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The Fourteenth Amendment Does Not Automatically Prevent Trump's Re-election

Enemies of Trump's re-election to the presidency have recently been focusing on this clause of the 14th Amendment, section 3: “No person shall … hold any office, civil or military, under the United States, who having previously taken an oath, … , as an officer of the United States, …, 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.”  They suggest it per se disqualifies Trump from the presidency such as proving if he were under age. Wrong. They need to parse and understand the words, and then apply standard legal analysis that applies in settings where you don't personally hate the possible success of the subject matter.

The provision at issue:

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, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, 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 Congress may by a vote of two-thirds of each House, remove such disability.

I too am an enemy of Trump's re-election, but I am a friend of the Constitution, and I refuse to let people misrepresent or misstate the fundamental law to prevent the installation in the White House of a dangerous autocrat.

Yes, yes, Professor Tribe and Judge Luttig strongly assert that the above provision automatically disqualify Trump from re-election, without procedures or construction.  Unlike professors who had a bevy of eager law students to do their research, and appellate judges who have hordes of attorney-law clerks and interns to do their research, I have always done my own research, for 40 years of practice and for 10 or so years before that out of fascination.  Indeed, I had to interrupt my serious study of the Constitution to attend law school, and then there was not much heavy and serious constitutional law for criminal law practice.

Professors Blackman and Tillman, juristic equals [at least] of Professor Tribe and Judge Luttig, whose work and research is current, has written clearly and authoritatively, and I could do nothing more informative than to quote their insightful position:

"There is a recent Supreme Court opinion discussing the scope of the Constitution's "Officers of the United States"-language. In Free Enter. Fund v. Pub. Co. Accounting Oversight Bd(2010), Chief Justice Roberts observed that "[t]he people do not vote for the 'Officers of the United States.'" Rather, "officers of the United States" are appointed exclusively pursuant to Article II, Section 2 procedures. It follows that the President, who is an elected official, is not an "officer of the United States."


"Moreover, there is [more]good authority to reject the position that Section 3's "officer of the United States"-language extends to the presidency. In United States v. Mouat (1888), Justice Samuel Miller interpreted a statute that used the phrase "officers of the United States." He wrote, "[u]nless a person in the service of the government, therefore, holds his place by virtue of an appointment by the president, or of one of the courts of justice or heads of departments authorized by law to make such an appointment, he is not strictly speaking, an officer of the United States." Justice Miller's opinion, drafted two decades after the Fourteenth Amendment's ratification, is some probative evidence of the original public meaning of Section 3's "officer of the United States"-language. Miller's opinion is some evidence rebutting any presumption of post-1788 linguistic drift with respect to the phrase "officer of the United States." Likewise Mouat rebuts the position that, circa 1868, the obvious, plain, or clear meaning of the phrase "officer of the United States" extended to the presidency.

"The Executive Branch has long relied on Justice Miller's discussion of "officers of the United States" in Mouat. In 1943, Attorney General Francis Biddle cited Miller's opinion, and explained that "under the Constitution of the United States, all its officers were appointed by the President . . . or heads of departments or the courts of law." (emphases added). Biddle's reading of Mouat did not distinguish "officers of the United States" as used in a statute from "officers of the United States" as used in the Constitution. In 2007, the Office of Legal Counsel reaffirmed this position. The Executive Branch has long taken the position that the phrase "officers of the United States" does not extend beyond persons appointed pursuant to Article II, Section 2 procedures. A memorandum by the Biden Administration's OLC or an argument by House managers that the President is an "officer of the United States" would be in tension with prior DOJ memoranda.


"During the 1876 impeachment trial of William Belknap, Senator Newton Booth from California observed, "the President is not an officer of the United States." Instead, Booth argued, the President is "part of the Government." And David McKnight's 1878 treatise on the American electoral system reached a similar conclusion. McKnight wrote that "[i]t is obvious that . . . the President is not regarded as 'an officer of, or under, the United States,' but as one branch of 'the Government.'" These sources tend to rebut any argument in favor of post-1788 linguistic drift with respect to the phrase "officer of the United States." Likewise, these sources provide some evidence that in the period following the Civil War the phrase "officer of the United States" did not extend to elected positions, including the presidency.


