Last month, a comprehensive and detailed article by Professors Baude and Paulsen argued that former President Donald Trump is barred from running for the presidency under Section 3 of the Fourteenth Amendment to the Constitution. Not to be outdone, Professors Josh Blackmun and Seth Barrett Tillman presented their counter-argument that Trump remains eligible to run despite Section 3 of the Fourteenth Amendment. Both efforts comprise a remarkable 126 pages of legal examination and assertions. (Baude and Paulsen, Blackmun and Tillman)
The main point of this debate reveals a difference of interpretation over whether the term ‘officer of the United States’ includes the president. This is a question of consequence, because if Trump, in his role as president, is considered an ‘officer of the United States’, he could be barred from running for the presidency again.
Baude and Paulsen contend that the president logically falls under the category of an ‘officer of the United States’. Their interpretation of Section 3 of the Fourteenth Amendment wraps up the president and other government officials into this category, arguing that this was both the straightforward reading of the text and intent of the amendment.
However, Blackmun and Tillman challenge this interpretation with evidence from post-Civil War discussions that suggest people did not consider the president an ‘officer of the United States’. They further argue that there are other provisions in the Constitution that expressly exclude the president and vice president from this category. (New York Times)
Addressing the increasingly polarized debate, Harvard Professor Lawrence Lessig argues against interpreting Section 3 to disqualify Trump, fearing it could lead to an arbitrary and subjective definition of engaging in insurrection under the Constitution. (Slate)
While politicians may exploit this debate for their own agendas, it’s essential for legal professionals to remember that this is ultimately a complex constitutional law question. As we near the 2024 election, the question of Trump’s eligibility to run for president is likely to continue stimulating heated discussions and debates in legal, political, and public arenas.
Mark Herrmann, who spent 17 years as a partner at a leading international law firm and is now deputy general counsel at a large international company, initially brought this debate to the broader public’s attention. He also critically engaged with both sets of legal arguments and brought attention to counterarguments in his work on Above the Law. (Above the Law)