In the Wall Street Journal, Michael Mukasey (former Attorney General and U.S. District Judge): Was Trump ‘an Officer of the United States’? – A careful look at the 14th Amendment’s Insurrection Clause shows that it doesn’t apply to him. From the introduction:
A good deal of attention has focused thus far on whether the attack on the Capitol on Jan. 6, 2021, was an “insurrection or rebellion” and, if so, whether Mr. Trump “engaged” in it. Those questions, however, need not be answered until two preliminary questions of law are addressed: Is the presidency an “office . . . under the United States,” and was the presidential oath Mr. Trump swore on Jan. 20, 2016, to support the Constitution taken “as an officer of the United States”?
The latter question is easier. The use of the term “officer of the United States” in other constitutional provisions shows that it refers only to appointed officials, not to elected ones. In U.S. v. Mouat (1888), the Supreme Court ruled that “unless a person in the service of the government . . . holds his place by virtue of an appointment . . ., he is not, strictly speaking, an officer of the United States.” Chief Justice John Roberts reiterated the point in Free Enterprise Fund v. Public Company Accounting Oversight Board (2010): “The people do not vote for the ‘Officers of the United States.’ ”
Article VI of the Constitution provides that senators and representatives “and all executive and judicial Officers . . . of the United States” take an oath to support the Constitution. But the presidential oath is separately provided for at the end of Article II, Section 1, which would be superfluous if the president’s oath were required by the general language in Article VI. Mr. Trump took an oath as president pursuant to Article II, not as an officer pursuant to Article VI. Because the Insurrection Clause applies only to those who have taken an oath “as an officer of the United States,” he can’t be barred by that clause from serving in any capacity.
Also in the Journal, from co-blogger David Weisberg: Robert E. Lee Could Have Been President - Lawmakers had a good reason to exclude the highest office from the Insurrection Clause (based on his post here on the Originalism Blog). From the introduction:
Some of Donald Trump’s opponents are seeking to bar him from the presidential ballot in 2024 under the Insurrection Clause, Section 3 of the 14th Amendment, which provides: “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, . . . who, having previously taken an oath . . ., to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”
But why would the legislators who drafted this amendment allow an erstwhile insurrectionist to become president? Surely they didn’t want a President Robert E. Lee.
There wasn’t much danger of that because elections for president and vice president are national in scope. Electors are chosen in individual states, but the president and vice president are elected only after the votes of electors from every state are tallied together. In contrast, the federal positions specifically listed in the Insurrection Clause—senator, representative, elector—all entail elections limited to individual states.
UPDATE: Via a letter to the Wall Street Journal, Steven Calabresi says he's changed his mind:
Former U.S. Attorney General Michael Mukasey’s op-ed “Was Trump ‘an Officer of the United States’?” (Sept. 8) has caused me to change my mind about an argument that I have had with Prof. Seth Barrett Tillman for 25 years. Mr. Mukasey is right: Looked at in the context of the Disqualification Clause of the 14th Amendment, the president is neither an “officer of the United States,” nor, obviously, a “member of Congress.” That must be why the Constitution prescribes a separate oath for the president.
As a result, former President Donald Trump isn’t covered by the Disqualification Clause, and he is eligible to be on the ballot in the 2024 presidential election. I am correcting the public record on this important issue by sending you this letter.
Impressive. It's hard to change one's mind after taking a public position, especially on such an important issue. But scholars should always be open to it.
Posted at 6:02 AM