Should Trump be constitutionally barred from the presidency?
The U.S. Supreme Court is hearing an appeal of a Colorado court ruling this week that could keep former President Trump off the ballot.
It could profoundly shape the 2024 election — and American democracy.
Today, On Point: Should Trump be constitutionally barred from the presidency?
Mark Graber, Regents professor at the University of Maryland Francis King Carey School of Law
John Yoo, Emanuel Heller professor of law at the University of California, Berkeley.
MEGHNA CHAKRABARTI: On Thursday, the United States Supreme Court will hear oral argument in a case that will have a profound impact on the 2024 presidential election, and longer term on American democracy. The case is Trump v. Anderson. And the question before the court, should Donald Trump be disqualified from the presidency?
Today’s show comes in two parts. First, we’ll hold a kind of miniature oral argument with two legal scholars who have filed ‘friend of the court’ briefs in this case, so that you get a flavor of the kind of argument that will be presented before the justices on Thursday. Then we’ll turn to a historian to look into the past to understand what’s at stake with the country’s future in this case.
So let’s start with Mark Graber. He’s Regents professor at the University of Maryland, Francis King Carey School of Law, one of only seven professors ever to hold that chair. He’s also one of the country’s most prominent experts in constitutional law regarding insurrections. Between the nation’s founding and post-Civil War reconstruction, he filed a brief arguing that the Constitution says Trump should be disqualified from the presidency.
Professor Graber, welcome to On Point.
MARK GRABER: Thank you for having me.
CHAKRABARTI: Also with us is John Yoo. He’s Emmanuel Heller professor of Law at the University of California, Berkeley. He’s filed a brief to the court arguing against disqualification. Professor Yoo is also recognized as one of the nation’s preeminent conservative legal scholars.
He has extensive experience in constitutional and federal law, most notably during the first administration of President George W. Bush and the War on Terror. Whereas Deputy Attorney General in the Justice Department’s Office of Legal Counsel, he authored a memo for the Bush administration arguing that U.S and international law did not protect unlawful combatants from “Enhanced Interrogation techniques.”
Professor Yoo is also a fellow at the Claremont Institute, a group whose mission is to quote, restore the principles of the American founding to their preeminent authority in national life. Professor John Yoo, welcome to you.
JOHN YOO: Thanks. It’s great to be with you.
CHAKRABARTI: First of all, I want to read Section 3 of the 14th Amendment of the Constitution, which is where all the differing legal interpretations lie.
So that section reads, “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.”
Okay, so let’s begin with the first point of contention in the many briefs that have filed, been filed to the court in this case. And Professor Yoo, let me start with you. There’s the simple disagreement over whether or not a president, a former president, qualifies as an officer of the United States in terms of what the Section 3 reads, your argument is?
YOO: Sometimes it helps when interpreting the Constitution to actually look at the text closely first before we get into all the history and precedent and practice. And here I think the text is fairly clear. It has two parts. One, the beginning, the first sentence you read, is what offices are you not allowed to hold?
And then the second part is, what office did you have in the past that disqualifies you for having this new post? So the first sentence, just the list of things you’re not allowed to do, if you had engaged in insurrection and been, had taken oath before. Include, I think it’s pretty precise. Senator, representative in Congress.
So a member of the legislature, elector for president and vice president. And then the phrase you just mentioned, Meghna, any office, civil or military under the United States. Now the Constitution pretty clearly distinguishes between President on the one hand, and an officer of the United States. An officer of the United States … be like a cabinet officer or anyone below cabinet.
He or she might be all the way, be a prosecutor, a line prosecutor in the Justice Department at a U.S attorney’s office. I think that the court has always made clear that the Constitution distinguishes between those two, because the president is not an officer. He’s not, or she’s not appointed.
She’s not, or he’s not picked by the president and confirmed by the Senate, for example. There’s an appointments clause that takes care of that. Instead, the president is elected, in fact, the president and vice president, only people who are elected by the country as a whole. I think the text is even clearer when you dig deeper. Because in the sentence you read Meghna, it says you can’t be an elector for president and vice president.
So in the text itself the 14th Amendment says you can’t be an elector for president and vice president.
YOO: So then why would they leave the word out when they talk about officer of the United States.
