The Colorado Supreme Court and Maine's Secretary of State have both declared that former President Donald Trump is disqualified from being on Republican primary ballots in 2024 because of his role in the events that led to the January 6, 2021 riot at the Capitol Building when the electoral votes from the 2020 presidential election were being counted. This is a hard question, which I have thought carefully about for months now and here is my final conclusion.

An early draft of Section 3 of the Fourteenth Amendment provided in effect that: "No person shall be President or Vice President, Senator or Representative, or elector of President of President and Vice President or hold any office, civil or military, under the United States, or under any State, or as a Member of any State Legislature, or as any executive or judicial officer who, having previously taken an oath 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.

The words "President or Vice President" were deliberately edited out of the final version of Section 3 of the Fourteenth Amendment. This, together with the disqualification of presidential electors and vice-presidential elector who have engaged in "insurrection or rebellion" makes it clear that the Framers' of Section 3 did not intend for it to apply to presidents or vice presidents who engaged in insurrection.

This impression is augmented by the fact that Section 3 methodically applies in order from the highest office to the lowest office. Section 3 first disqualifies insurrectionist Senators and then Representatives. It then disqualifies all appointed civil or military officers; it then disqualifies insurrectionists from serving as a member of any State legislature, and it finally disqualifies insurrectionists from serving as State executive or judicial officers. This careful hierarchy suggests that the phrase "or hold any office, civil or military, under the United States" does not apply to the President or Vice President, but applies only to appointed federal officers.

This fact is further confirmed by the Appointments Clause of Article II, Section 2, which says [The President shall nominate, and by and with the advice and consent of the Senate shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States." The President does not appoint himself so obviously he is not an Officer of the United States under the Appointments Clause.

Moreover, the Commission clause of Article II, Section 3 says that "[T he President] shall" i.e. must, "Commission all the Officers of the United States." No President has EVER commissioned himself or his Vice President either before or after the adoption of the Fourteenth Amendment. The President is obviously not an Officer of the United States for the purposes of the Commission clause.

Finally, Article II, Section 4 provides that: "The President, Vice President and all civil Officers of the United States" shall be liable for impeachment. Note here that the text does NOT say: "The President, Vice President, and all other civil Officers of the United States. Once again, Article II does not treat the President and Vice President as being merely civil officers. It instead treats them as stand-alone officers like the King of England or the Prince of Wales.

Just as Section 3 of the Fourteenth Amendment contains a hierarchy of officers, so too does Article II in the Appointments Clause, the Commission Clause, and the Impeachment Clause making it crystal clear that the President and Vice President are not civil officers of the United States.

They are sui generis like the King of England and the Prince of Wales.

Finally, consider that the oath taken, which must be broken to engage the Disqualifications Clause is an oath "to support the Constitution." This oath appears in Article VI, Section 3 of the Constitution and applies to Senators, Representatives, and all executive and judicial officers both of the United States and of the several States. The President, in contrast, takes a special oath "to the best of my ability," to "preserve, protect and defend the Constitution of the United States." The difference in the words of the presidential oath of office from the other specified in Article VI, Section 3 is additional powerful evidence that the President and Vice President are not covered by Section 3 of the Fourteenth Amendment.

The only evidence that the President is a civil officer of the United States is two-fold and is in both cases underwhelming to say the least. During the Senate floor debate on Section 3 a Senator objected that insurrectionist Presidents are not covered by the Disqualification Clause. Another Senator then said the President was covered because he was a civil officer of the United States. This is an embarrassingly thin reed for the proponents of presidential disqualification to grasp onto, since the Congress itself voted to strike the words president and vice president from Section 3 of the Fourteenth Amendment. It has been decades since the Supreme Court, under the leadership of Justice Scalia and Chief Justice Roberts started ignoring such floor colloquies, which are often staged for the benefit of the courts, in favor of the plain meaning of the legislative text.

The second and even weaker argument is that the presidency is described in Article II as being "an office" and therefore the President must be an officer. Many people hold offices under the Constitution and statutes of the United States. FBI agents for example hold an office and are officials, but they are not officers of the United States. If they were, Congress could put them in the line of succession to the presidency. It could also impeach them and the Senate could by a two-thirds vote remove them. By now we are getting to the land of the absurd! Officers of the United States and individuals who happen to hold an office are two very different kettle of fish.

I believe that I have conclusively proved that the President and Vice President are not covered by the Disqualification Clause. I turn next to whether the events of January 6, 2021 were an insurrection. No-one would contend they were a rebellion, which requires the use of armed paramilitary force to overturn the election.

Noah Webster's First Edition 1828 Dictionary of American English defines "insurrection" as follows:

INSURREC'TION, noun [Latin insurgo; in and surgo, to rise.]

