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Help Wanted: Constitutional Grammarian

An initial judgement was issued in the Colorado lawsuit attempting to prevent Donald Trump from appearing on the state's upcoming ballots as a consequence of his actions involving January 6, 2021. Though the judge's opinion stated that Trump's actions clearly constituted an insurrection, the judge ruled the 14th Amendment's language could not support an interpretation that it banned a candidate for PRESIDENT from appearing on a ballot to win the office of the Presidency.

You can read the entire ruling located here:

https://www.courts.state.co.us/userfiles/file/Cour...

The full ruling is highly recommended reading and the judge's opinion references a litany of arguments made by Trump's attorneys which are simply astounding from a legal and political perspective. Other aspects of the judge's opinion concisely summarize the interactions between state election law, obligations of the Secretary of State in following to election laws and how those state processes intertwine with federal law. The combination of arguments from the Trump team and the clear summary of the legal and administrative processes cited by the judge make the judge's ultimate decision even harder to comprehend.

When reading the ruling or this analysis of it, it's important to remember the actors in the case:


* petitioners – six citizens of Colorado filing a motion in Colorado State court to have Trump's name removed from Republican primary ballots as ineligible under the Fourteenth Amendment – it's worth noting, four of the six petitioners were register Republicans, the other two were independent voters
* respondent – Jena Griswold, the Secretary of State for Colorado, responsible for enforcing election laws in the state – it's worth noting, she maintained a neutral position throughout this case, saying legitimate issues needed adjudication but that she could not act without a court ruling
* intervenors – Trump's legal team and the Colorado State Republican Central Committee, who both sought to file motions to dismiss the suit by the petitioners


January 6 Committee Findings as Hearsay?

Trump's lawyers objected to the introduction of the Congressional report on January 6 under grounds of hearsay. The judge rejected that argument, citing prior precedent in Colorado and federal law and quoting from those cases: "Hence, the party challenging the admissibility of a public or agency report … bears the burden of demonstrating that the report is not trustworthy."

The judge itemized four factors in a prior ruling Berry that must be weighed in a decision to reject such reports – 1) timeliness, 2) bias, 3) expertise and 4) motivation – then stated the January 6 report sails over the first three and that Trump's lawyers failed to demonstrate signs of any issues triggering test #4, particularly given the fact that the contents of the final report were approve unanimously by the entire committee.

That portion of the ruling ends with this statement:

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Furthermore, while Trump spent much time contesting potential biases of the Committee members and their staff, he spent almost no time attacking the credibility of the Committee’s findings themselves. The Hearing provided Trump with an opportunity to subject these findings to the adversarial process, and he chose not to do so, despite frequent complaints that the Committee investigation was not subject to such a process.6 Because Trump was unable to provide the Court with any credible evidence which would discredit the factual findings of the January 6th Report, the Court has difficulty understanding the argument that it should not consider its findings which are admissible under C.R.E. 803(8).
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The Findings of Fact section of the ruling (a lengthy portion), included this:

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145. In the context of the speech as a whole, as well as the broader context of Trump’s efforts to inflame his supporters through outright lies of voter fraud in the weeks leading up to January 6, 2021 and his long-standing pattern of encouraging political violence among his supporters, the Court finds that the call to “fight” and “fight like hell” was intended as, and was understood by a portion of the crowd as, a call to arms. The Court further finds, based on the testimony and documentary evidence presented, that Trump’s conduct and words were the factual cause of, and a substantial contributing factor to, the January 6, 2021 attack on the United States Capitol.
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The Conclusions of Law section begins with this statement:

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209. The Court previously held that pursuant C.R.S. § 1-4-1204(4) the burden of proof in this matter is preponderance of the evidence. That is the burden the Court has applied. However, the Court holds that the Petitioners have met the higher standard of clear and convincing evidence.
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In other words, in this matter of civil law, the case presented by the "Petitioners" suing to block Trump's appearance on the ballot didn't just meet the minimum "preponderance" threshold of evidence but a higher level of confidence – "clear and convincing." It isn't exactly clear how this logic regarding use of a "public or agency report" might apply in the criminal cases also tied to January 6. Those standards may differ. However, it is an interesting first peek into how that collection of facts is interpreted by a judge with more than a year's experience.


Define the Word "Insurrection"

The text goes on to examine the factual evidence of Trump's participation in an insurrection. The findings start by contrasting two definitions of the term insurrection. One was taken from the 1828 edition of Noah Webster's dictionary, a definitive reference of the era when the Fourteenth Amendment was crafted. The other definition was submitted in motions filed by Trump's attorneys.