"It is not enough for the proponents of Section 3 disqualification against President Trump to argue that their textual position is conceivable. We do not doubt that it is conceivable. Rather, proponents of a Section 3 disqualification must offer evidence that establishes their view as the better view. To date, the proponents of Section 3 disqualification have not met this burden."

Excerpted from the Volokh Conspiracy, 1/20/21, Josh Blackman and Seth Barrett Tillman, reprinted in Reason Magazine

Josh Blackman and Seth Tillman have expanded that dispositive brief with a more in-depth, and irrefutable, piece, Sweeping and Forcing the President into Section 3, 28 Trx.Rev.L. & Pol. [forthcoming in 2024].

The point being that there is considerable authority for the notion that a necessary, pivotal feature of the proposed “exclusion clause” does not apply to Trump, so the burden is on the excluders to show that the provision supports their proposed action. That is a basic proposition of law that one would hope a retired federal appellate judge and a constitutional law professor emeritus would know. I certainly do.

"But wait, Kennedy, Tribe and Luttig and other 'exclusionists' have many thousands of supporters/likes on X [formerly known as Twitter], and you have less than 2,000: how can you compete with their views or claim to be more constitutionally correct?" Marjorie Tailor Greene and Tucker Carlson and other MAGA cultists have far more supporters than those two and than me; does that make them more competent constitutional commentators than less "appreciated" people? Of course not. Mob appreciation does not define correctness nor insight.

"Well, why do you think your reading of the fundamental law is more accurate than that of supposed titans of the law?" An inconvenient truth about constitutional or general legal understandings is that active law professors have hordes of eager, gifted law students to do their research and writing, and active appellate judges have a gaggle of gifted law clerks, interns, and externs to do theirs. When they are no longer in those supported posts, they are left to their own devices and to flex intellectual muscles that were not part of their previous works. We see that reality also with high-profile U.S. Attorneys, whose legal work is generally performed by gifted AUSAs and externs and interns, whose work product the political office head then takes undeserved credit for.

My scholarship is based on the studies and work I have personally done for 40+ years of law practice and on intense constitutional study for a decade before that. But one need not be a legal scholar to understand this: just read the section itself and disregard all of the tripe about "any person," etc.

The law is clear here and does not need too much intensive research; it only needs to be subjected to the necessary question of what authority supports the necessary notion that "officer of the United States" applies to the President, and it needs to be studied by people not fixated on their hatred of the object of that research. There is no such authority; the authority is to the contrary. Note that Article II, section 4, provides that "The President, Vice President and all civil Officers of the United States [impeachment considerations]....," it does not read "and all other civil Officers of the United States...." That is because "officer of the United States" does not include the President nor Vice President.  I am disgusted by result-oriented sorts, some with enormous cred in the past which is questionable now, who allow the quote to suggest that the "any person" applies to the office-holder who swore and violated - read it carefully, and parse the words, and understand what was prohibited, or snap shut your piehole and keyboard. The person swearing and violating must be of the specific, named categories, or an "officer of the United States." None of those apply to a POTUS.

The question all thinkers, supposed scholars, state secretaries of state, and then SCOTUS must ask is "what authority provides that 'officer of the United States' applies to the President?"

This issue revolves itself more around grammar and diction than around pure constitutional law.

Faithful textualists will study ..., well, the text, and will note that since the president is not one of the focused-upon categories, then "officer of the United States" has to apply to a POTUS or there is no exclusion from the ballot. As noted above, the authority is to the contrary.

So, let's not tinker with constitutional provisions to achieve a desired end contrary to the language of the provision; that would be a Trumpian methodology.

Michael Kennedy

Admitted to Bar, State of California, 1981 Education: Widener University, Chester, Pennsylvania (B.A., 1970) Southwestern University School of Law, Los Angeles, California (J.D., Scale, 1981) Harvard Law School, Program of Instruction for Lawyers, Cambridge, 1987


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