Disqualification From Office: Donald Trump v. the 39th Congress

Editor's note: This piece has been revised to clarify the representation of Blackman and Tillman's published views.

Donald Trump’s recently announced campaign for a second term as president of the United States must overcome a major constitutional obstacle before the former chief executive faces voters in Republican primaries. The U.S. Constitution requires presidents to be over 35 years old, a U.S. citizen, a U.S. resident for at least 14 years, and, as decided by the 39th Congress in 1868, not a participant in any rebellion or insurrection against the United States. Section 3 of the 14th Amendment disqualifies any person from holding “any office, civil or military, under the United States, ... who, having previously taken an oath ... as an officer of the United States, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same.” As I have written previously, a historically informed interpretation of those terms leaves little doubt that Trump’s conduct on and immediately before Jan. 6, 2021, may fit the bill, although crucial facts necessary for disqualification are disputed. Likewise, Bruce Ackerman and Gerard Magliocca have argued that Trump can be barred from the presidency if Congress declares that, by encouraging the attack on the Capitol, Trump engaged in “insurrection or rebellion.” 

The idea of using the 14th Amendment to bar Trump from holding the presidency a second time is gaining traction. Members of Congress are considering legislation that would create the “legal mechanics” to implement the disqualification provision. Meanwhile, a public interest group has promised to file lawsuits pursuing Trump’s disqualification under the 14th Amendment, citing “overwhelming” evidence that he “engaged in insurrection” by inciting the Jan. 6 attack.

Some have argued, however, that a constitutional technicality immunizes Trump from Section 3 disqualification. Specifically, Josh Blackman and Seth Barrett Tillman claim that the 14th Amendment does not apply to the U.S. president. They argue that “there is substantial evidence that the President was not considered an ‘officer of the United States’” in 1868, when the amendment was ratified. Because Trump is the rare president who held no federal or state office, including military office, before becoming president, they insist that he was never an “officer of the United States” subject to Section 3 disqualification. They do not rule out the possibility that the president is an officer “under the United States” as used in Section 3, an issue on which they take no position, but they claim that this phrase has a substantively different meaning and may cover different officials than an “officer of the United States[,]” as used in Section 3. It is this latter phrase which they focus on.

Blackman and Tillman’s arguments are highly contestable, to say the least. Their case for claiming that the persons responsible for the 14th Amendment interpreted “officer under” and “officer of,” as they maintain the Federalist framers did in 1787, relies almost entirely on two Supreme Court cases, United States v. Mouat (1888) and United States v. Hartwell (1867). The Mouat opinion declared that, “unless a person in the service of the government ... holds his place by virtue of an appointment by the President … , he is not, strictly speaking, an officer of the United States.” Hartwell, which held that a federal clerk was an officer of the U.S., contains similar language.  

But neither case explicitly stated that the president or, for that matter, members of Congress, were not also officers of the government. The court’s attention in both cases was devoted solely to the employment status of the parties before them.

Furthermore, this narrow reading of “officer of” finds no support in the actual history of Section 3. Blackman and Tillman do not point to any person who drafted the 14th Amendment, any person who ratified Section 3, or any commentator who, at the time of drafting and ratification, claimed that a U.S. president was not subject to disqualification. They largely assume, on the basis of two cases that did not concern the president, that Americans in 1868 shared their interpretation of the Constitution. To the contrary, the members of the 39th Congress who framed Section 3 of the 14th Amendment often indicated—and sometimes explicitly stated—that all persons who held office “under the United States” were officers “of the United States.” During the debates over Section 3, no representative or senator alluded to the existence of a distinction between “of” and “under.” Representatives and senators often described the president as having an “office under the United States” and being an “officer of the United States.” They similarly described senators and representatives as “officers of the United States,” even though no member of the 39th Congress was appointed to office by a member of the executive branch or the judiciary. Governors and state legislators were “officers of their states,” even though they were elected rather than appointed to office. A unanimous House select committee report issued barely a month after Congress sent the 14th Amendment to the states concluded that “a little consideration of this matter will show that ‘officers of’ and ‘officers under’ the United States are ‘indiscriminately used in the Constitution.’” The most comprehensive study of state ratification of the 14th Amendment, Joseph James’s “Ratification of the Fourteenth Amendment” does not point to a single example of any journalist or participant in a state convention who distinguished between “officers under” and “officers of” or who otherwise thought a president who participated in an insurrection could not be disqualified under Section 3.

Contrary to Blackman and Tillman’s insistence that only appointees are “officers of the United States,” members of the 39th Congress repeatedly described elected federal officials as “officers of the United States” or “officers of the Government.” The persons responsible for drafting Section 3 regularly spoke of elected officials—including the president—as officers of the United States. Rep. Rufus Spalding of Ohio spoke of the presidency as “this high office of the Government.” Rep. John Holmes of Massachusetts declared the president was “the chief executive officer of the United States.” Rep. Andrew Rogers of New Jersey included the presidency when he stated, “Without the States an officer of the Government cannot be elected.” Sen. Garrett Davis of Kentucky referred to “the portion of the people who choose the officers of the government.”  

Similarly, if Blackman and Tillman’s thesis is correct, then elected state governors are not officers of their state, and elected state legislators are probably not officers of their state either. Again, however, members of the 39th Congress disagreed. They repeatedly referred to elected state officials as officers of the state. Sen. Timothy Howe of Wisconsin spoke of “the Governor and every other officer in the State.” Rep. John Bingham of Ohio insisted that “all legislative, all executive, all judicial officers of every state be bound by an oath.” 