1. A rising against civil or political authority; the open and active opposition of a number of persons to the execution of a law in a city or state. It is equivalent to sedition, except that sedition expresses a less extensive rising of citizens. It differs from rebellion, for the latter expresses a revolt, or an attempt to overthrow the government, to establish a different one or to place the country under another jurisdiction. It differs from mutiny, as it respects the civil or political government; whereas a mutiny is an open opposition to law in the army or navy. insurrection is however used with such latitude as to comprehend either sedition or rebellion.

It is found that this city of old time hath made insurrection against kings, and that rebellion and sedition have been made therein. Ezra 4:19.

Webster's defines a riot as follows:

RI'OT, noun

1. In a general sense, tumult; uproar; hence technically, in law, a riotous assembling of twelve persons or more, and not dispersing upon proclamation.

The definition of riot must depend on the laws. In Connecticut, the assembling of three persons or more, to do an unlawful act by violence against the person or property of another, and not dispersing upon proclamation, is declared to be a riot. In Massachusetts and New Hampshire, the number necessary to constitute a riot is twelve.

The events of January 6, 2021 occurred for three-and-one-half hours in one city only in the United States, Washington D.C., and not as an overall insurgency in multiple cities across the United States. The crowd was not carrying firearms and it dispersed when then President Trump asked for it to disperse. While the interruption of the counting of electoral votes is inexcusable as is the death that day of five persons and the injury of dozens of others, the fact of the matter is that the events of January 6, 2021 were more akin to a riot than they were to a systematic planned-out "insurrection or rebellion." Section 3 of the Fourteenth Amendment use the words "insurrection" or "rebellion as synonyms. The canon of construction of noscitur a sociis, a word derives its meaning from the company it keeps applies here. The kinds of "insurrections" described in Section 3 are akin to "rebellions" as the paradigm case of the onset of the Civil War makes clear. The events that occurred on or about January 6, 2021 were very, very bad, but they were not an insurrection or rebellion.

Moreover, President Trump understandingly himself believed that mail-in voting had led to widespread fraud and abuse, which had caused him to lose the 2020 presidential election notwithstanding the fact that he received more votes than Barack Obama had received in 2008. While this does not excuse what happened on or about January 6, 2021, it does mean that President Biden or his successor should pardon Trump for any crimes he may have committed during his tenure in office as was done with President Richard M. Nixon. President Trump has a committed base of followers, which amounts to 40% of the U.S. population. He is beating President Biden with 51% of the vote in some opinion polls. One cannot and should not jail a 77-year old former President of the United States under these circumstance. Accordingly, President Trump should be pardoned in the same broad way as was President Richard M. Nixon. I say this as a Nikki Haley supporter and not as a follower of former President Trump.

Nikki Haley recently downplayed the role of slavery in the actual starting of the Civil War.  Technically, she is absolutely right.  President Abraham Lincoln in his First Inaugural Address said that he would fight to keep the Union together, and that he would ban slavery in the western territories, but he pledged to forever protect slavery in the southern States that had it, and Lincoln even endorsed the infamous Corwin Amendment that would have forbade by constitutional amendment federal actions that would outlaw slavery altogether.  It is Chris Christie and Ron DeSantis who have gotten the history wrong in this particular campaign food fight.

Consider what Lincoln said when he took the oath of office on March 4, 1861:

"Apprehension seems to exist among the people of the Southern States that by the accession of a Republican Administration their property and their peace and personal security are to be endangered. There has never been any reasonable cause for such apprehension. Indeed, the most ample evidence to the contrary has all the while existed and been open to their inspection. It is found in nearly all the published speeches of him who now addresses you. I do but quote from one of those speeches when I declare that--

I have no purpose, directly or indirectly, to interfere with the institution of slavery in the States where it exists. I believe I have no lawful right to do so, and I have no inclination to do so.

Those who nominated and elected me did so with full knowledge that I had made this and many similar declarations and had never recanted them; and more than this, they placed in the platform for my acceptance, and as a law to themselves and to me, the clear and emphatic resolution which I now read:

Resolved, That the maintenance inviolate of the rights of the States, and especially the right of each State to order and control its own domestic institutions according to its own judgment exclusively, is essential to that balance of power on which the perfection and endurance of our political fabric depend; and we denounce the lawless invasion by armed force of the soil of any State or Territory, no matter what pretext, as among the gravest of crimes.

I now reiterate these sentiments, and in doing so I only press upon the public attention the most conclusive evidence of which the case is susceptible that the property, peace, and security of no section are to be in any wise endangered by the now incoming Administration. I add, too, that all the protection which, consistently with the Constitution and the laws, can be given will be cheerfully given to all the States when lawfully demanded, for whatever cause--as cheerfully to one section as to another."