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238. Intervenors have offered an alternate definition of insurrection as “the taking up of arms and preparing to wage war upon the United States.”

239. However, in the context of Section Three, and in accordance with the historical understanding, the Court finds that such insurrection must be “against” the “Constitution of the United States” and not against “the United States” as the Intervenors would suggest.

240. Considering the above, and the arguments made at the Hearing and in the Parties’ proposed findings of fact and conclusions of law, the Court holds that an insurrection as used in Section Three of the Fourteenth Amendment is (1) a public use of force or threat of force (2) by a group of people (3) to hinder or prevent execution of the Constitution of the United States.

241. The Court further concludes that the events on and around January 6, 2021, easily satisfy this definition of “insurrection.”
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Stop for a second and re-read that text. CAREFULLY.

Trump's attorneys presented an argument IN COURT attempting to escape consequences under laws related to insurrection by somehow softening the definition of the word itself from an attack upon the The United States Constitution to merely an attack upon The United States. They weren't arguing about the cause and effect relationship between his conduct and the events of January 6, only that those effects weren't actions against the Constitution / existence of the government itself, only against elected officials and police working in service of that Constitution attempting to fulfill one of its core obligations.


Incitement Versus Engagement

Besides arguing about the definition of insurrection and any intended target of such actions, the Trump lawyers further argued about the definition of incitement versus engagement. The applicable section of the 14th Amendment reads:

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Section 3 Disqualification from Holding Office

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.
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The definition of "engaged" thus becomes crucial. Again, quoting from the opinion,

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247. Trump’s primary argument that incitement fails to meet the constitutional standard of “engagement” stems from the Second Confiscation Act, passed in 1862. The Second Confiscation Act, among other things, made it a crime for any person to “incite, set on foot, assist, or engage in any rebellion or insurrection against the authority of the United States, or the laws thereof, or shall give aid or comfort thereto, or shall engage in, or give aid and comfort to, any such existing rebellion or insurrection.” 12 Stat. 589, 590.

248. The argument, generally, is that the Second Confiscation Act distinguished between “incitement” and “engagement” by virtue of listing them separately, thereby suggesting that they were understood to be separate activities. Further, he argues, as Section Three of the Fourteenth Amendment was patterned, in part, on the Second Confiscation Act, and based disqualification on “engagement,” and not “incitement” or “setting on foot,” Congress did not intend to disqualify those who merely incited insurrection or rebellion. Lastly, Trump argues that certain cases in Congress in 1870 suggest that the Congressional understanding of Section Three did not include incitement as engagement.
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So in this context, Trump's lawyers are not arguing that he didn't INCITE the riot on the capital. They are arguing he didn't ENGAGE in the riot and therefore the insurrection clause doesn't apply and he should be able to appear on the ballot. That's the actual linguistic jujitsu his lawyers were attempting here. The immediate legal peril involves the word "engage"? Okay, we'll cop to incitement but make an argument that "incitement" isn't "engagement" and voilia! We're off the hook. (Never mind pending criminal litigation in two other venues...)

The judge considered these competing arguments and, while determining examples provided by the petitioners (those trying to block Trump's appearance on the ballot) were not conclusive as to contemporary understanding by Congress of the term "engagement", ruled (correctly) that in this context, incitement IS a component of engagement and that Congress did NOT intend to deliberately exclude "incitement" by the language in the amendment not explicitly listing it.


The Office of President

The judge ultimately ruled the Secretary of State cannot exclude Trump from ballots for two core reasons. First,

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216. However, in the Court’s view there is a difference between the Secretary having the authority to prohibit a candidate from being put on the ballot based on what Ms. Rudy described as “an objective, knowable fact” and prohibiting a candidate from being put on the ballot due to potential constitutional infirmity that has yet to be determined by either a Court or Congress. The Court holds that the Secretary cannot, on her own accord, keep a candidate from appearing on the ballot based on a constitutional infirmity unless that constitutional infirmity is “an objective, knowable fact.” Here, whether Trump is disqualified under Section Three of the Fourteenth Amendment is not “an objective, knowable fact.”
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The judge continues by stating that under state law, the Secretary of State alone cannot exclude a name from a ballot for compliance with state election law but requires a court ruling to support any such exclusion and that state law grants the state court that authority.

