At Volokh Conspiracy, Steven Calabresi: Section 3 of the Fourteenth Amendment – Why an insurrectionist can run for and serve as President, but not as an Elector of the President. Key excerpts:
My initial view that Trump was covered by Section 3 of the Fourteenth Amendment was formed because I believed then, and do still now believe, that the events of January 6, 2021 were an "insurrection."
…
I changed my mind and concluded that Trump had a right to be on the ballot once former Attorney General Michael Mukasey pointed out in an excellent op-ed in the Wall Street Journal that Section 3 only disqualifies oath-breakers from being "a Senator or Representative in Congress or [an] elector of President and Vice President or [a holder of] any office, civil or military, under the United States," or "a member of any State legislature [or] an executive or judicial officer of any State." Oath-breakers are not disqualified from running for or even serving as President, so long as the presidential electors who elect the President are not oath-breakers. I also do not believe the President is an "Officer of the United States" because the Commissions Clause says that "[The President shall" i.e. must "commission all the Officers of the United States", and there is no practice, either before or after, the adoption of the Fourteenth Amendment of Presidents commissioning themselves. Indeed, the whole idea of that is absurd.
For all of these reasons, I concluded Section 3 of the Fourteenth Amendment does not require or allow Trump being kept off any presidential primary or general election ballots.
Two days ago, my friend Kurt Lash sent me a wonderful draft law review article, which establishes beyond a shadow of a doubt that originally the Framers of Section 3 had Presidential oath-breakers in the enumeration of people disqualified from holding office, but that that language was deliberately taken out of the final draft of Section 3 to appease conservatives and on the assumption that presidential oath-breakers being disqualified from being "electors of the President and Vice President" was sufficient protection against "insurrectionist Presidents". … [ed.: see here] [emphasis in original]
Note that in saying insurrectionists in general are not disqualified from the presidency, Professor Calabresi (and Professor Lash) are endorsing the argument made by David Weisberg on this blog that the presidency is not an "office under the United States" for purposes of Section 3. (A more complete presentation of Weisberg's argument is on SSRN here.) It's a separate argument (endorsed by Professors Blackman and Tillman as well as Judge Mukasey) that Trump uniquely is not disqualified from any office because he never took an oath as an "officer of the United States." See my earlier post here trying to clarify this distinction.
Posted at 6:11 AM