For Lincoln, his first priority even ahead of abolishing slavery was avoiding disunion.  As a man from Illinois, he was acutely aware of the fact that all the Midwest's farm produce floated by barge down the Ohio, Missouri, and Mississippi River to New Orleans. If Louisiana seceded, the economy of the Union would be at her disposal. It was essential to prevent this result.

In pledging to outlaw slavery in the Western territories, Lincoln was girdling the tree of slavery in the southern states where it existed in 1861.  Such a strategy would end slavery in 100 years but not sooner.

In September 1862, the United Kingdom considered recognizing the independence of the Confederacy, exchanging ambassadors, and resuming trade and commerce with the South.  But, Lincoln knew that anti-slavery opinion was very strong in the U.K., so he announced in September 1862 that all three million slaves in areas still in rebellion against the Union as of January 1, 1863 would be emancipated by presidential executive order thus turning the Civil War from being a war about keeping the Union together into a war to free the enslaved people.  And, all four million enslaved people were freed when Lincoln helped steer the Thirteenth Amendment abolishing slavery to passage in Congress and after Lincoln's assassination in April 1865.  The U.K. DID, as Lincoln predicted it would, stay out of the Civil War once it became a war to free the slaves, which is undoubtedly what Lincoln hoped would happen.

Slavery was the root cause of the Civil War, but Nikki Haley is right that from March 4, 1861 to January 1, 1863, the Civil War was about keeping the Union together. Only after Emancipation did the Civil War became a fight to end enslavement in the United States.  And, at that point the U.S. was on the North's side of the fight.

I just gave some money to the Institute for Justice, a first-rate libertarian public interest law firm (and also the provider of the weekly Short Circuit posts on this blog, which are written by IJ's John Ross). I've long much admired IJ: I've litigated some First Amendment cases, but it's not that hard to win them, given how strong First Amendment protections generally are—IJ, on the other hand, has figured out ways of winning even economic liberties cases, where the degree of difficulty is much higher.

Here's IJ's little pitch, which I'm delighted to pass along, with my full endorsement:

Friends, please give us money. We will use it to sue the government, whether it is arresting a grandmother for criticizing the government; flooding a fourth-generation family farm without paying; secretly declaring that a perfectly pleasant neighborhood is a slum (so it can be seized via eminent domain); robbing innocent people's safe-deposit boxes (and then losing what they took); trespassing on rural property without a warrant, stealing a trail camera, and using it to spy on the owner's family; barring a nonprofit from providing free legal advice; and many, many other things. Help IJ protect the constitutional rights of all Americans with a secure online donation today at ij.org/donate.

By the way, if you do donate (or have donated in the past), please leave a comment below saying you did, so your fellow readers can see. (No obligation, of course, but I think it might be nice.)

Rob Natelson is one of my favorite originalist scholars. When he writes something new, I will read it. And I think very, very carefully before I disagree with him. His careful writing and meticulous research is well-regarded. Natelson's scholarship has been cited by Chief Justice Roberts, and Justices Scalia, Thomas, and Alito.

I was very pleased to see that Natelson published an op-ed on the Section 3 debate in the Epoch Times. And Natelson provides some support for the Tillman/Blackman position that the President is not an "Officer of the United States" for purposes of Section 3.

The Constitution of 1788 uses two distinct phrases: "Officers of the United States" and "Office under the United States." Natelson concludes, "substantial evidence . . . suggests" that the phrase Office under the United States "doesn't include elected offices, such as senators, representatives, the vice president, or the president."

I am grateful that Natelson offered praise for the work of my dear colleague, Seth Barrett Tillman:

Over a decade ago, Seth Barrett Tillman, an American legal scholar working in Ireland, noticed that the use of these "office" phrases isn't haphazard. He found patterns. These patterns appear both in the drafting process and in the finished Constitution. Mr. Tillman also identified other historical facts consistent with the patterns.

Since that time, Mr. Tillman has been joined by another legal scholar, Josh Blackman. Together, they have tried to reconstruct the meanings of all these words and phrases.

In 2014, I gave a lecture on my ACA book at Stanford. Judge Michael McConnell was kind enough to host me at his home for a lovely dinner. Will Baude, who was then a fellow at Stanford, attended. Over dinner, we were discussing some of the most important, and under-appreciated originalist scholars. Our discussion immediately turned to Professor Tillman in Ireland. Indeed, in 2016 Baude wrote that "Professor Tillman's theory makes sense of patterns that most of us never saw." Natelson, Baude, and I all recognized Tillman's gift: he sees what us moderns cannot. And Tillman saw all of this long before Trump came on the scene. His position has remained consistent for some time. I am grateful to have worked so closely with Seth for the past seven years or so.

