Expert: “Treasure trove” of documents debunks Trump claim that president isn’t an “officer” of US

Former President Donald Trump on Wednesday asked the Supreme Court to reverse the Colorado Supreme Court's decision to exclude him from the state's 2024 ballot based on the "insurrectionist clause" of the 14th Amendment.

His legal team argued that if the ruling stands, it would “mark the first time in the history of the United States that the judiciary has prevented voters from casting ballots for the leading major-party presidential candidate." 

The Colorado Supreme Court based its ruling on a post-Civil War provision of the Constitution, which bars anyone who "engaged in insurrection or rebellion" from holding public office. The landmark decision marked the first time in history that the disqualification clause has been used to render a presidential candidate ineligible for the White House. 

With the Supreme Court under intense pressure to resolve the issue of whether Trump can be disqualified from holding public office, this case poses several unique legal questions. Two of the central issues involve settling whether the language in the constitutional provision applies to individuals running for president and who gets to decide whether someone engaged in insurrection.

“In our system of ‘government of the people, by the people, [and] for the people,’ Colorado’s ruling is not and cannot be correct,” Trump’s lawyers wrote in the filing. “This Court should grant certiorari to consider this question of paramount importance.”

His team argued that the court should "return the right to vote for their candidate of choice to the voters."

The state's highest court overturned a prior ruling in which a judge asserted that while Trump had engaged in insurrection by inciting a riot at the Capitol, the former president is exempt from the insurrection clause of the 14th Amendment, noting that it explicitly lists all federal elected positions except the presidency. The state court had already put its decision on hold allowing Trump to remain on the ballot if he appealed. The Colorado Republican Party had already appealed the state court's opinion to the Supreme Court.

Trump has also appealed a similar decision to a Maine state court, which prohibited him from the primary ballot under the same constitutional provision in question in the Colorado case. Likewise, the decision could make its way to the Supreme Court. 

“I expect that the Colorado decision will affect all the cases being raised on this issue,” Laurie Levenson, a law professor at Loyola Marymount University, told Salon. “I don’t think the Supreme Court wants to handle this issue in a piecemeal fashion.” 

As Trump's filing thrusts this explosive case into the nation's highest judicial body, a Supreme Court with a 6-3 conservative majority – including three justices appointed by Trump himself – is poised to influence a broader initiative to disqualify the GOP presidential front-runner from other state ballots in the lead-up to the 2024 election. 

Citizens for Responsibility and Ethics in Washington, the government watchdog group that brought the ballot challenge in Colorado, said it has already requested that the  ourt “move quickly” to provide voters the answers they need about this “urgent question."

Legal experts remain divided on how quickly the justices will rule on the matter and how they may ultimately reach a final decision.

But while the big question about whether or not Trump is eligible to be on the ballot is of significant importance, it's also just as imperative that the Supreme Court answer that question in the right way, James Heilpern, practicing appellate attorney and a senior fellow at BYU Law School, told Salon.

Several examples show that both at the time of the Founding and the ratification of the Fourteenth Amendment, the term "officer of the United States" clearly encompassed the presidency, Heilpern pointed out, referring to his research.

These include an act of Congress that specifically identifies the president as an officer of the United States and presidential proclamations that specifically identify the president as the "chief executive officer of the United States" or "chief civil executive officer of the United States.”

In his brief to the Colorado Supreme Court, Trump stated that “despite the many words and citations that treat the President as an officer not one authority holds that the President is an officer of the United States no case, no statute, no record of Congressional debate, no common usage, no attorney general opinion." 

However, Heilpern’s research suggests otherwise. The Postal Act of 1799, for example, specifically identifies the president as an officer of the United States. The language clearly states which “officers of the United States” should be granted a franking privilege – the ability to send mail by their signature rather than by postage – listing both the president and vice president as officers of the United States.

There are also several presidential proclamations written by President Andrew Johnson, who was in office during the drafting and ratification of the 14th Amendment. In these proclamations, he referred to himself as either the "chief executive officer of the United States" or the "chief civil executive officer of the United States," Heilpern explained. 

In their research, Heilpern and co-author Michael Worley found a “couple of instances” in the impeachment trial of Johnson where the president is “implicitly or explicitly” referred to as an “officer of the United States.”

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“The argument that the president is not an officer of the United States is based on two assumptions,” Heilpern said. “First, several scholars have argued that the term ‘officer of the United States’ is a term of art. In other words, they're arguing that the term officer of the United States, electively as an entity, means more than the sum of its parts.”

But from analyzing a “treasure trove” of documents that were produced at the time of the founding, the researchers learned that the phrase “officer of the United States” was not being used as a term of art. Instead, i​​t was being used “simply to designate any old federal official.”

“The term ‘officer of the United States’ in the 1789 Constitution is not a term of art,” Heilpern said. “It thus applies to all ‘officers of the United States,’ as a standard textualist interpretation of the phrase implies. There is no doubt that the person who holds the office of President of the United States becomes an officer of the United States when the person takes the Presidential Oath. Donald Trump was an officer of the United States.”

For the Supreme Court to claim otherwise, would be a “bad way” to resolve this case, he added.

In general, the court is “likely” to rule for Trump, but not decide the issue of insurrection, David Schultz, professor of political science at Hamline University, told Salon. 

“It will argue that either the insurrection clause is not self-executing or it does not apply to the president or that the clause only applied to factors around the Civil War,” Schultz predicted.

Trump’s legal team has argued that even if the provision could be applied to the former president, he did not participate in insurrection on Jan. 6, referencing a lengthy history of political protests that escalated into violence.

This may be their “best argument,” Levenson said. It is unclear what has to be proved, and how, to show the former president engaged in insurrection since Trump has not been criminally charged with this crime, leaving him room to argue he did not engage in such behavior.

“I think the historical record shows that this question of whether the president is an officer of the United States isn't a viable avenue for the Court to avoid the thornier – and frankly much more important issues – of whether the Fourteenth Amendment is self-executing and whether the president's actions on January 6 qualify as insurrection," Heilpern said.