The core of the judge's opinion came down to a decision about whether the Fourteenth Amendment applies to the office of President and whether it can be stated that Trump as a matter of fact has violated the terms of the Fourteenth Amendment. The judge cited testimony from a history professor who in turn cited actual debate in Congress as the amendment was being drafted in which Senators explicitly stated the intent that the Presidency was an "office" under the terms of the amendment. The judge then writes:

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301. The Court holds there is scant direct evidence regarding whether the Presidency is one of the positions subject to disqualification. The disqualified offices enumerated are presented in descending order starting with the highest levels of the federal government and descending downwards. It starts with “Senator or Representatives in Congress,” then lists “electors of President and Vice President,” and then ends with the catchall phrase of “any office, civil or military, under the United States, or under any State.” U.S. CONST. amend. XIV, § 3.

302. To lump the Presidency in with any other civil or military office is odd indeed and very troubling to the Court because as Intervenors point out, Section Three explicitly lists all federal elected positions except the President and Vice President. Under traditional rules of statutory construction, when a list includes specific positions but then fails to include others, courts assume the exclusion was intentional. Dep’t of Homeland Sec. v. MacLean, 574 U.S. 383, 391 (2015) (finding that Congress intended to exclude rules or regulations when it included only the word “law” versus elsewhere where it used the phrase “laws, rule or regulation”).
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The opinion then ends with this:

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314. To be clear, part of the Court’s decision is its reluctance to embrace an interpretation which would disqualify a presidential candidate without a clear, unmistakable indication that such is the intent of Section Three. As Attorney General Stanbery again noted when construing the Reconstruction Acts, “those who are expressly brought within its operation cannot be saved from its operation. Where, from the generality of terms of description, or for any other reason, a reasonable doubt arises, that doubt is to be resolved against the operation of the law and in favor of the voter.” The Reconstruction Acts, 12 U.S. Op. Att’y Gen. 141, 160 (1867) (emphasis added). 21 Here, the record demonstrates an appreciable amount of tension between the competing interpretations, and a lack of definitive guidance in the text or historical sources.

315. As a result, the Court holds that Section Three of the Fourteenth Amendment does not apply to Trump.
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The logic as summarized by the judge is that the language involved with these statutes must be interpreted such that when language ELIMINATES rights or imposes penalties, terms of that language must be interpreted as NARROWLY as possible. When the generality of language raises doubt about meaning or intent, that language must be interpreted in a way which (essentially) gives the benefit of the doubt and AVOIDS eliminating a right or imposing a penalty.

The final result of the opinion is – frankly – bizarre.

The judge held that evidence compiled by the January 6 committee and submitted in this case makes clear Trump "engaged" in an insurrection.

The judge confirmed the opinion of the Secretary of State that the Secretary of State cannot ALONE exclude a candidate from a ballot due to a perceived failure of qualifications but must obtain a ruling from a court to impose an exclusion from a ballot.

The judge held that Trump's argument that he may have only merely "incited" the insurrection but did not actively "engage" in insurrection was flawed and that "incitement" was a form of "engagement."

The judge then held that no reliable evidence can be found that the original language and intent of the Fourteenth Amendment was to include the office of President in the scope of applicable positions subjected to the restriction. This essentially argues that the original backers explicitly EXCLUDED the Presidency as an "office" despite using the term "any office".

At the same time, the opinion says Trump has not been literally found to have a "constitutional defect" in his eligibility because he hasn't actually been convicted in a court of insurrection. It seems clear those that drafted the Fourteenth Amendment did not expect every member of the Confederacy Army and those who supported the Confederacy to be officially convicted of a crime to put something on the record. Yet the amendment explicitly bans ANY such personnel from holding ANY office at the federal or state level. It clearly relied upon a process by which local election officials would establish a due process for adjudicating such claims but says nothing about requiring conviction. It's almost like the language assumed there was honor among Civil War veterans and few would make the attempt in the first place. Yet in this case, the judge explicitly agrees with a Congressional Committee that found widespread evidence of "engagement" and "incitement" of insurrectionist activity by Trump. He's not "convicted" but the acts and evidence should speak for themselves. Yet, for the office of President, the "benefit of the doubt" is given to the "potential defective candidate" rather than the public's right to keep enemies of the Constitution AWAY from the Constitution.


