The Volokh Conspiracy
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Professor Steven Calabresi wrote a letter to editors of the Wall Street Journal. He now concludes that President Trump cannot be disqualified under Section 3. In particular, Calabresi changed his mind on a debate he had with Professor Seth Barrett Tillman in 2008. Calabresi now agrees with Tillman that the President is not an "Officer of the United States."
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.
Last month, Calabresi endorsed Baude and Paulsen's article, concluding that Section 3 does disqualify Trump. I appreciate that Calabresi took the time to correct the public record.
Calabresi is not the only person who was persuaded by Tillman. Last week, former Attorney General Michael Mukasey wrote an op-ed in the Wall Street Journal. He contended that the President is not an "Officer of the United States." Many of Mukasey's arguments track a 2021 article that Seth and I wrote in the NYU Journal of Law & Liberty. Long-time readers may remember that Tillman persuaded Mukasey on this issue back in 2015. (This issue also came up with the Mar-A-Lago raid.)
I am grateful that Calabresi and Mukasey came around to the Tillman position. It is not easy to admit one has made an error, and these two jurists did so graciously.
I was persuaded by Tillman nearly a decade ago. I still think the best description of Tillman's work was offered by Will Baude in 2016: "Professor Tillman's theory makes sense of patterns that most of us never saw. It brings order out of chaos." Indeed. And given the efforts to disqualify Trump, Tillman's view would in fact bring order out of the chaos.
If you haven't had a chance to review our new draft article, now is a good time. You too may change your mind! In particular, here is the summary of Part V, which focuses on the office issue:
Part V considers another threshold question: was Trump ever subject to Section 3? President Trump was unique among all of his predecessors in that he did not hold any prior government position before he took the presidential oath of office on January 20, 2017. Section 3 of the Fourteenth Amendment could only disqualify Trump if the presidential oath he took on that date was as an "Officer of the United States." In 2021 we published an article concluding "that the President is not a Section 3 'officer of the United States.'" In their article, Baude and Paulsen summarily dismiss our position. But Baude and Paulsen disregard substantial evidence about the meaning of the phrase "Officers of the United States" in the Constitution of 1788. And they disregard the fact that the debates they cite from the 1860s in support of their position look back to debates from the early Republic. Instead of parsing the Constitution of 1788 and early debates, Baude and Paulsen focus on original intentions and consequentialism. These sorts of arguments are weak evidence of original public meaning and do not pass originalist muster. More importantly, Baude and Paulsen offer no complete or comprehensive theory to explain what other positions are included and excluded by the phrase "Officer of the United States." Without ever explaining what Section 3's "officer of the United States"-language means, they only seek to establish that the President falls in that category. In short, Baude and Paulsen punched a textualist ticket good for one ride on the Trump train.
Calabresi and Mukasey are on board. Others may follow.