CHAKRABARTI: Yeah. Let me turn to Professor Graber for his response on that, because Professor Yoo is right.
There’s no specificity around the word president here. But on the other hand, I also see that, in terms of elected offices, of course, senators and representatives are elected by the people in their state. And I say, I think there’s a lot of let’s say nebulousness around the phrase or “hold any office” in the United States.
So Professor Graber, what are your thoughts?
GRABER: First, please note that the general of the Air Force, which did not exist in 1866, is not mentioned. Cabinet officials are not mentioned. What we do know is every member of the 39th Congress that frames the 14th Amendment said the President was an officer of the United States.
We know that during the discussions and the ratification debates, everyone said, what’s the purpose of the 14th Amendment, Section 3? It is to prevent from holding any office. Anyone who was an officer and participated insurrection, they would have been stunned, startled, would not know what you were talking about if they said there was this weird exception for a president who had never held any office.
Why would anyone in their right mind after all say a federal dog catcher who participates in an insurrection cannot hold an office? But there’s an exemption for the highest office in the land. There, if the highest officer in the land bombs Congress, signs a pact with North Korea to drop an atomic bomb on Washington D.C., that person can still be president.
CHAKRABARTI: Why would anyone, because Textualism and originalism is a very powerful and deeply held legal line of scholarly thinking in this country. And there’s many examples of when there’s nothing else to look at. Perhaps, let me say not nothing else to look at, but it’s trying to divine the intent of the founders, which is the basis upon which the court decides, Professor Graber.
GRABER: Presumably we don’t think the founders were idiots. And so if we have an interpretation which has the founders doing something we think is stupid, that has no reason, we ask, did they mean that? And notice what I said, everybody in 1866 said a president is an office of the United States. So textualism and originalism.
If we take the date when the 14th Amendment was framed and ratified. Textualism and originalism support, including the president, what people may have meant 80 years ago. I think Professor Yoo was wrong about 80 years. But 80 years ago was not the debate. The debate is what would an ordinary person understand by officer of the United States in 1866, and here the historical and textual evidence is overwhelming.
CHAKRABARTI: So let me get professor Yoo to respond to that because I think professor, just to be clear for listeners, we are we are talking about the 14th Amendment as noted, which was not in the original text of the Constitution, right?
It is post-Civil War. So it’s not necessarily, what did Thomas Jefferson, John Adams, et all intend in the original text of the Constitution. It is what did the crafters and the ratifiers of the 14th Amendment intend. So what’s your response to that?
YOO: Actually, I think one way to understand this is there’s a difference between textualism and originalism.
Textualism means looking at the whole text of the Constitution, reading it together, originalism which I have I have to confess, I have joyously engaged in from time to time. Originalism means look at the statements of the people who wrote and ratified the amendment at the time and try to understand what they meant.
But originalism, or this kind of history, should never, I think, overcome what the text itself says. So for example, we would say, what does free speech mean? And we could say what did the founders who wrote the First Amendment mean by that? We start with what does the word in the actual text of the Constitution mean when you read it altogether? This is not some made-up strange approach to interpret the Constitution. It started very early on. Chief Justice John Marshall used that approach when he read the Constitution to allow National Bank now. So what I read, and let me also say, this is a close question. I’m not claiming by any means that this is obvious and clear.
I think both sides here are very good arguments. But I think what you’re hearing here on the other side is an effort to use that history, of which there’s not a lot, because I think everyone has to see that no one really thought about this problem and that the comments about this are rather stray ones.
Is that enough to overcome the text? Because I don’t think it’s obvious. I actually, I don’t, I don’t agree at all that the text allays president into officer of the United States. Instead, repeatedly, the constitutional text makes a difference. They’re impeached differently, they’re appointed differently.
The Supreme Court has said in several opinions recently that the president and officer of the United States are different. This is something actually the justices on the court, they don’t agree on much sometimes these days, but they seem to agree on that principle. Another question then that Mark raises is why would they do that?
It seems so irrational or senseless. One reason you might say, is because the provision already says you can’t be an elector for president or vice president. So the people who wrote the 14th Amendment, as you said, I know this is right after the Civil War, this is the Reconstruction. They might’ve said, we won’t let any Confederates become electors, so they’re not going to pick a Confederate president.
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