Rule of Law

“For Whatever Reason”: Will the Colorado Supreme Court Apply the Constitutional Insurrectionist Bar to Presidents?

The arguments and counterarguments that Section 3 of the Fourteenth Amendment doesn’t apply to presidents ahead of today’s oral arguments.

On Nov. 17, a state judge in Denver, Colorado, rendered an extraordinary and historic ruling. After presiding over a five-day bench trial, Denver District Judge Sarah B. Wallace found that former President Trump’s role in inciting and exacerbating the bloody Capitol Siege of Jan. 6, 2021, amounted to having “engaged in … insurrection” within the meaning of Section 3 of the Fourteenth Amendment.

But that wasn’t the extraordinary part. The eyebrow-raiser was when Wallace went on to hold that “for whatever reason” Section 3—the gnarly, post-Civil War amendment that bars many insurrectionists from holding a long list of positions in state and federal government—does not apply to either past U.S. presidents who have committed insurrection or to insurrectionists who seek to become U.S. presidents.

“It may very well have been an oversight,” she wrote, finding scant reason for the section’s framers to have intentionally exempted from its purview the most culpable and prospectively dangerous insurrectionists of all.

After allowing that “there are persuasive arguments on both sides,” Wallace said that her final holding incorporated a species of tag-goes-to-the-candidate rule:

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. … 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.

Accordingly, Judge Wallace ordered Trump’s name to be placed on the Republican primary ballot on Jan. 5, 2024—when final primary ballots will be certified in Colorado—and rejected the voter-petitioners’ protests that he was ineligible under Section 3.

Under the state’s expedited ballot-challenge procedures, the Colorado supreme court will hear oral argument on the petitioners’ appeal of Judge Wallace’s ruling on Wednesday, Dec. 6. Due to a cross-appeal by Trump and his allies, the court will also hear challenges to a litany of other substantial, contested state and federal issues—including whether Trump engaged in insurrection—on which Wallace ruled against Trump.

The arguments in favor of the proposition that Section 3 doesn’t apply to presidents have often received short shrift, being dismissed as “absurd,” “preposterous,” and “implausible” or the like.

Now that those arguments have won at least one judicial adherent, they have earned the right to be taken more seriously. Here I aim to lay out the key arguments that won Wallace over, together with the key counterarguments.

Two Distinct Arguments

When people debate whether Section 3 applies to presidents, they are potentially talking about two distinct propositions. To understand why, the reader needs to dive into Section 3’s daunting text:

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.

We can think of the provision as having a tripartite structure. First, the section makes clear that it doesn’t apply to all insurrectionists. It only applies to the subset of insurrectionists who satisfy a triggering event. That triggering event is “having previously taken” an “oath … to support the Constitution” in the process of becoming “a member of Congress [or] an officer of the United States” or certain categories of state government posts.

Second, the section defines the wrongdoing that those who have satisfied the triggering event must commit to become subject to the section’s sanctions. For our purposes, the relevant wrongdoing is to “have engaged in insurrection.”

Finally, the section defines the sanctions for those have cleared the first two hurdles—let’s call them oath-breaking insurrectionists. Those people are barred from holding any of a list of positions in the future—unless and until both Houses of Congress, by a two-thirds majority, lift that prohibition. The list of barred positions includes “Senator or Representative in Congress, or elector of President and Vice-President, or … any office, civil or military, under the United States,” or any of a list of state government posts.

As the reader can see, neither the word president nor presidency show up in the provision. On the other hand, the triggering clause includes generic phrases that might arguably encompass presidents. For instance, its triggering clause will be met by all those who take oaths to become “an officer of the United States.” Similarly, the list of positions that oath-taking insurrectionists are barred from holding includes “any office, civil or military, under the United States.”

Accordingly, those who argue that Section 3 doesn’t apply to Trump make at least one of two arguments:

1. The presidency is not an “office … under the United States.” If that’s the case, Section 3 does not bar oath-breaking insurrectionists, like Trump, as Wallace found, from become president.

2. The president is not “an officer of the United States” for purposes of the oath-triggering clause. If that’s the case, Section 3 never brought Trump within its purview, so it doesn’t matter if Trump later went on to engage in insurrection.

