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02/20/2021

More from Josh Blackman and Seth Barrett Tillman on the President and "Office[s] under the United States"
Michael Ramsey

At Volokh Conspiracy, Josh Blackman and Seth Barrett Tillman: If Donald Trump is Convicted of Violating 18 U.S.C. § 2383, Will He Be Disqualified From Serving As President?  From the introduction:

... This post focuses on the consequences should Trump be convicted for violating 18 U.S.C. § 2383. (We flagged this statute in our February 3 post on incitement.) § 2383 provides:  

Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States. (emphasis added)

We expect that, by now, readers of this blog are well familiar (if not exhausted) with our arguments concerning the phrase "office . . . under the United States." Prior to 2017, our position about the meaning of this phrase was not widely known, and it had few real-world implications. Yet, we continue to be amused how often Trump-related issues have implicated the phrase "office . . . under the United States." This issue has arisen in debates over the Foreign Emolument Clause, the Impeachment Disqualification Clause, Section 3 of the Fourteenth Amendment, and potentially a criminal prosecution under § 2383. ...

We've written that the phrase "office . . . under the United States" refers to appointed positions in the Executive and Judicial Branches, and also includes appointed positions in the Legislative Branch. This phrase does not extend to elected federal positions, i.e., the President, Vice President, and members of Congress. 

The phrase "office . . . under the United States" is used in several clauses in the Constitution. This language also appears throughout the body of federal statutes, including statutes passed by the First and other early congresses. In our experience, most people simply assume that this language extends to all positions in the federal government—appointed and elected. But that assumption is particularly problematic in the context of statutory disqualification. The Supreme Court and other federal courts have held that congressional statutes cannot add additional qualifications for elected federal positions. Of course, Congress can add statutory qualifications for appointed positions. In other words, Congress can add statutory qualifications to the positions it creates (i.e., appointed federal positions), but Congress cannot add qualifications to positions created by the Constitution (i.e., elected federal positions).

Is a person convicted under § 2383 disqualified from holding an elected federal position? Under settled modern Supreme Court and other federal court precedent, this statute should not be read in that fashion. Indeed, we also think that reading is correct as a matter of original public meaning—at least with respect to the Constitution of 1788. Later in this post, we will address the effect of Section 3 and Section 5 of the Fourteenth Amendment.