The following is a guest post from Peter Keisler and Richard Bernstein, delving deep into Trump’s hypertechnical lead argument:
Former President Trump’s reply brief in Trump v. Anderson makes five arguments that if, under Section 3 of the Fourteenth Amendment, a President of the United States was an “officer of the United States” or held an “office, civil or military, under the United States,” this would lead to untoward consequences or anomalies. Each of the five arguments is wrong.
1. Mr. Trump Is Covered By Section 3 Even Assuming The Speaker Of The House And President Pro Tempore Of The Senate Are Not “Officer[s] Of the United States” And Do Not Hold “Office[s] Under The United States”: The reply brief at 3-4, 13, argues that if the President is covered by Section 3, then the Speaker of the House and the President Pro Tempore must also both be officers “of the United States” and hold offices “under the United States.” Not so. The Constitution expressly refers to the “President of the United States,” Art. II, § 1, cl. 1, and the “Vice President of the United States,” Art. I, § 3, cl. 4. In contrast, the Constitution never uses the phrase “of the United States” after referring to the Speaker or the President Pro Tempore. Rather, the Speaker is one of the “Officers” of the House, Art. I, § 2, cl. 5, and the President Pro Tempore is one of the “Officers” of the Senate, Art. I, § 3, clause 5. That the Speaker and President Pro Tempore are never defined as “of the United States” explains why they would not be subject to impeachment as “officers of the United States.”
Moreover, contrary to Trump’s reply at 3, the Speaker and President Pro Tempore do not have to be officers “of the United States” in order to be eligible to be successor Presidents when there is a vacancy under Article II, section 1, clause 6. That Clause allows any “officer” designated by statute to act as President. That Clause does not use the phrase “of the United States” as an additional limit on who may be designated by statute as a successor President.
2. There Is No Clear Statement Argument That Limits Whether Section 3 Applies To A President: Trump’s reply at 14 relies on a case that held that a statute did not apply to the President absent a clear statement. But, as stated by the case cited, Franklin v. Massachusetts, 505 U.S. 788 (1992), no similar rule applies when “the President’s actions” violate the Constitution, id. at 801. Likewise, the rule for the statutes protected “the separation of powers” against statutory encroachment. Id. at 800. By definition, a constitutional provision itself cannot violate the Constitution’s separation of powers.
3. In Addition To Being A Civil Officer, The Vice President Is A Legislative Officer, Even If Not A Military Officer: The reply at 10-11 states that the Vice President “has no military responsibilities” and therefore there was no ambiguity that supported the Vice President being named in the Impeachment Clause if the Vice President also was a “civil officer[] of the United States.” But there is another reason why for clarity the Impeachment Clause names the Vice President. This is because the Vice President is “President of the Senate” who votes to break ties. Art. I, § 2, cl. 4. Thus, the Impeachment Clause needed to name the Vice President so the Vice President would be covered in his legislative officer capacity if, for example, the Vice President took a bribe to cast a tie-breaking vote.
4. Vice Presidents Often Seek Another Federal Office: Trump’s reply at 12 argues that one reason that Section 3 does not apply to Presidents is that after they leave that office, they rarely seek federal office. This ignores that Mr. Trump’s arguments inexorably would exclude Vice Presidents from Section 3 as much as they would exclude Presidents. And Vice Presidents often seek another federal office after their term. See VP Joe Biden, VP George H.W. Bush, VP Hubert Humphrey, etc. Indeed, shortly before Section 3 was added to the Constitution, outgoing Vice President John C. Breckenridge sought the Presidency in 1860 and was appointed to and served in the Senate in 1861. Under the reply brief’s belated argument that the President is not an “office, civil or military, under the United States,” Breckinridge—who had been a Confederate General and the Confederacy’s Secretary of War—was eligible to become President. That is nuts.
5. The Text Of The Sinecure Clause Confirms That The Constitution Uses “Appointed,” “Elected,” And “Chosen” Interchangeably: Trump’s reply at 9 argues that if a President is considered “appointed,” Article I, section 6, clause 2, the Sinecure Clause, makes no sense. The Sinecure Clause actually supports respondent Anderson’s argument that the election of a President is a form of appointment in the Constitution. It is true that the Sinecure Clause refers to Senators and Representatives as “elected.” But Article I, Section 3, clause 2 states that when there is a Senate vacancy, the Governor of the State “may make temporary Appointments.” Surely, such appointed Senators are considered “elected” so that they are subject to the Sinecure Clause.
Moreover, while the Sinecure Clause refers to Senators and Representatives as “elected”, clauses 1 of Sections 2 and 3 of the same Article refer to Senators and Representatives synonymously as “chosen.” (Similarly, in Article II, section 1, clauses 1 and 3, one way that a President is “elected” is that when no candidate has a majority of electoral votes, the House then shall “chuse” the President.) And we know from Article II, Section 1 that “appoint” and “choose” are used as synonyms. Clause 2 states that “Each State shall appoint” presidential electors while clause 4 refers to “chusing the Electors.” In January 1789, four states appointed and chose presidential electors by election by popular vote. Worley Amici Br. at 16. This trifecta and the Sinecure Clause are consistent with a constitutional mosaic where “appointed,” “elected,” and “chosen” are used interchangeably.
As to the reply brief’s asserted fear that a legislated salary increase for the President and Vice President could be used under the Sinecure Clause to preclude a Senator or Representative from becoming President, there have been no such increases since 2003, despite inflation. And none is in the offing. In our era of divided government and Senate filibusters, it is a fantasy that one party could enact a salary increase for the Presidency, with the then-President’s signature, with the purpose of preventing a specific Senator or Representative from the other party from becoming a future President. And the members of Congress by statute could protect their collective ambitions by making any salary increase inapplicable to a President or Vice President who had been a Senator or Representative when the increase was enacted. See 33 Op. O.L.C. 201 (2003).