Most people who argue that Section 3 doesn’t apply to Trump are talking about argument 2—that the president is not “an officer of the United States.” In fact, the law professors who may have been the first to comprehensively champion the notion that Section 3 does not apply to Trump, Josh Blackman of South Texas College of Law Houston and Seth Tillman of Maynooth University School of Law and Criminology in Ireland (in a December 2021 law review article), have only argued argument 2. They say they are agnostic about argument 1. Similarly, the only constitutional law expert Trump called as a witness at the Colorado trial, retired law professor Robert Delahunty of the University of St. Thomas School of Law in Minneapolis, took “no position” on argument 1. In fact, during cross examination, Delahunty admitted that he “would be inclined” to conclude that the presidency is an “office … under the United States”—i.e., that argument 1 is wrong and oath-breaking insurrectionists are barred from assuming the presidency.

It’s not hard to see why many people would shy away from argument 1—the claim that the presidency isn’t an “office … under the United States.” To begin with, for instance, the Constitution refers to the presidency as an “office” some 25 times, according to the petitioners’ count.

Some of those who argue that presidents are covered by Section 3 find it suspicious that so many proponents of argument 2 shy away from argument 1. These critics regard the two arguments as, essentially, just two sides of the same coin. “A public ‘officer’ is simply one who holds a public ‘office,’” as the voter-petitioners argue in their supreme court brief, quoting—as if it were necessary—sample dictionary definitions from 1763 and 1857. Certainly no one has ever advanced a convincing theory of why the differing prepositions in the phrases—“officer of the United States” versus “office … under the United States”—would make any difference, or that any of the framers of Section 3 attached significance to that distinction.

In a forthcoming law review article, first posted online in August, two renowned originalist scholars accuse Blackman and Tillman of “prepositional jujitsu” and of “tellingly equivocat[ing]” by embracing argument 2 while remaining silent on argument 1. Those two authors, William Baude of the University of Chicago Law School and Michael Stokes Paulsen of the University of St. Thomas Law School, write:

[T]he argument rather implausibly splits linguistic hairs. No one denies that the President is an executive branch officer holding executive office. At the risk of belaboring the obvious: Article II refers to the “office” of President innumerable times. It specifies the length of term for which the President “holds his Office,” certain minimum qualifications for eligibility “to that Office,” what happens upon the President’s removal “from Office,” or inability to discharge “the Powers and Duties of said Office,” and the oath he shall take before entering “on the Execution of his Office.” If the Presidency is not an office, nothing is.

Still, in an draft law review article posted on the Social Science Research Network in October—while the Colorado trial was playing out—professor Kurt Lash of the University of Richmond School of Law did finally advance a scholarly case supporting argument 1. (Lash has also submitted an amicus brief in the Colorado supreme court reiterating his views.)

When the dust cleared on Nov. 17, Judge Wallace, relying in part on Lash’s contentions, adopted both arguments 1 and 2. The presidency was not an “office,” she held, nor was the president an “officer” for purposes of Section 3. So this article will address both propositions.

Some Relatively Uncontested History

Here is some basic history concerning Section 3 that both sides roughly agree upon. When the 39th Congress showed up for work in December 1865, according to a 2021 law review article by Gerard Magliocca, a professor at the University of Indiana School of Law, some of its members included leaders of the recently quelled rebellion, including Alexander Stephens, vice president of the Confederacy. Outraged by this circumstance, the Joint Committee on Reconstruction recommended “the exclusion from positions of public trust of, at least, a portion of those whose crimes have proved them to be enemies to the Union, and unworthy of public confidence.” (Though published in 2021, Magliocca’s article was largely completed and posted online in December 2020—before Jan. 6, 2021—lending it unusual and fortuitous credibility in this context. The voter-petitioners, represented by attorneys for Citizens for Responsibility and Ethics in Washington, called Magliocca as their constitutional expert in the Colorado trial. Judge Wallace credited his testimony on the meaning of “insurrection” and “engaging in insurrection,” but rejected his testimony on the scope of Section 3.)

On February 19, 1866, Kentucky Rep. Samuel McKee proposed language for an amendment aimed at accomplishing goals similar to those that Section 3 was later passed to achieve. It has played an important role in the arguments of Lash and others who argue that Section 3 does not reach the president. McKee’s proposal mentioned the “office of the President” by name:

No person shall be qualified or shall hold the office of President or vice president of the United States, Senator or Representative in the national congress, or any office now held under appointment from the President of the United States, and requiring the confirmation of the Senate, who has been or shall hereafter be engaged in any armed conspiracy or rebellion against the government of the United States . . .

Since the version of Section 3 that ultimately emerged makes no explicit reference to the president, the obvious implication is that the framers must have decided not to include the president. As we’ll see, Judge Wallace credited this inference.

In amicus briefs to the state supreme court, constitutional scholar Mark Graber, of the University of Maryland School of Law, and lawyers with the Constitutional Accountability Center, each take issue with that interpretation.