Constitutional Grammarian Office

Virtually any recent court opinion at any level regarding nearly any contentious issue involving economics and civil rights seems to hinge upon these types of seemingly bizarre, abstract, existential, navel-gazing questions:

* Does incitement of a riot count as engagement?
* Is the "office" of President an "office" of government or an "executive office"?
* Is the President an "officer" of the United States government or an "executive officer"?
* In poorly written language, does a perceived descending priority of explicitly listed nouns take precedence over a final clause that says "any nouns"?
* Did the authors of a specific sentence in a statute or constitutional amendment explicitly incorporate or exclude the use of an "Oxford comma" when itemizing applicable targets or penalties of a statement that can alter the interpretation of said language?

Such debates are created by multiple processes, all contributing to varying degrees:

* Evolution of language itself, as possibly archaic terminology gets remapped to current circumstances without amending underlying laws to reflect current vocabulary.
* Changes in legal / social norms that adapt old language to new interpretations of reality without formally attempting to update the language involved for a clear one-to-one mapping.
* Purposeful distortion of previously well-understood, consistently interpreted language by partisan organizations to achieve aims not possible by passing new legislation.
* Sloppy language written with intentional ambiguity to facilitate passage into law ("if people knew what I really meant, it wouldn't pass…")
* Sloppy language written in ignorance of basic logic, grammar and English by Representatives and Senators (and their hidden lobbyist minions) made worse by the unique exposition style within the legal profession.

While Americans often hear references to people "running for elected office", it seems far less common to here references to the "office of Senator" or "office of Representative." Ask most Americans about the "Oath of Office" and they will picture a ceremony swearing in a President. The Constitution itself refers to the Presidency as an "Office", not an executive office. Any attempt to interpret special exclusions from laws because of the "unique" nature of the Presidency are supporting the concept of a unitary executive that grants far more power to a single person than ANY of the founding fathers could have imagined or ever approved.

Given the importance of these amazingly subtle (or maddingly distorted) interpretations of language, going forward, it seems Congress needs to create a new analytical function, one that can focus on identifying potential time bombs in new legislation by devising a scheme to objectively score the clarity of the language involved. There's a precedent for this concept... The Congressional Budget Office. The CBO was originally created by legislation in 1974 because Congress grew annoyed at depending upon numbers provided by the Nixon Administration to use in its work to originate spending bills. After establishment to provide Administrative / Legislative independence, members of both parties WITHIN Congress came to depend upon the CBO to provide an agreed upon set of financial "facts" about spending, taxation and borrowing so elected officials could focus on policy debates rather than whose facts were true or false. It's not a perfect system but it prevents every individual politician from cherry-picking their own "facts" for inclusion with legislative proposals and wasting the time of 535 people arguing over numbers.

In the spirit of the Congressional Budget Office, Congress also needs to create and fund an independent Constitutional Grammarian Office -- the CGO. The CGO would review all proposed legislation, score it for reading level, compliance with basic standards of grammar, punctuation of lists, subject / verb / object agreement and use of imprecise lingo that may not survive over time. Bills falling below a certain score or matching specific no-go bogeys would be prevented from reaching the floor in either chamber for a vote until corrected.

But is this really necessary? A week's worth of news makes it easy to identify at least twenty members of Congress who might not even operate above an eighth grade reading level. Rulings from one new appointee to the Federal bench in Fort Pierce, Florida make it clear reading comprehension issues exist as well in the judiciary who are going to have to interpret new laws as well. It seems any effort to raise the baseline of clarity in ANY new legislation would be a wise investment.

Honestly, it isn't clear what measures can eliminate some of these existential risks facing the United States. But it's crystal clear that we shouldn't be distracted by arguments about whether a President is an "officer" of the United States Government. Or if a law written over one hundred and fifty years ago meant to exclude the top elected office in the country when it explicitly included the words "any office." Or if a person who "incited" a riot and communicated with those who definitely "engaged" in the riot also "engaged" in said riot. The country lacks the brain cells and the time required by these distractions and has much more serious issues needing resolution.


WTH

We'll see if he is removed from the ballot once he is found guilty, not just indicted.

I've seen two additional points about this ruling either from those in the professional commentariat and the larger internet that are thought provoking at the very least.

As with my comment, the commenters thought it was odd that the judge devoted so much of the ruling to evaluating the factual claims of the petitioners (the parties that cited the January 6 Committee's output regarding the riot and events leading up to it) and explicitly ruled as to the validty of those facts. That made it odder still that on the final issue -- if insurrection WAS committed by Trump, should he be banned under the Fourteenth Amendment? -- the judge seemed to ignore her factual findings and rule he could not be barred from the Colorado primary ballot.

