Richard Gardiner (Government of the Commonwealth of Virginia – Fairfax County Circuit Court) has posted two related papers on SSRN:
(1) The President Is Not an “Officer of the United States”; A Partial Response to Graber, Our Questions, Their Answers and to the Colorado Supreme Court (22 pages). Here is the abstract:
The use of the word “officer” in the original Constitution and in the legislative history of § 3 demonstrate that the President is not “an officer of the United States” within the meaning of § 3. In the original Constitution, the word “officer” is always used in contradistinction to the President, so that the President cannot be deemed an “an officer of the United States.” The same is true of the debates on § 3; senators and representatives understood that “officer” was distinguished from the President, so that the President was not “an officer of the United States.” Professor Graber’s conclusion and the Colorado Supreme Court’s construction of § 3 in Anderson v. Griswold, 2023 CO 63 (Dec. 19, 2023), as including a former President among those barred from federal office in the wake of the Civil War, are both textually and historically erroneous.
(2) The President Is Still Not an “Officer of the United States”; A Reply to Mark Graber’s Criticism of the Amicus Curiae Brief of the League of Sportsmen, Law Enforcement, and Defense (10 pages). Here is the abstract:
On January 17, 2024, the League of Sportsmen, Law Enforcement, and Defense filed an amicus curiae brief in the United States Supreme Court in Trump v. Anderson, et al, No. 23-719. That brief was based upon an analysis of the constitutional provisions concerning “officers” and the legislative history of Section 3 of the Fourteenth Amendment; the analysis was taken, with permission, from a then-soon-to-be published article that I had written and which is now available on the Social Science Research Network: The President Is Not An “Officer Of The United States”; A Partial Response To Graber, Our Questions, Their Answers And To The Colorado Supreme Court, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4702059. In my article, I significantly criticized much of Mark Graber’s research on the legislative history of Section 3 which he had published in Section Three of the Fourteenth Amendment: Our Questions, Their Answers (University of Maryland Legal Studies Research Paper No. 2023-16) https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4591133 and that criticism was adopted by the League’s amicus brief.
The next day, on the weblog Balkinization, Graber attempted to defend the significant criticisms of his article in the League’s brief. His defense calls out for a response. And, as it was essentially my article which was the focus of Graber’s defense, I am responding directly.
Thanks to Seth Barrett Tillman for the pointer.
COUNTERPOINT: At The Hill, James D. Zirin: If the conservative justices actually believe in originalism, they must disqualify Trump (relying heavily on the amicus brief filed by J. Michael Luttig in the Colorado disqualification litigation, and not really acknowledging that there is any difference of opinion among originalist scholars).
Posted at 6:27 AM