According to both briefs, McKee himself later submitted a different proposal, both briefs note, which used broader language. Yet he evinced no hint of having consciously narrowed the provision’s scope. His second proposal would have disqualified insurrectionists from holding any “office of trust or profit under the United States.”

Graber argues that there’s no evidence that McKee’s original proposal was ever formally debated and there’s plenty of evidence that McKee thought the broader language of his second proposal was as robust as his first. Per Graber’s amicus brief:

[McKee] declared, “I desire that the loyal alone shall rule the country which they alone have saved,” and that his proposal “cuts off the traitor from all political power in the nation.” McKee treated “office,” “office of trust or profit under the Government of the United States,” and “office under this Government” as interchangeable. The goal of constitutional reform was to “seize them [i.e., rebels] forever from office.” [Footnotes omitted.]

The Thaddeus Stevens Draft

The Joint Committee’s first formal draft of Section 3, introduced by Rep. Thaddeus Stevens on April 30, 1866, took an entirely different approach than either McKee’s or the one that was ultimately adopted. It focused on disenfranchisement of Confederates:

Until the 4th day of July, in the year 1870, all persons who voluntarily adhered to the late insurrection, giving it aid and comfort, shall be excluded from the right to vote for Representatives in Congress and for electors for President and Vice President of the United States

Stevens said it would be enforced in “presidential and all other elections.”

Lash writes in his amicus brief that Stevens’ approach “guarded the presidency by disenfranchising rebels from voting for electors of the President of the United States.”

But that approach was later scrapped in favor of the final version of Section 3, which barred anyone from becoming “a Senator or Representative in Congress, or an elector of President and Vice President, or hold[ing] any office, civil or military, under the United States, or under any State, who having previously taken an oath . . . or as an officer of the United States . . . to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same.”

Stevens’ original version was scrapped, Lash contends, due to concerns that it didn’t adequately ensure a “trustworthy electoral college.” For instance, states that still appointed presidential electors (without a popular vote), could have still appointed Confederate electors, he writes.

The final version then “addressed these concerns by prohibiting leading rebels from serving as presidential electors,” Lash argues.

Graber protests in his supreme court brief that Section 3 doesn’t solve that problem at all:

Every former member of the Confederate Army who had not held state or federal office before the Civil War remained constitutionally qualified to be a presidential elector. In fact, at least three former confederate soldiers, including General John B. Gordon, one of Robert E. Lee’s “most trusted” officers, were presidential electors from Georgia in 1868.

The Johnson–Morrill Exchange

During the floor debates over the Joint Committee’s final version of Section 3, a momentous exchange occurred—at least for our purposes. Magliocca testified about it at the Colorado trial and many briefs and law review articles address it.

Sen. Reverdy Johnson was concerned about the draft. He commented that former rebels “may be elected President or Vice President of the United States, and why did you omit to exclude them?”

Sen. Lot Morrill responded: “Let me call the Senator’s attention to the words “or hold any office, civil or military, under the United States.”

Johnson, apparently mollified, walked back his statement: “Perhaps I am wrong as to the exclusion from the Presidency; no doubt I am; but I was misled by noticing the specific exclusion in the case of Senators and Representatives.”

The committee approved Section 3 in its final form the next day.

Referencing the Johnson – Morrill exchange, Magliocca wrote in his law review article (and he expressed similar conclusions in his testimony in October): “Congress did not intend (nor would the public have understood) that [former Confederate president] Jefferson Davis could not be a Representative or a Senator but could be President.”

Still, it’s just one exchange. There’s no proof positive that other drafters were listening or, if they were, that they agreed with what they heard. Lash argues that if Sen. Johnson had been “misled” by the language into thinking the presidency was excluded, perhaps ratifiers of that language shared Johnson’s first reading: that the presidency was excluded.

Section 3 was ratified by the states, along with the rest of the Fourteenth Amendment, in 1868. But before it was, more than one newspaper editorialist, in discussing the provision, evinced their understanding that it barred oath-taking insurrectionists from ever assuming the presidency. That February, for instance, one editorialist in Gallipolis, Ohio, critiqued a weaker, rival proposal that lacked Section 3’s language in these terms:

[The rival proposal] would render Jefferson Davis eligible to the Presidency of the United States, and place it in the power of the South to return to Congress the very men, who in 1861, left it for the avowed purpose of destroying the government. . . . There is something revolting in the very thought.

That July another editorialist wrote in the Milwaukee Daily Sentinel, per the voter-petitioners’ supreme court brief, that Section 3 went easy on the Confederates, given that “[e]ven Jefferson Davis, unless by some miracle of justice he should first expiate his atrocious crimes upon the gallows, may be rendered eligible to the Presidency by a two-thirds vote of Congress.”

