At Volokh Conspiracy, Samuel Bray: "Officer of the United States" in Context. From the introduction:
[I]t is surprising to me that the former President of the United States seems to be putting most of his legal eggs in one basket—the argument that the President is not an "officer of the United States." This is the lead argument in the brief available here. And for reasons I cannot understand—as a matter of legal principle—this argument is now being advanced by various conservative legal luminaries.
Three observations:
1. The textual arguments advanced in the brief are weak, but the fundamental problem is a lack of sophistication about the interplay between semantics and context. Here is an example from pages 23-24: "every time this phrase appears in the Appointments Clause, the Commissions Clause, and the Impeachment Clause it excludes the President and refers only to appointed and commissioned officers rather than elected officials." But it is not "this phrase" that excludes. In the Appointments Clause and the Commissions Clause, it is the context that makes clear that the President is not in view, because the President is not appointing or commissioning himself. It is not the semantic content of "officer of the United States."
By analogy, if I were to host a dinner for all of my colleagues at Notre Dame Law School, and I said "all law faculty are welcome, but none are obligated to be there," would I be saying that I, as the host, was not obligated to be there? Of course I would be obligated. Would I therefore be saying that I was not "law faculty"? No. My usage would not be advancing a narrow view of the semantic domain of "law faculty"; I would instead be using the phrase in a context that indicated that I was obviously excluded. …
RELATED: At New Reform Club, Seth Barrett Tillman answers a journalist's question. Here is the question:
"Another question comes to mind, and apologies if you’ve already answered it in writings I missed: If the president is not an officer under the U.S. for the purposes of the 14th amendment, wouldn’t that mean that he cannot be disqualified from future office even by impeachment and conviction? Article II refers to disqualification from ‘any office of honor, trust or profit under the United States.’ So a Supreme Court of the United States ruling that President is not an officer for 14th amendment purposes would also mean an impeached and convicted President cannot be disqualified from seeking another term?"
Answer at the link.
UPDATE: Ned Foley (Ohio State) has this thoughtful post on the Trump brief at Election Law Blog. (Vie How Appealing.)
FURTHER: At Balkinization, Mark Graber responds to an amicus brief that criticizes his view of the "officer" issue.
Posted at 6:47 AM