What they drew from that was that by so explicitly recounting those facts while issuing a verdict that would likely be appealed, the appeal cannot re-litigate the FACTS of the case. Appeals can only re-litigate the legal rationale used UPON those facts and their compliance with established precedent or their validity if addressing some new corner case not covered by precedent. In effect, the judge succeeded at getting on the record a long litany of acts undertaken by Trump and his minions and a declaration that each HAPPENED and was a CRIME.

They also concluded that the judge absolutely got the ultimate decision wrong and there are numerous points in federal law which can be identified to correct her logic that a) the office of President is some separate realm of "office" different than that referenced in the Fourteenth Amendment and b) an "oauth to defend" the Constitution is different than an "oauth to uphold/support" the Constitution and that other case law exists that can correct these findings. Given the petitioners will appeal to the Colorado State Supreme Court and eventually the US Supreme Court if needed, these professionals seem to think it is likely an appellate court will rule the amendment DOES apply to the "office of President" and to the "oauth of office" of the President.

Which brings up a second attention getting point. One comment mentioned that maybe the judge was legitimately concerned about getting over-ruled if she ruled in favor of the effort to block Trump's appearance on the ballot, given that language and grammar ARE often obtuse across different sections of the United States code. Maybe she was concerned that getting overturned on a ruling FAVORING the removal from the ballot would lead to more confusion and delay as Trump and Republicans appealed. Maybe an initial ruling PROTECTING the right to appear on the ballot would require an appellate court to more EXPLICITLY explain WHY such a candidate should NOT appear and WHY the actions now accepted as fact DO constitute acts subject to the Fourteenth Amendment. And most importantly, if the case goes all the way to the Supreme Court for that body to issue that ruling, now that ruling is in effect across all 50 states and territories - INSTANTLY.
No need to litigate it in multiple states.

The flaw with THIS argument is that it assumes Trump would appeal a COSC decision that kicked him off the ballot. If he determines he might likely lose in Colorado anyway, he could just eat the loss on this issue and blow off Colorado's electoral votes. This would prevent the issue from being established nationwide, requiring more litigation and delay before achieveing critical mass.

The overall logic is appealing but it isn't clear these judges are playing that many moves ahead. A more plausible explanation is that many of these judges for some reason fear having to stick their legal / intellectual necks out to make such an obvious ruling in hope that the population will regain its sanity and not elect someone who may not surrender the reigns in another four years. They are acting almost as if they believe if they don't have to make these types of decisions and don't want to sully the law of the land by having rulings on file that have to explicitly tell the country a candidate for President COULD be under indictment or could be a convicted felon and we probably shouldn't put those types in arm's length of enforcing the Constitution and the nuclear football. This isn't really happening and it will go away.

That is patently false and dangerous. This problem is NOT going away.


WTH

The overall logic is appealing but it isn't clear these judges are playing that many moves ahead.

It doesn't require thinking that many moves ahead.

It's pretty basic "that's above my pay grade" analysis. This is an unprecedented request (literally), in a highly-visible and deeply political area of law. Trial court level judges are pretty junior in the judicial hierarchy - they're not generally supposed to, and not often asked to, blaze a whole lot of new legal trails. It's a pretty understandable position to lean towards preferring that the first court to rule prohibiting a major-party nominee can't be on the ballot ought to be a higher court than a trial court - either Circuit Court or SCOTUS.

This is a classic "punt" decision. The district court judge tied up all of the factual questions that are always decided at the lowest court level (was there an insurrection? what was Trump's role?) so that there's not likely any need for upper courts to remand back. But the judge came down on the "no action" side on the purely legal question (is the President an "officer" within the meaning of the Clause) that the upper courts are perfectly capable of addressing without deferring to the evidentiary function of the district court. IOW, all the fact questions were resolved, the status quo remains, and the legal issues are queued up for a more senior court to rule on.

they're not generally supposed to, and not often asked to, blaze a whole lot of new legal trails.

It makes sense that a first tier court would not be the preferred venue to alter or outright reverse prior precedent. Stare decisis and all. I didn't know there were unwritten rules that first tier courts were expected to shy away from being first to establish precedent for new, unseen combinations of facts, however obvious. Seems like a practice that puts the appearance of judicial stability ahead of actual justice. Especially when it delays justice for the ultimate winner, presuming they have the financial means to continue through multiple appeals.


