From the Colorado State District Court for Denver, Judge Sarah Wallace, in Anderson v. Griswold (footnotes and paragraph numbers omitted):
Intervenors argue that five constitutional provisions show that the President is not an “officer of the United States.”
• The Appointments Clause in Article II, Section 2, Clause 2 distinguishes between the President and officers of the United States. Specifically, 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, whose Appointments are not herein otherwise provided for, and which shall be established by Law.” U.S. CONST. art. II, § 2, cl. 2.
• The Impeachment Clause in Article II, Section 4 separates the President and Vice President from the category of “civil Officers of the United 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.” U.S. CONST. art. II, § 4.
• The Commissions Clause in Article II, Section 3 specifies that the President “shall Commission all the Officers of the United States.” U.S. CONST. art. II, § 3.
• In the Oath and Affirmation Clause of Article VI, Clause 3, the President is explicitly absent from the enumerated list of persons the clause requires to take an oath to support the Constitution. The list includes “[t]he 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.” US. CONST. art. VI, cl. 3.
• Article VI provides further support for distinguishing the President from “Officers of the United States” because the oath taken by the President under Article II, Section 1, Clause 8 is not the same as the oath prescribed for officers of the United States under Article VI, Clause 3.
The Court agrees with Intervenors that all five of those Constitutional provisions lead towards the same conclusion—that the drafters of the Section Three of the Fourteenth Amendment did not intend to include the President as “an officer of the United States.”
Here, after considering the arguments on both sides, the Court is persuaded that “officers of the United States” did not include the President of the United States. While the Court agrees that there are persuasive arguments on both sides, the Court holds that the absence of the President from the list of positions to which the Amendment applies combined with the fact that Section Three specifies that the disqualifying oath is one to “support” the Constitution whereas the Presidential oath is to “preserve, protect and defend” the Constitution, it appears to the Court that for whatever reason the drafters of Section Three did not intend to include a person who had only taken the Presidential Oath.
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As a result, the Court holds that Section Three of the Fourteenth Amendment does not apply to Trump.
The court also held that the presidency is not an "officer under the Constitution" for purposes of Section 3.
(Thanks to Josh Blackman at Volokh Conspiracy and Seth Barrett Tillman for the pointer, and congratulations to them as scholarly advocates of this position).
Two quick thoughts, not on the merits:
(1) I wish, in an analysis like this, that courts would not say things like "the drafters of Section Three did not intend to include …" It's an excellent textual analysis. It makes a good case as to the text's original meaning. It doesn't (and needn't) show anything about the drafters' intent.
But the court makes up for it with this footnote (footnote 20):
Whether this omission [of the President from Section 3] was intentional, or an oversight is not for this Court to decide. It may very well have been an oversight because to the Court’s knowledge Trump is the first President of the United States who had not previously taken an oath of office.
Agreed and well put. There are likely lots of oversights in the Constitution, as to details like this. Doesn't matter. The text means what it means, regardless of the drafters' intent.
(2) The court emphasizes the need for caution in the face of uncertainty:
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.
I've become increasingly inclined to this view as a general matter — that is, courts should not intervene on constitutional issues unless the Constitution's direction is reasonably clear. (Though, to be clear, I think it is reasonably clear more often than many people do.)
UPDATE: At Balkinization, Mark Graber has an extended response, beginning:
Researching whether the persons responsible for Section Three of the Fourteenth Amendment thought the president was an officer of the United States is a bit like researching whether George Washington had five fingers on his right hand. No one ever says so directly because the point is obvious. But when you do the research, you discover quotation after quotation in the last half of the 1860s that the president is an officer of the United States, quotation after quotation that Republicans thought Section Three of the Fourteenth Amendment covered all federal officers, and quotation after quotation that they did not distin[guish] between the various oaths covered by the Constitution. …
Posted at 12:51 AM