

@stephenmorey8830
1 hour ago
The chief justice has taken the oath of office, and is required by their oath not to violate the 14th Amendment of the Constitution.
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@taracarreon5642
2 minutes ago
We want you, Glenn, to be our general-in-command when, this time around, it will be the Union that revolts. That's us -- the Union. I think it's time to get going with our revolution against the Confederacy, because this situation is now truly, truly bad. War has been declared. What else can you say? They are going to take away our right to vote? They are going to allow any President to throw over our Constitution? They're going to allow someone very, very bad to get in the White House, and then do whatever he wants? A man who will have the license straight from the Confederate Supreme Court to make everything Bad? This is truly America changing! The Supreme Court is letting loose the dogs of war! They're begging us to fight! (So much, Glenn for your idea that the Supreme Court would never do this, because that would mean they give up their ultimate power.) -- Are they getting revenge on us for winning the war? For forcing them to agree with the 14th Amendment before they could be made part of the new Union? I really don't like the way this looks. It's like a huge Fook-You!!! to the Constitution.. I'm thinking of a great story I once read from Diego Rivera"s biography. He was in Germany when Hitler was giving a speech just outside his 2nd story window before a huge crowd. Diego was with some artist literary friends of high quality, and he became more and more worried as Hitler continued "speaking," although he usually yelled. So worried did Diego become that he picked up a rifle that happened to be nearby -- come on, they were Communists. There was a lot of good about the communist movement in those days. Artists from all over came to take up arms against Franco. They weren't afraid of arms because they were in a Just war. Diego aimed it at Hitler and said to his friends that he was going to take him out.. His friends, of course, tried to stop him, and I think they actually had to tussle with him. Diego loves drama. Because they didn't believe Hitler would amount to anything. They won the fight with Diego but they eventually lost their lives, every artist but Diego. Guess what happened to them? Hitler happened to them. Let's not make the same mistake. I predict that Trump will one day be as famous as Hitler. At least, that's the way I see it, and I am a very long time student of Hitler, having studied him intensely for almost 25 years. Trump will go down in history. What? As being the man who defeated America?
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@cartermorganayres5263
1 hour ago
The supreme court's propensity to ignore both legal precedent and the clear wording of the U.S. Constitution truly frightens me.
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@drnancysjohnson3844
1 hour ago
I am sick at heart at what I have heard today. The Supreme Court today is such a disappointment in its unwillingness to stand up for our Constitution & our country & our citizens. The Supreme Court used to stand up for the finest values of our country, for what it meant to be an American & what American meant!
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2 replies

@crafty-lady6853
1 hour ago
For the first time in my lifetime I have lost all respect for the Supreme Court, especially the Sinister 6. I am 72 years old and this court is the worst I have ever seen.
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3 replies

@Mellyn1151
1 hour ago
Those Constitutionalist judges sure missed the mark today....sad and very disheartening.
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1 reply

@sandym8787
1 hour ago
COWARDS - not worthy of being on the High Court .....
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1 reply

@lizlee8686
1 hour ago
We as Americans have a right to protest!!
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@hansombrother1
1 hour ago
They were making the argument that the president of the country is not an officer of the country. Only a corrupt Supreme Court could engage in such semantics .
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@grannygigglesyouwilltoo
1 hour ago
These spineless amoral justices should be BANNED-I AM SO OUTRAGED!
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2 replies

@greatpix
1 hour ago
What the Supreme Court needs to do is find Trump guilty of encouraging and giving aid to an insurrection and willfully trying to change the results of the election in his favor.
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@bbbowen89
1 hour ago
The Supreme Court disappointed us all again!
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1 reply

@maryswanson9982
55 minutes ago
I just want to cry. Our Democracy is lost. We’ll have to vote him out again and again until he gets the point or passes away. Then there will be another one just like him. Our Constitution has been trashed and devalued by our very Supreme Court.
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@johnlionarons9484
1 hour ago
Glenn, you are SO articulate. I am heartsick and repulsed by our "Supreme" Court and its having abandoned any vestige of integrity.
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2 replies

@user-ey1ln8xv1p
1 hour ago
Shameful, just shameful.
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@lindahanchett8994
1 hour ago
Thank you, Glenn! The Imperial Supreme Court is following their king.
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@kathymchugh2786
55 minutes ago
I’m so Disappointed and discouraged with the Supreme Court and afraid of the future of America.
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@EricTemple
1 hour ago
One should never underestimate this Supreme Court.
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1 reply

@FoodieVacations
47 minutes ago
Thank you Supreme Court for doing absolutely nothing, defining close to nothing and clearing up absolutely nothing! My first time listening to you all and I wasn’t impressed. That’s 2 hours I will never get back.
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@adk9215
1 hour ago
Supreme? Court is an embarrassment!!!
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@mik67890
34 minutes ago
Justice Thomas can't be confronted about his wife. Being an involved in the insurrection the court system is the total joke.
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@mizsevenoneeight685
1 hour ago
Why would we expect anything else after Trump was allowed to personally stack the SCOTUS during his tenure???
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@nancyliner5374
54 minutes ago
Putting details over democracy is insane. What on earth is the Supreme Court thinking? How DISCOURAGING - insane
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@stevenjones2673
3 hours ago
Maybe it is time for President Biden to add four more judges to the court!
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32 replies

@willdavis2018
56 minutes ago
The Supreme Court needs to be updated for the 21st century
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@creisda
1 hour ago
It was a rough day for Joe, didn’t deserve that disrespect, Justice will return, keep the faith Glenn, keep moving forward informing us
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@mariabautista2178
50 minutes ago
What a disappointment from the Supreme Court. Trump must be put in jail
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@MarkDeChambeau-lo1rt
1 hour ago
As an addendum, this no longer feels like my country. I am a proud veteran but this is NOT the country I grew up in and NOT the country I helped defend. I don't know who we are anymore.
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@Susan-ql1wb
1 hour ago
What else can Colorado do to keep him from getting back in office. VOTE BLUE IN 2024
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@trudyspringer3356
3 hours ago
You didn’t have to be clairvoyant to predict that these MAGA judges will find in favor of Trump.
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15 replies

@catherinelincoln9830
1 hour ago
Glenn, thanks for that powerful commentary. A sad day for our country. Please continue to fight for justice.
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@dimicdragan5922
1 hour ago
Supreme cowards, not supreme justices. They cowardly avoided the whole point of the case. They found a way around the hot topic. And by doing so, they did the most political thing they could...
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@cathywilson5378
1 hour ago
A very bad day for our country.
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1 reply

@dhulbert855
14 minutes ago
All remaining respect for this SCOTUS is totally in the toilet now.
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@paulabibb1116
1 hour ago
They were childish, avoidant of the real issues, unfocussed, and ludicrous. How do we get them to retire?
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2 replies

@lindahanchett8994
1 hour ago
!!!!!
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@larryyoder4861
9 minutes ago
WEAK and SAD day for our country
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