WTH

It makes sense that a first tier court would not be the preferred venue to alter or outright reverse prior precedent. Stare decisis and all. I didn't know there were unwritten rules that first tier courts were expected to shy away from being first to establish precedent for new, unseen combinations of facts, however obvious. Seems like a practice that puts the appearance of judicial stability ahead of actual justice. Especially when it delays justice for the ultimate winner, presuming they have the financial means to continue through multiple appeals.

Well, most precedent is established (eventually) by higher courts. And district courts (which are the trial courts of the federal system) never allowed to alter or outright reverse prior precedent from any higher court. So district courts are generally more in the business of following precedent than setting it, while the Circuit Courts (the appellate courts) are generally more in the business of establishing and refining precedent.

If there's a completely novel question of law that is both publicly important and nearly certain to get appealed to a higher court, then it doesn't really matter much what the district court thinks on the issue. The Circuit Court will not assign any weight to the district court's conclusions of law. Justice is not going to be delayed in that context - if they rule in a way that disturbs the status quo, there will certainly be a stay issued pending appeal. So if they side with the status quo, and let the circuit court make the call, it avoids creating that "emergency" situation - with midnight motions for stays and expedited pleading schedules and whatnot - while the decision makes its way up the chain.

In "normal" novel questions of law, the district court won't care much about the above - they'll just rule on the legal issue. Here, where the ruling could precipitate uncertainty in the primary process nationwide, there's a level of prudence in not having the courts decide to disturb the status quo until the case reaches the level of the judiciary where that disturbance might "stick."

Oh - and plus, I think the judge got it right.

The Appointments Clause of the Constitution says:

and [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, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

....and the Disqualification Clause says:

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.

Reading them together, "offices" of the United States are the positions that the President appoints people to - either directly, or that are appointed to those offices by his appointees. A Senator is not an officer of the United States. Neither is a Representative. Neither is an Elector, since those are given their offices by State processes.

Which is why the DQ clause reads the way it does. It separately enumerates Senator, Representative in Congress, or elector of President and Vice-President distinctly from "any office, civil or military, under the United States" - because the drafters of the DQ Clause knew that the term "any office, civil or military" didn't apply to those positions. A Senator doesn't hold an office under the United States, because they weren't appointed by the President. A U.S. Rep. doesn't hold an office under the United States for the same reason, and so too the electors. Which is why they had to be listed separately from the "any office" description.

The President similarly doesn't hold "any office, civil or military, under the United States." Nor the Vice-President. Since those are elected, not appointed, positions they don't fall within that term.

Here, where the ruling could precipitate uncertainty in the primary process nationwide, there's a level of prudence in not having the courts decide to disturb the status quo until the case reaches the level of the judiciary where that disturbance might "stick."

Then it appears the judge played the four-bumper, two-carom pool shot of this case nearly as perfectly as it could have been played.


WTH

If the interpretation of the disqualification clause you outline is found to hold, then we absolutely need another amendment to the Constitution to correct it.


WTH

Reading them together, "offices" of the United States are the positions that the President appoints people to - either directly, or that are appointed to those offices by his appointees.

The Appointments Clause of the Constitution says: [the President] shall nominate] "all other Officers of the United States, whose Appointments are not herein otherwise provided for".

This implies that there are Officers whose appointments are provided for by the Constitution. The President is one of those.

This implies that there are Officers whose appointments are provided for by the Constitution. The President is one of those.

Quite the contrary. The Clause says that all Officers whose Appointments are not herein otherwise provided for are to be appointed by the President. The President is not appointed, and he certainly cannot appoint himself.

The Clause implies that "Officers" are people that are appointed to their position by the President or people the President has appointed. Which the President is not.

There are Officers not appointed by the President. For example, the Speaker of the House: "The House of Representatives shall chuse their Speaker and other Officers".

There are Officers not appointed by the President. For example, the Speaker of the House: "The House of Representatives shall chuse their Speaker and other Officers".

Sure - but the Speaker isn't an "Officer of the United States." Because those Offices can only be filled by Presidential appointment.

So when you look at the DQ Clause of the 14th, it provides:

"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...."

...which doesn't mean any single position that is called or can be called an "office." It refers to offices "under the United States." That term (like so many in the Constitution) is undefined. Since the Appointments Clause says that all other "Officers of the United States" are to be appointed by the President, though, there's a strong argument that "Officers of the United States" means the ones subject to Presidential appointment power (which doesn't include the President).

