The Most Ridiculous Argument for Keeping Trump on the Ballot

The year is 1858. William Henry Gist—governor-elect of South Carolina—stands before the South Carolina General Assembly to deliver his inaugural address. It’s more than two years before shots will be fired at Fort Sumter, but secession is already on his mind. He speaks of the state’s “enemies in the North” and suggests he might have to “call upon [South Carolina’s] sons for the defense of her rights and institutions.” He alludes to a potential “dissolution” of the “Constitutional Union,” and the need to “unite … the entire South” so that “when we can no longer retain our places as equals in the [United States], we will be prepared to form a more perfect Union under the style and title of the United States—South.”

In short, he makes clear that he’s headed toward becoming an insurrectionist.

When he is through with his remarks, he places his hand on a Bible and takes the oath of office, the one that is spelled out in the South Carolina Constitution: “I do solemnly swear I will be faithful, and true allegiance bear to the State of South Carolina … and that I will, to the best of my abilities, discharge the duties thereof, and preserve, protect and defend the constitution of this State and of the United States: So help me God.” (Emphasis added.)

Now fast-forward 10 years. The year is now 1868, three years after the conclusion of the Civil War. The states have just ratified the 14^th Amendment. While best known as the amendment that overturned the notorious Dred Scott decision and guaranteed Black Americans citizenship and equal protection under the law, the 14^th amendment—specifically Section 3—also limits a certain class of Confederates—men like Gist who had held prominent state or federal offices before throwing their lot in with the Confederacy—from holding public office in the future:

But imagine what would have happened if Gov. Gist—who personally organized South Carolina’s secession convention, signed the state’s Ordinance of Secession, and then served for two years in the state’s rebel government—decided he wanted to run for president. He consults with the brightest legal minds of his time, who suggest that the 14^th Amendment doesn’t even apply to him. After all, the amendment only bars individuals who had “previously taken an oath … to support the Constitution of the United States.” Gist never did that! As part of the South Carolina governor’s oath, he only swore that he would “preserve, protect, and defend” it.

This seems like an argument that the Supreme Court would laugh out of the room, right?

Yet, that is exactly what Donald Trump is arguing at the Supreme Court right now. Last month, the Colorado Supreme Court declared that the former president was barred from holding future office under the 14^th Amendment. The U.S. Supreme Court will hear the case on appeal next month. There are a lot of different facets to the case—including some tricky legal issues such as whether the 14^th Amendment is self-executing and whether Trump’s actions on Jan. 6 rose to the level of an “insurrection.” But as part of his defense, Trump actually argues that “section 3 applies only to those who took an oath to ‘support’ the Constitution of the United States … . The president swears a different oath set forth in Article II, in which he promises to ‘preserve, protect, and defend the Constitution of the United States’—and in which the word ‘support’ is nowhere to be found.”

And he’s not alone! The Colorado Republican State Central Committee made the same argument. As did Sen. Ted Cruz, Rep. Steve Scalise, and 177 other members of Congress. And the Republican National Committee. It’s part of a broader argument that Section 3 does not apply to the president because the president is not an “officer of the United States.”

As lawyers, we have been thinking about the definition of “officer of the United States” for six years. In 2018, we co-authored a brief in the Supreme Court where we compiled linguistic and historical evidence about the meaning of the phrase in 1788. In the intervening years, one of us wrote an additional four articles on the subject, and we recently co-authored a fifth that specifically looks at the meaning of the phrase within the context of Section 3, and whether it extends to the president. Spoiler alert: It does.

As part of that article, we looked specifically at President Trump’s oath argument and found it lacking. Article VI of the Constitution provides that “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.” But our research has shown that there is nothing magical about the word “support.” At the outbreak of the Civil War, several state constitutions spelled out the specific words of the oath said officers in their state would take. The oaths administered in South Carolina, Georgia, and Florida didn’t contain the word “support.” Instead, they mirrored the president’s oath’s language, with officers swearing to “preserve, protect, and defend” it. And the Texas oath went the other direction, with officers merely promising to “faithfully and impartially discharge and perform, all the duties … agreeably to the Constitution and laws of the United States and of this State.” And yet officers who took these oaths and then “engaged in insurrection” were still disqualified under Section 3.

Indeed, in the relatively small window for Civil War–era cases to be litigated, Congress received thousands of petitions from Southerners who understood themselves to be barred from holding office and were asking Congress to remove the disability (which could only be removed by two-thirds vote). To cite just one example: William Francis Durisoe, who served as a probate judge in South Carolina in 1859. As a result, he took that same oath that Gov. Gist took. Yet, he still sent a petition to Congress asking it to remove his disability under the 14^th Amendment. (Congress didn’t act on that petition, leaving Durisoe disqualified, but it did issue a general amnesty four years after the 14^th Amendment was passed.)

What should be clear to any originalist-minded justice is this: The slight variation in the verbiage of the presidential oath of office shouldn’t insulate Donald Trump from the reach of Section 3, any more than it would have Gov. Gist.