Natelson explains that our position about "Officers of the United States" and "Office under the United States" is "back[ed] . . . up with a fair amount of proof." Natelson highlights six items.

First, the phrase "Office under the United States," Natelson writes, "was the obvious successor to the extremely common British term 'office under the Crown.'" And this phrase has for centuries refered only to appointed positions. Natelson observes that "[a]s former subjects of the British Empire, members of the founding generation had heard and used that expression all their lives." It may be that people today are unfamiliar with this phrase. But, Natelson reminds us, "We must never assume the Constitution's ratifiers didn't understand a legal phrase in a legal document as important, as closely examined, and as widely discussed as the Constitution." (Tillman and I discuss the phrase "Office under the Crown" in Part IV of our ten-part series.)

Second, Natelson focused on the Commissions Clause, which provides that president "shall Commission all the Officers of the United States." He observes that "commissioning yourself" would be "awkward." Natelson writes that "no one has ever seriously suggested that the president must commission himself or other elected officials." Well, that's not exactly right. More than a decade ago, Professor Sai Prakash suggested that the President should commission himself and that such commissions may exist. Prakash wrote, "That no physical evidence of such a commission exists, however, certainly does not prove that the President never issued one." I do not know if Prakash still holds that position. Professors Calabresi and Attorney General Mukasey have also cited the Commissions Clause as proof that the President is not an "Officer of the United States." Natelson likewise observes that "the president must not be an 'Officer of the United States.'" (Tillman and I discuss the Commissions Clause in Part III of our ten-part series.)

Third, Natelson points to the Impeachment Clause, which authorizes impeachment of "The President, Vice President and all civil Officers of the United States." He writes that "If the president and vice president were officers of the United States, there would be no need to list them separately." Again, this position is not new. Justice Story articulated this same textualist argument in his Commentaries.

Fourth, Natelson observes that "[t]he Constitution treats the oaths of the president and members of Congress separately from the oaths of 'Officers of the United States.'" The Article VI Oaths Clause provides oaths for "Officers of the United States." The President does not fall in the aegis of this language. This fact is supported by the fact that he has a separate oath provision in Article II. (This argument stands apart from whether an oath to "support" the Constitution is distinct from an oath to "protect and defend" the Constitution.)

Fifth, Natelson turns to the Foreign Emoluments Clause, which applies to those who hold an "Office . . . under the United States." Natelson, relying on Tillman's scholarship, remarks that "President George Washington accepted such gifts without any public objection," as did Thomas Jefferson. Natelson concludes that this history "suggests that the members of the founding generation didn't think of the president as an 'Office under the United States.'"

Sixth, Natelson points to the Hamilton document from 1791. He observed that "Hamilton's list included all appointed positions. It excluded all elected ones, including the presidency." We have said enough about the Hamilton document. And to our knowledge, no one has responded to our analysis. Natelson acknowledges that "the Tillman–Blackman evidence from the 1790s does have the virtue of being uncontradicted."

Next, Natelson turns to the Fourteenth Amendment. He observes that Section 3 uses the same phrases that are used in the Constitution of 1788: "Officers of the United States" and "Office under the United States." And he offers a rule of legal interpretation: "when an amendment uses a word or phrase from the original Constitution, we should presume that the amenders used the phrase the same way the original Constitution does." This approach should not be controversial. In Heller, Justice Scalia interpreted the phrase "keep and bear arms" in the Second Amendment by looking to "historical background," including similar provisions in the English Bill of Rights and the early state constitution. Applying this rule, Natelson writes, "suggests that 'office under the United States' in the 14th Amendment means the same thing as in the original Constitution." He adds, to his "there's no strong evidence to the contrary." Natelson concludes, "the president isn't an "officer under the United States" in the original Constitution, then he's not one in the 14th Amendment, either." And, Tillman and I have explained, in the Constitution of 1788 and Section 3, the phrase "Officers of the United States" does not include elected officials.

***

Natelson responds to the charge from the Colorado Supreme Court, and Professors Baude and Paulsen, that the Blackman/Tillman position amounts to a "secret code." Rather, Natelson explains, the Framers of the Constitution "were highly skilled legal drafters who knew what they were doing." The Constitution has "no 'secret' meanings—even if modern writers ignorant of 18th-century conditions might think it did."

In recent months, former-Attorney General Mukasey and Professor Steve Calabresi have advanced our position: that the President is not an "Officer of the United States." Now, Rob Natelson has joined the fray. There is no "secret code."