And again, the fact that not every position mentioned in the Constitution is an "officer" for the purpose of the DQ Clause is reinforced by the fact that the DQ Clause specifically mentions Senators, Reps, and electors in addition to "any office." All of those folks are presumably not holders of "any office....under the United States." Which means that there can be important members of the Federal government which aren't officers of the Federal government.

Is the President an officer of the United States?

"Citing the federal officer removal statute, President Trump filed a timely notice of removal in federal court."
https://casetext.com/case/kd-llc-v-trump-old-post-...

"In May, Seth Barrett Tillman and I discussed on Lawfare whether the President was an "Officer of the United States" for purposes of the federal officer removal statute. The New York District Attorney argued that Trump was not an "Officer of the United States." And Trump countered that he was an "Officer of the United States"-at least for purposes of the federal officer removal statute."
https://reason.com/volokh/2023/07/19/sdny-believes...

Section 1442 - Federal officers or agencies sued or prosecuted
(a) A civil action or criminal prosecution that is commenced in a State court and that is against or directed to any of the following may be removed by them to the district court of the United States for the district and division embracing the place wherein it is pending:
(1) The United States or any agency thereof or any officer (or any person acting under that officer) of the United States or of any agency thereof, in an official or individual capacity, for or relating to any act under color of such office or on account of any right, title or authority claimed under any Act of Congress for the apprehension or punishment of criminals or the collection of the revenue.
https://casetext.com/statute/united-states-code/ti...

Occam's razor says the President is an officer. That's the simplest view.

"Citing the federal officer removal statute, President Trump filed a timely notice of removal in federal court."

Yep. And he wasn't going to prevail on that motion. From the below article:

The 1948 statute was not drafted on a blank slate. The phrase “officer of the United States” appears in several important provisions of the Constitution. And drafters of the federal statute can reasonably rely on how that phrase was understood for nearly two centuries. For example, the president has the power to nominate “officers of the United States.” This text strongly suggests that the president himself is not an “officer of the United States.” And the House of Representatives can impeach “the President, Vice President and all civil Officers of the United States.” Justice Joseph Story explained that the Constitution’s drafters’ listing the presidency and vice presidency separate and apart from the “Officers of the United States” suggests that these appointed positions are distinct from the former elected positions.

The Supreme Court has consistently recognized a distinction between the “officers of the United States,” who are appointed, and elected officials, like the president. In Free Enterprise Fund v. Public Company Accounting Oversight Board (2010), Chief Justice John Roberts observed that “[t]he people do not vote for the ‘Officers of the United States.’” These latter positions are appointed. A century earlier, the Supreme Court reached a similar conclusion about a statute that also used the phrase “officers of the United States.” In United States v. Mouat (1888), the Court explained that a person who does not “hold[] his place by virtue of an appointment ... is not strictly speaking, an officer of the United States” (emphasis added). The president, who is elected and not appointed, is not an “officer of the United States.”

https://www.lawfaremedia.org/article/why-the-manha...

Occam's razor says the President isn't an officer. Officers are appointed, and the President isn't.

Another example of why we need not only a grammarian but a historian analyzing new laws for accidental conflicts with such established, subtle, obscure concepts. The average American hears of people running for "elected office" every day. We have ELECTED officials, including the President, take an "oauth of office" at the beginning of each term "in office." The average American would be irate after discovering a law passed in the last forty years regulating the conduct of "officials" or "office holders" would not apply to an elected role and watching an elected official walk from charges.

The law needs to be a very precise practice and we can't afford to spend the time rewriting every law to update it as language and its use evolves over decades and centuries. However, I don't think you could find a single American with more than two brian cells and a 3-digit IQ who would have read the 14th amendment and not come to a first conclusion that its INTENT was to keep actors who violated a prior "promise" to PROTECT the Constitution as part of ANY official government "role" (elected or appointed) from holding "any" such "roles" in the future if found to have violated that "promise" by actively subverting the Constitution in any way. I doubt there is anything in the historical record that can prove drafters of the 14th amendment and those that voted for it meant to preserve a path for Jefferson Davis, Robert E. Lee, Nathan Bedford Forrest, et al to run for President of the United States and be allowed to take office because the people voted for them.

Between the Second Amendment and the Fourteenth Amendment, their crappy wording and sentence structure may have slipped loose enough violence and legal mayhem within the country to count as the seeds of the country's undoing.

