Rule of Law

Responding to Mukasey: The President Is an “Officer” Under Section 3 of the Fourteenth Amendment

Section 3 of the Fourteenth Amendment provides that “Officers of the United States” who engaged in insurrection against the country are disqualified from holding office. In an op-ed in the Wall Street Journal on September 7, 2023, “Was Trump ‘an Officer of the United States’?,” Michael Mukasey argues this provision does not apply to Donald Trump—because, he says, presidents are not “Officers of the United States.”

This argument contradicts the plain text of Section 3, defeats the Amendment’s evident purpose, and belies common sense.

Section 3 was adopted principally to prevent “Officers of the United States” who joined the Confederacy from reclaiming power in the Reconstruction government. Its drafters hardly would have exempted a turncoat president.

And they didn’t. 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. And while Mr. Mukasey is correct that Article II, separately from Article IV, mandates a presidential oath, lawmakers made no distinction between these oaths for the purpose of Section 3.

Mr. Mukasey insists that case law says elected officials are not “officers.” But the lines he quotes, arguably powerful standing alone, are irrelevant to the question here. One pertains to which lower-level federal officials are “Officers,” while the other simply notes that presidents are accountable for such officials because they are not elected.

Mr. Mukasey may think that an election is the preferable way to keep Trump from office, but under the Fourteenth Amendment, Trump’s not qualified to serve.