In 1872, as the country moved toward reconciliation, Congress granted a general amnesty to certain categories of rebels that had originally been saddled with the Section 3 disability. In debates over where to draw the lines for this amnesty, people again expressed concern about the unthinkable prospect of Jefferson Davis becoming president of the United States—obviously assuming that Section 3 barred such a result. In July 1872, for instance, as the voter-petitioners recount in their supreme court brief: “John Bingham, one of the principal drafters of the Fourteenth Amendment, declared that if amnesty had gone any further, ‘Jefferson Davis [would be] made eligible to be the Democratic candidate for President’—an absurd proposition that elicited laughter in the audience.”

In 1876, a proposal to grant an even broader amnesty provoked still more references to the “monstrous” prospect of Jefferson Davis becoming president, according to a forthcoming law review article by John Vlahoplus.

As newspapers reported, the bill was drafted and pushed “so ostentatiously to make Davis eligible to the Presidency” that it was “practically a bill for that purpose.” In response, Republican Representative Blaine sought an amendment to impose one exception—for Jefferson Davis. Blaine’s supporters rallied to prevent Davis’ eligibility. One paper asserted that “[t]he only justification that Mr. Blaine requires for his amendment is the monstrous anomaly of rendering the Confederate president eligible to the presidency of the United States.” Another itched for battle, writing that “[i]f the Confederates cannot restrain themselves from letting loose a hell of Southern fury because somebody objects to making Jeff Davis eligible to the Presidency, it will be best to give them a chance so that all men may know just what sort of fellows they are.” Yet another criticized the inconsistency of making Davis “eligible for the Presidency, while [naturalized] patriots like Carl Schurz, who have been true to their adopted country, are debarred by the Constitution.” [Footnotes omitted.]

That proposed amnesty bill was defeated. (Vlahoplus is not a professor, but a director at Credit Suisse who has been publishing articles on constitutional law for many years. He is a New York lawyer who obtained his law degree from Harvard in 1989 and D. Phil in politics from Oxford in 1990, according to his LinkedIn and Harvard alumni listings. He declined comment for this article.)

Judge Wallace’s Ruling

Though Judge Wallace’s ruling consumed 106 pages, only six of them addressed the propositions I have dubbed arguments 1 and 2—the arguments that resulted in Trump’s victory.

First, Wallace addressed argument 1: the claim that the presidency is not an “office … under the United States.” The “most compelling testimony” that the presidency was such an office, she wrote, was Magliocca’s discussion of the exchange between Sen. Reverdy Johnson and Sen. Lot Morrill, when Morrill had explained to Johnson why the presidency was covered by Section 3 and Johnson seemed to accept Morrill’s reasoning. She also recounted Magliocca’s testimony that, in her words, “it would be preposterous that Section Three would not cover Jefferson Davis—the President of the Confederacy—should he have wished to run for President of the United States after the civil war.”

Still, she noted that there was “scant direct evidence.” Then she made an observation about the way the barred offices are listed in Section 3:

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.”

In my humble opinion, this argument bootstraps. The list is in descending order only if one has already accepted the contention the presidency is not an “office … under the United States.” The voter-petitioners argue in their supreme court brief that Wallace’s observation is also incorrect if one accepts the consensus view that supreme court justices are also Section 3 “offices.”

Judge Wallace then balked at the notion that an august post like the presidency would be hidden away in a humble, generic phrase:

To lump the Presidency in with any other civil or military office is odd indeed and very troubling to the Court because as [Trump] point[s] 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.

Finally, Wallace refers, citing Lash’s draft article, to Rep. McKee’s early proposal, which would have specifically provided that “No person shall be qualified or shall hold the office of President or vice president of the United States, Senator or Representative in the national congress . . . .”

“This fact certainly suggests that the drafters intended to omit the office of the Presidency from the offices to be disqualified,” she wrote.

After those four paragraphs of analysis, she said she was “unpersuaded that the drafters intended to include the highest office in the Country in the catchall phrase “office . . . under the United States.” In a footnote she addressed the criticism that it would be “preposterous” for the framers of Section 3 to have allowed Jefferson Davis to become president. “Perhaps, the thought process was,” she proposed, “that by excluding electors who were former oath swearing confederates, there was effectively no chance of a former confederate leader becoming President or Vice President.”

She then turned to what I’ve called argument 2: the claim that the president is not “an officer of the United States.”