The country has devolved to the point where "Up Goer Five" level simplicitly isn't required for us non-legal rubes, it's required to ensure highly sophisticated types bent on subverting the country cannot find logical / grammatical loopholes in prior law and exploit them to go scot free after committing crimes. It does us no good for judges to insist on being "technically" correct in applying 150 year old interpretations of grammar and terminology when justice in present circumstances requires a different interpretation.

Frankly, the country may have jumped the shark. It was bad enough we had to amend the Constitution in an ATTEMPT to keep those who actively fought to END the government from seeking new "appointed office" or "elected positions" in the surviving government. The fact that we now find we should have EXPLICITLY clarified the restriction needed to apply to EVERY possible position in the government including the President because 35% of the country is hell-bent on electing a 91-count, criminally indicted, national security danger back to President in the end is the only thing that matters. We cannot amend our way away from that existential stupidity.


WTH

If you hold an office, by whatever means, are you not an officer?

Occam's razor says the President isn't an officer. Officers are appointed, and the President isn't.

Officers are not limited to those who are appointed. For example, the Speaker of the House is an officer who is not appointed by the President. Police Officers are not appointed by the U.S. President.

The Supreme Court has found the President is an officer. And the Congressional Record shows Congress views the President as an officer. The meaning of "officer" exists outside of the U.S. Constitution, and is commonly used and understood separate from that document. The ordinary use of "officer" does not include appointment by the U.S. President.

An officer is one who holds an office of trust, authority, or command. The President holds an office, and so is an officer.

An office is a position of authority to exercise a public function.

U.S. Supreme Court Nixon v. Fitzgerald, 457 U.S. 731 (1982)
"Article II, § 1, of the Constitution provides that "[t]he executive Power shall be vested in a President of the United States. ..." This grant of authority establishes the President as the chief constitutional officer of the Executive Branch"
https://supreme.justia.com/cases/federal/us/457/73...

U.S. Constitution
"The executive Power shall be vested in a President of the United States of America. He shall hold his Office ..."

"In the mid-nineteenth century, as today, the president fell within the ordinary meaning of “officer.” Members of the 39th Congress, which proposed the Amendment, repeatedly referred to the president as an officer. Historically, the distinguishing feature of an “officer” is that they swore an oath."
https://www.theusconstitution.org/blog/responding-...

I doubt there is anything in the historical record that can prove drafters of the 14th amendment and those that voted for it meant to preserve a path for Jefferson Davis, Robert E. Lee, Nathan Bedford Forrest, et al to run for President of the United States and be allowed to take office because the people voted for them.

Perhaps - which is why the DQ Clause prohibits Rebels from serving as electors. Remember, the people don't technically vote for an individual to serve as President - they vote for Electors, which then elect the President. Without political allies to serve as your Electors, you can't get elected President, so keeping all the former Rebels out of the Electoral College would have been enough to keep those guys out of the Presidency.

Now, the specific insurrection that prompted the Reconstruction Amendments was a very large insurrection that consumed half the country. They likely weren't imagining a small insurrection, where only a few thousand people were engaged in an insurrection, so that a member of that insurrection could easily find sufficient folks who weren't part of it to serve as their electors.

But at the end of the day, the words say what they say. It can be very frustrating for lay people, but that's how laws operate.

Officers are not limited to those who are appointed.

Sorry - the context should have made clear that I was referring to "Officers....under the United States," which is what that portion of the DQ Clause appoints to. It doesn't apply to corporate officers, or the officers of another country, or any other officers other than those "under the United States.

Under the most expansive definition of "officer," Senators and Representatives would be "officers." They hold an office, they exercise power and authority, and they swear an oath. But the DQ Clause is drafted in a way that makes it clear that Senators and Representatives are not officers - they are separately enumerated from officers.

Given that the drafters of the DQ Clause listed Senators and Reps and Electors separately from "any office...under the United States," it is absolutely clear that the term "any office....under the United States" cannot refer broadly to every person who holds authority under the federal government and swears an oath. It has to refer to something narrower than that. The interpretive question is whether the President and VP fall within that narrower definition, or are excluded from it.

The Supreme Court has found the President is an officer.

Have they ever found that he is a "an officer...under the United States?" That's the relevant question.

"American with more than two brain cells and a 3-digit IQ "

Sadly, I'm not sure there is a majority supply of people like that...

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