There are many issues that the Supreme Court can address at Thursday’s hearing over Donald Trump’s presidential eligibility. But there’s one that Trump himself focused on in his final reply brief this week: the argument that the president isn’t an “officer of the United States” who’s subject to disqualification under Section 3 of the 14th Amendment.
It’s not a strong claim — and its implications are absurd — but it’s worth understanding heading into the oral argument, because Trump’s counsel apparently thinks there’s something to it. Indeed, he may think that it’s the best shot at staying on the ballot.
As you’ll see from the text of Section 3, it doesn’t specifically mention presidents:
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.
From that absence and the way the term “officer of the United States” is used elsewhere in the Constitution, Trump’s lawyers argue that the disqualification clause therefore doesn’t cover presidents. It would amount to a Trump-specific exception, because every other former president besides George Washington previously swore a constitutional oath in holding state or federal office.
But in the ruling under review, the Colorado Supreme Court rejected that position for four reasons. First, because the normal and ordinary use of the term “officer of the United States” includes the president. Second, because Section 3’s…
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