At Volokh Conspriacy, Steven Calabresi (Northwestern) expands on the analysis that led to his Wall Street Journal letter regarding the President and Section 3 of the Fourteenth Amendment: Donald Trump Should be on the Ballot and Should Lose. From the introduction:
In a prior blog post, I argued that Donald Trump should be kept off the ballot for the 2024 presidential election because of the Insurrection Clause of Section 3 of the Fourteenth Amendment. I have now changed my mind and have concluded that since Trump was not "an officer of the United States" on January 6, 2021, the Insurrection Clause does not apply to Trump.
I am also much more doubtful than I was a week ago of the correctness of the University of Pennsylvania Law Review law review article by William Baude and Michael Paulsen, The Sweep and Force of Section Three, which argues that former President Trump is disqualified from running again for President. A draft law review article taking issue with Baude and Paulsen, co-written by Josh Blackman and Seth Barrett Tilman, entitled Sweeping and Forcing the President into Section 3: A Response to William Baude and Michael Stokes Paulsen makes a good case that what happened on January 6, 2021 was not an "insurrection" and that the Baude/Paulsen reading of Section 3 of the Fourteenth Amendment is wrong. I think Josh Blackman and Seth Tillman are more likely right than not. At a minimum, this is a very muddled area of constitutional law, and it would set a bad precedent for American politics to not list a former president's name on election ballots given the confused state of the law surrounding Section 3 of the Fourteenth Amendment.
Ilya Somin responds here: Why President Trump is an "Officer" who Can be Disqualified From Holding Public Office Under Section 3 of the 14th Amendment [Updated]. From the introduction:
Advocates of the claim that Trump is exempt from Section 3 don't deny that the presidency is an "office." They can't because the Constitution refers to it as such multiple times! Rather, they claim it is not an office "of the United States." [Ed.: technically, as I understand it, the claim is that the President is not an "officer of the United States" and, separately, that the presidency is not an "office under the United States".]
While these critics have impressive credentials, their argument is badly flawed. It has no basis in the original meaning of Section 3, and it leads to absurd conclusions.
The absurdity is clear. If the presidency is not covered by Section 3, that means a president who engaged in insurrection or aided the "enemies of the United States" is not disqualified from future office-holding even though almost any other federal official who did the same thing would be. Surely an insurrectionist who held the highest office in the land is much more of a menace to the republic than one who was merely a low-level federal bureaucrat. It makes no sense to disqualify the latter, but not the former. Indeed, it might be more logical to penalize insurrectionists who held high office more severely than those who held lower ones.
Similar absurdity arises if we apply this theory to the Impeachment Clause of Article I, which states that "Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States" (emphasis added). As Blackman and Tillman have previously argued, their theory leads to the conclusion that the Senate can bar an impeached and convicted office-holder from lower federal executive offices, but not the presidency. Again, this is absurd. If such a person cannot be safely trusted to be a low-level bureaucrat, he surely cannot be trusted with the vastly greater power of the presidency.
RELATED: At Prawfsblawg, Gerard Magliocca (who was making himself an expert on Section 3 long before everyone else was) recommends John Vlahoplus' article Insurrection, Disqualification, and the Presidency on this issue. I agree (see here), and I'd add that David Weisberg makes some important points on the other side here (and here).
FURTHER THOUGHTS: I find the officer/office debate an interesting one, but I will be very surprised if the Supreme Court resolves the matter on that ground. For what it's worth, I think the claim that Section 3 is non-self-executing (which I disagree with) and the claim that January 6th was not an "insurrection or rebellion" within the meaning of Section 3 (or at least that that issue is a political question) are much more likely candidates for institutional reasons.
UPDATE: At Balkinization, Mark Graber has some (strong) thoughts: Section Three "Of" and "Under" Nonsense: The Sequel. With this strong claim, which seems important if true:
No evidence exists that any member of Congress, member of a state legislature, political activist, journalist, or hopeless crank during the 1860s thought a president was not an officer of the United States …
Posted at 6:01 AM