One month after sending the 14th Amendment to the states, the House of Representatives firmly rejected any constitutional distinction between an “office under” and an “officer of.” Federal law prohibited a person who held “any office under the Government of the United States” that paid them more than $2,500 a year from receiving “compensation for discharging the duty of any other office.” Rep. Roscoe Conkling of New York claimed he did not violate this statute when taking a paid position as a federal prosecutor after being elected to Congress. Inverting Trump’s claim, Conkling insisted that the president and members of Congress could hold dual offices because they were officers “of the United States,” not officers “under the United States.” The select committee investigating Conkling disagreed unanimously. The committee report declared, “It is irresistibly evident that no argument can be based on the different sense of the words ‘of’ and ‘under.’” No difference existed between “an officer ‘of’ the United States, or one ‘under’ the government of the United States,” the report concluded. “In either case he has been brought within the constitutional meaning of these words ... because they are made by the Constitution equivalent and interchangeable.”

The drafters of Section 3 did not use “office under” and “officers of” randomly, even if these phrases did not describe different offices or officers. References to office or officer “of” concerned an officer’s employment. For example, members of Congress spoke of “officers of the Freedmen’s Bureau,” “officers of the Treasury,” or, more generally, “officers of the Government.” References to office or officer “under” concerned the officer’s authority. An “office under a state” was one created by state law and for which state law specified duties and a mode of appointment. No member of Congress spoke of an “officer under the Freedmen’s Bureau,” because the source of that officer’s authority was federal law, not the Freedmen’s Bureau.  

Members of the 39th Congress debated who was an “officer,” but not the difference between the use of the two prepositions. Sen. John Sherman of Ohio insisted that several provisional governors in the South were not “officers under the law” because “they were not officers whose commission was provided for by the law.” Lacking legal authority, Sherman insisted that such persons were “agents” rather than officers of any sort.  

But there is a more important point: This debate does not warrant the focus it is getting. What mattered to the members of the 39th Congress were past oaths of office, not a linguistic technicality of which no person who framed or ratified the 14th Amendment seems to have been aware. “All of us understanding the meaning of the third section,” Sen. Sherman stated, “those men who have once taken of oath of office to support the Constitution of the United States and have violated that oath in spirit by taking up arms against the Government of the United States are to be deprived for a time at least of holding office.” Sen. Thomas Hendricks of Indiana, who opposed the 14th Amendment, agreed that “the theory” of Section 3 was “that persons who have violated the oath to support the Constitution of the United States ought not to be allowed to hold any office.”

No member of the Congress that drafted the 14th Amendment distinguished between the presidential oath mandated by Article II and the oath of office for other federal and state officers mandated by Article VI. Both were oaths to support the Constitution. Sen. James Doolittle of Wisconsin declared that Congress need not pass laws requiring presidents to swear to support the Constitution because that “oath is specified in the constitution.” Davis saw no legal difference between the constitutional requirement that “all officers, both Federal and State, should take an oath to support” the Constitution and the constitutional requirement that the president “take an oath, to the best of his ability to preserve, protect, and defend the Constitution.”

Common sense provides another reason for thinking that Republicans in 1866 thought presidents who encouraged insurrections were disqualified from present and future office. Rep. Henry Raymond of New York insisted that Section 3 excluded “from office the leading actors in the rebellion.” Presidents could be considered rebels. Former President John Tyler, who died in 1862, was a secessionist in 1861. More to the point, prominent framers insisted that Section 3 was prospective as well as retrospective. Sen. John Henderson of Missouri declared, “The language of this section is so framed as to disenfranchise from office the leaders of the past rebellion as well as the leaders of any rebellion hereafter to come.” Speaking neither of “offices under” nor “officers of,” Henderson stated that Section 3 “strikes at those who have heretofore held high official position.” Presidents or former presidents are obviously just as likely to lead rebellions as any other high officeholder. The persons who framed Section 3, including Rep. Jehu Baker of Illinois, explicitly included “Governors ...  and State legislators, who having sworn to support the Constitution, then break their plighted faith” as among the persons who ought to be excluded from future office. Even applying Blackman and Tillman’s understanding that officers are appointed, none were “officers of a State.”

Despite Blackman and Tillman’s claims, the answer is actually quite simple: Section 3 of the 14th Amendment disqualifies from present or future federal or state office any person who participates in an insurrection during or after being employed by the federal or a state government in an office that requires an oath to support the Constitution. Trump was employed from January 2017 to January 2021 by the federal government in an office that requires an oath to support the Constitution. Therefore, he is eligible for disqualification under this provision.  

The only remaining question is whether he participated in an insurrection. The persons who framed Section 3 of the 14th Amendment regarded persons as participating in an insurrection if they incite, aid, or support an assemblage committed to preventing the implementation of federal law by force or violence. The Select Committee to Investigate the January 6th Attack on the United States Capitol provides an answer, detailing in its report “how Donald Trump, along with a handful of others, planned to defeat the transfer of Presidential power on January 6th.” The committee’s conclusion that Trump was a participant in an attempt to prevent the implementation of federal constitutional provisions and statutes governing presidential elections, an attempt that involved resistance to those federal laws by force and violence, combined with the framing understanding that the president is both an officer of the U.S. and an officer under the U.S. compel the conclusion that Donald Trump is constitutionally disqualified from seeking a second term as president of the United States. 

The only question that remains is whether—and how—that will happen.