Trump Disqualification 2: Is the President an “Officer” of the United States?

A few days ago I started what is going to be a multi-post thread in which I propose to discuss whether Section 3 of the Fourteenth Amendment disqualifies Donald Trump from being reelected as President of the United States due to his actions with respect to the January 6, 2021, attack on the Capitol.

The first “element” as it were of the case for Trump’s disqualification is whether the President is an officer of the United States. This is important because the disqualification only applies to persons “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.” Donald Trump, so far as I understand his biography, has only been President, so unless the President is “an officer of the United States,” he is not subject to disqualification.

The Constitution uses the term “officer” twelve times:

  • Article I, §2, refers to the Speaker and other Officers of the House of Representatives;
  • Article I, §3, refers to the “other Officers” of Senate (besides the Vice President of the United States who is its President);
  • Article I, §8, mentions “Officer” twice; it refers to the Appointment of Officers of the Militia and, in the “Necessary and Proper” clause it mentions “Powers vested “Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof;”
  • Article II, §1, uses “Officer” twice when referring to who would exercise the powers and duties of the President in “the Case of Removal, Death, Resignation or Inability, both of the President and Vice President;”
  • Article II, §2, uses the term “Officer” three times: the President’s ability to require the written opinion “of the principal Officer in each of the executive Departments;” and the appointment of “Officers of the United States,” either “by and with the Advice and Consent of the Senate” or (for inferior Officers as authorized by Law by “the President alone, in the Courts of Law, or in the Heads of Departments.;”
  • Article II, §3, provides that the President “shall Commission all the Officers of the United States;”
  • Article II, §4, renders liable to removal upon Impeachment and Conviction the ” President, Vice President and all [not “all other”] civil Officers of the United States;” and, finally,
  • Article VI requires an oath to “support” the Constitution be taken by “Senators and Representatives . . ., and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States.”

I submit that there is nothing in this language describes the President as an Officer and several provisions which suggest that he is not: neither he nor the Vice President is commissioned, the impeachment provision does not refer to “other” officers and the wording of the oath of office of the President (but not the Vice President) is specifically provided elsewhere.

The petition is Anderson v. Griswold, the case before a Colorado state court that seeks the declaration of disqualification, relies upon the position that because the presidency is an “Office,”1 its holder must be an “Officer.” and an attorney general’s opinion contemporaneous with the adoption of the Fourteenth Amendment.

I will acknowledge that it at least seems counter-intuitive that a local dogcatcher who swore an oath (will little ceremony) to support the Constitution could be disqualified but the President is not. While I doubt that there was a policy reason for the difference, it may have been overlooked because Franklin Pierce, the only former President who took the side of the Confederacy, was already dead.2

At this point I am not convinced that Trump’s having taken an oath as President satisfies the first element as I have defined it. It will be interesting to see what other arguments are made, but I hope the desired end of disqualification does not lead to an unjustified conclusion on this point.

Jay Bohn

September 11, 2023

  1. I’m not going to go through all the times that the Constitution uses the term “Office,” some exclusively referring to the Presidency, but I do agree that the Presidency is an “Office” of the United States, so any person who is disqualified cannot be President. ↩︎
  2. While I do not think that Section 3 is limited to the Civil War, it was certainly written with that in mind. ↩︎