First, she recounted Magliocca’s testimony about two formal opinions U.S. Attorney General Henry Stanbery had issued in 1867, interpreting the scope of Section 3. These were highly authoritative contemporary readings of the provision, and Magliocca thought each militated in favor of finding that presidents were “officers.” In the first, Stanbery had written that “officer of the United States” was to be interpreted “in its most general sense and without any qualification.” In the second, he found that the words “officers of the United States” applied “without limitation” to any “person who has, at any time prior to the rebellion held any office, civil or military, under the United States and has taken an official oath to support the Constitution of the United States.” Stanbery even added that the president was an “executive officer.”

In each instance, Judge Wallace was unpersuaded, however. “To refer to the President of the United States as a mere ‘civil officer’ is counterintuitive,” she protested.

Next, Wallace acknowledged, without contesting, Magliocca’s testimony that contemporary usage supported the view that the president was an “officer of the United States.” She wrote:

[President] Andrew Johnson repeatedly referred to himself as such in presidential proclamations, members of Congress both during the 39th Congress that ratified the Fourteenth Amendment and during Johnson’s impeachment several years later repeatedly referred to the President the same way, and earlier presidents in the Nineteenth Century were referred to the same way.

But such evidence was outweighed, in her view, by arguments Trump made about “five” Constitutional provisions which, she felt supported his reading of the Section. (It’s really four provisions, but she draws two separate inferences favorable to Trump’s position from one of them.)

The first is the Appointments Clause, Article II, Section 2, Clause 2, which provides that the president “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.”

For what it’s worth, this argument seems singularly weak to me. If the framers had believed the president was an officer, what were they supposed to write here: “He shall appoint … all other officers except himself”? That would have been bizarre. Obviously, the president doesn’t need to appoint himself.

The second provision cited is the Impeachment Clause: Article II, Section 4. This is a weightier argument. That clause provides that “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” (Italics added.) As Judge Wallace writes, the clause “separates the President and Vice President from the category of “civil Officers of the United States.”

The third constitutional provision Wallace cites is the Commissions Clause, Article II, Section 3. It says that the president “shall commission all the Officers of the United States.” (Italics added.) (To me, this suffers from the same problem as the Apportionments Clause argument. How else should the framers have written it? “He shall commission all the Officers of the United States except himself”?)

The fourth and “fifth” constitutional provisions are both the “Oath and Affirmation Clause,” Article VI, Clause 3. That clause provides, in relevant part, that “The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution . . . .” Wallace’s first point with respect to this clause—her fourth point, overall, relating to the constitutional provisions—is that the president isn’t apparently included among “all executive … Officers” because his own oath has been separately provided for in Article II,  Section 1, Clause 8.

Wallace’s second point with respect to the Oath and Affirmation Clause—and fifth overall—is that the oath described in Section 3 (“oath … to support the Constitution”) uses the language of Article VI (“oath … to support the constitution”) rather than the language of Article II (an oath to “preserve, protect and defend the Constitution.”

To be clear, he’s not saying that the language of the presidential oath wouldn’t count as an oath to support the Constitution under Section 3. “The court agrees with Petitioners,” she stresses, “that an oath to preserve, protect and defend the Constitution encompasses the same duties as an oath to support the Constitution.” Nevertheless, she is saying that, “given there were two oaths in the Constitution at the time, the fact that Section Three references the oath that applies to Article VI, Clause 3 officers suggests that that is the class of officers to whom Section Three applies.”

Wallace then concluded: “The Court agrees with Intervenors that all five of those Constitutional provisions lead towards the same conclusion” and that “for whatever reason the drafters of Section 3 did not intend to include a person who had only taken the Presidential Oath.” In a footnote, she observed that Trump appears to be the first president who had not previously taken any other qualifying oath, so the framers’ “omission … may well have been an oversight.” (The voter-petitioners, for their part argue on appeal that, even assuming that “officer of the United States” held some sort of specialized, term-of-art meaning in the 1780s, when these four constitutional provisions were drafted and ratified, that would not prove that such understandings were still current when Section 3 was enacted 80 years later.)

At that point, Wallace acknowledged that “there are persuasive arguments on both sides,” but opined that the law ought [to] err on the side of democratic norms except where a contrary indication is clear.”

On balance, I remain unconvinced. Trump’s arguments use, as professors Baude and Paulsen put it, “a “‘secret code,’ hidden-meanings hermeneutic” to reach an improbable conclusion: “the President and Vice President—alone among constitutional oath-takers—are exempt from Section Three’s consequences for committing treason to that oath.”

Still, in the spirit of respect for Judge Wallace and the scholars and lawyers who convinced her, I will concede that the arguments are not “absurd.”

Just a little far-fetched.