Is the President an “Officer of the United States” for Purposes of Section 3 of the Fourteenth Amendment?
On January 13, 2021, the House of Representatives voted to impeach then-President Donald J. Trump for inciting an insurrection. The sole impeachment article invoked Section 3 of the Fourteenth Amendment. But the House’s impeachment article elided over a critical threshold question: Was Trump covered by Section 3? The structure of Section 3 of the Fourteenth Amendment is a bit complicated. To assist our analysis, we distinguish the four elements with different typefaces (underline, bold, italics, and SMALL CAPS), and number them out of order:
[3] No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, [1] 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, [2] shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. [4] BUT CONGRESS MAY BY A VOTE OF TWO-THIRDS OF EACH HOUSE, REMOVE SUCH DISABILITY.
First, the jurisdictional element, [1], specifies which positions are subject to Section 3: a “person . . . 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.”
Second, the offense element, [2], defines the conduct prohibited by Section 3. It regulates the conduct of a person satisfying the jurisdictional element who “shall have engaged in insurrection or rebellion against the same [the United States], or given aid or comfort to the enemies thereof.”
Third, the disqualification element, [3], defines the legal consequences or punishment that Section 3 provides. A person who satisfies the jurisdictional and offense elements of Section 3 shall not 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.” The phrase “office . . . under the United States” in the disqualification element is distinguishable from the phrase “officer of the united States” in the jurisdictional element.
FOURTH, the amnesty element, [4], allows Congress to terminate the disqualification or disability: “Congress may by a vote of two-thirds of each House, remove such disability.”
This article does not focus on the offense element [2] and the amnesty element [4]. Rather, to determine whether former-President Trump was disqualified pursuant to Section 3, we will focus on the jurisdictional element [1] and the disqualification element [3].
Section 3’s jurisdictional element applies to exactly four defined categories of state and federal positions. President Trump clearly does not fit into three of these categories. Trump never swore an oath as a “member of Congress,” “a member of any state legislature,” or an “executive or judicial officer of any state.” Indeed, Trump was the only President in American history to have never held prior state or federal, civilian or military, public office. Therefore, the only way for Section 3’s jurisdictional element to cover President Trump would be if he falls into the fourth category: he took an oath to support the Constitution as an “officer of the United States.” Trump only swore one constitutional oath: as President of the United States. In short, for President Trump to be subject to Section 3 disqualification, he must have violated the offense element and fit within the jurisdictional element. And in order to fit within the jurisdictional element, the President must be an “officer of the United States” for purposes of Section 3.
The House’s impeachment article, however, did not address this threshold issue. It stated:
[S]ection 3 of the 14th Amendment to the Constitution prohibits any person who has “engaged in insurrection or rebellion against” the United States from “hold[ing] any office . . . under the United States.”
In fact, Section 3 does not apply to “any person” or even “any person” who committed the conduct provided for in the offense element. Here, the House seemed to assume that the phrase “officer of the United States” was equivalent to the phrase “any person.” Perhaps the House assumed that a President is an “officer of the United States.” Still, the House’s position was not entirely clear.
After the Senate trial, Trump was not convicted. Therefore, he could not be disqualified from holding future office pursuant to the Impeachment Disqualification Clause. But even after Trump’s acquittal, efforts to disqualify the former President based on Section 3 continue. For example, there is a pending concurrent resolution that would find “President Donald J. Trump ‘as an officer of the United States . . . engaged in insurrection or rebellion against the [United States], or g[ave] aid or comfort to the enemies thereof,’ making him ineligible for future office . . . .” This resolution assumed that the President is an “officer of the United States.”
We disagree. There is some good reason to think the President is not an “officer of the United States.” President Trump, who swore only one constitutional oath, does not fall within Section 3’s jurisdictional element. Therefore, he cannot be disqualified pursuant to this provision.
This article will proceed in six parts. Part I will contend that the phrases “officer of the United States” and “office . . . under the United States” in Section 3 refer to different categories of positions. Part II will analyze the phrase “officer of the United States,” which is used in the Constitution of 1788 and in Section 3 of the Fourteenth Amendment. Part III will show that the meaning of the phrase “officer of the United States” did not drift from 1788 through 1868. In both eras, there is substantial evidence that the President was not considered an “officer of the United States.” Part IV will recount longstanding Executive Branch opinions, which affirmed that elected officials like the President are not “officers of the United States.” Part
V will respond to recent arguments suggesting that the President is an “officer of the United States” for purposes of Section 3. Part VI will chart how the courts, and not Congress, will likely have the final say about whether President Trump is subject to Section 3 of the Fourteenth Amendment.
