Trump Lawyer Reads the Constitution Like a Secret Code Requiring Decryption

Posted in: Constitutional Law

During last week’s Supreme Court oral argument in Trump v. Anderson, a majority of the Justices appeared likely to reverse the Colorado Supreme Court’s ruling that Donald Trump is ineligible to run in the state’s Republican Party Presidential primary because he “engaged in insurrection or rebellion,” thus disqualifying him under Section 3 of the Fourteenth Amendment. Exactly how the U.S. Supreme Court will reach that result remains to be seen. Trump’s lawyers have offered a grab-bag of possible rationales, eliciting varying responses from the Justices.

For example, Chief Justice John Roberts worried about retribution by election officials and judges who might seek to disqualify the Democratic nominee in other states. Justice Samuel Alito appeared to go so far as to offer Republican partisans an excuse for doing so. He said they could conclude that President Joe Biden gave “aid or comfort to the enemies” of the United States (which Section 3 also makes disqualifying) by unfreezing certain Iranian funds last year in exchange for the release of wrongfully detained Americans.

Other Justices pointed to less obviously political considerations. For example, Justice Brett Kavanaugh repeatedly invoked Griffin’s Case, in which Chief Justice Salmon Chase, acting in his capacity as a lower court judge, ruled that Section 3 is not operative absent legislation by Congress. Because the case was decided just a year after the adoption of the Fourteenth Amendment, Justice Kavanaugh said, it provides very good evidence of the original meaning of Section 3. He persisted in this contention, even after Trump’s own lawyer conceded that the authority of Griffin’s Case was substantially undermined by the fact that Chief Justice Chase himself took the opposite view in a case involving Jefferson Davis.

Meanwhile, the argument for reversal that seemed to gain the most traction combined practical concerns regarding disparate results among different states with a structural point about the division of authority between the federal and state governments. Given that the President is elected by the whole nation, this argument goes, a federal body—such as Congress—rather than fifty states should decide on a major party candidate’s eligibility. The respondents’ attorney Jason Murray forcefully pushed back by noting that somewhat disparate effects are merely the inevitable consequence of a constitutional design that assigns primary responsibility to the states to decide the manner of selecting Electors for the Presidency. Although he made a strong argument, I share the widespread view among observers that the Supreme Court will reverse the Colorado Supreme Court and allow Trump’s name to appear on the ballot.

The Dog that Probably Won’t Bark

One rationale on which the Supreme Court probably will not rely is the claim by Trump’s lawyers (and a few scholars) that Trump is not barred from the Presidency because Section 3’s ineligibility provision does not apply to the Presidency. To understand this claim, it will help to work with Section 3’s text. As relevant, and with my added italics and bracketed numbers, it provides:

No person [1] 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, [2] 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.

Part 1 identifies the offices for which one is ineligible as an oath-breaking insurrectionist. Part 2 identifies the offices people have held that required oaths that render them ineligible if they thereafter engaged in insurrection or rebellion. Trump’s lawyers argue that he satisfies neither provision, even though both phrases I have italicized—“any office, civil or military, under the United States”—and “officer of the United States”—seem pretty clearly to include the Presidency. Moreover, as the respondents’ brief (at page 34) observes, “the Constitution refers to the Presidency as an ‘office’ roughly 20 times.” To be exact, 27 times, as Dean Falvy wrote here on Verdict earlier this month.

Why, then, do Trump’s lawyers say otherwise? They do not deny that the Presidency is an office or that the President is an officer. However, they say (focusing on part 2), the President is not an “officer of the United States.”

Say what now? If the President is not an officer of the United States, what is he an officer of?

Trump’s lawyers do not answer that question. Rather, they say that the phrase “officer of the United States” is a term of art that excludes the Presidency because it appears in four places in the Constitution, and in each place it logically excludes the Presidency. For example, Article II, Section 3 says that the President “shall commission all the officers of the United States.” Because the President does not commission himself, they say, the President must not be an officer of the United States.

Intratextualism Run Amok

Is that a sound argument? No, of course not.

At the most granular level, Trump’s legal team is wrong about Article II, Section 3. As the respondents explain in their brief (at page 40), the Commissions Clause should be read in conjunction with the Appointments Clause of Article II, Section 2. It provides that the President appoints various specific officers and “all other Officers of the United States, whose Appointments are not otherwise provided for.” Read in light of the Appointments Clause, “all the officers of the United States” as it appears in the Commissions Clause refers to all the officers of the United States who need Presidential commissions, but not other officers—like the President—who fill their offices via some other mechanism.

Thus, Trump’s argument that the President is not an officer of the United States should fail on its own terms, but even if it were stronger on those terms, it should fail because it treats constitutional interpretation as a kind of cryptography.

In an insightful 1999 article in the Harvard Law Review, Professor Akhil Amar observed that the Supreme Court has, in important cases, sometimes used an interpretive method he dubbed “intratextualism”—looking at how various parts of the Constitution relate to one another. To some extent, intratextualism merely applies a familiar principle of statutory interpretation to the Constitution: where a statute uses the same word in multiple places, it should generally be given the same meaning. The value of Professor Amar’s article was to show how landmark cases built on the principle and how it could generate further insights.

Yet Professor Amar recognized that one can take intratextualism too far. He cautioned that “[c]arried to extremes, intratextualism may lead to readings that are too clever by half—cabalistic overreadings conjuring up patterns that were not specifically intended and that are upon deep reflection not truly sound but merely cute . . . or mystical.”

That is a perfect description of Trump’s argument that the President is not an officer of the United States. Asked by Justice Elena Kagan during the oral argument what possible purpose the Reconstruction Congress that proposed the Fourteenth Amendment could have had for excluding Presidents-turned-insurrectionists from Section 3’s coverage, Trump’s lawyer Jonathan Mitchell admitted that there was no good rationale for doing so. Given that the plain meaning of “officer of the United States” includes the President, that should have put an end to his hair splitting.

There is reason to hope that it will. During the oral argument, Justices Neil Gorsuch and Ketanji Brown Jackson seemed enamored with the claim that Section 3 does not cover the Presidency, but other Justices focused on other issues. Unfortunately, they did so in a way that strongly suggests that the Court will reverse the Colorado Supreme Court and allow former President Trump to continue to menace American democracy.

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