Thread by @judgeluttig

There is simply no basis in constitutional interpretation, reason, or logic for concluding from the constitutional fact that the president nominates and appoints “Officers of the United States” under Article II, Section 2, Clause 2, that the president is not

“an officer of the United States” for purposes of the Disqualification Clause of Section 3 of the Fourteenth Amendment. Such is constitutional non sequitur. Under the Constitution, the president holds the “Office of the President of the United States.”

He is unquestionably an “officer of the United States,” even if he is not an “Officer of the United States” for purposes of the Appointments Clause. The fact that the president is elected, not appointed, and therefore is not an “Officer of the United States”

for purposes of the Appointments Clause, does not ipso facto render him not an “officer of the United States” for purposes of the Disqualification Clause. Not only is there no reason to think that the term in the two different clauses would have the same meaning,

there is every reason to believe that the notable, but never noted, differently capitalized terms “Officers of the United States” in the Appointments Clause and “officers of the United States” in the Disqualification Clause would have different meanings.

Moreover, there is every reason to believe that the term in the Disqualification Clause would have a broader meaning, given that clause’s purpose, than the narrower and more specific meaning of the term in the Appointments Clause.

That the two terms would have different meanings, thus obviating the absurd result that would otherwise obtain were one to read the term in the two different clauses identically, would seem obvious,

given that the two clauses became parts of the Constitution at entirely different times in the Constitution’s history and were included in the Constitution for vastly different and totally unrelated purposes.

The Appointments Clause was in, and essential to, the original Constitution in 1787, while the Disqualification Clause of the Fourteenth Amendment was not added to the Constitution until 1868, in answer to the specific post-Civil War concern that confederate officers,

having previously taken the oath to support the Constitution, would engage in insurrection or rebellion against that Constitution and thereafter seek the highest offices in the United States.

It defies belief that the Framers of the Fourteenth Amendment intended to exclude from the ambit and reach of Section 3 a former president who engaged in an insurrection or rebellion against the Constitution the first time that he was president.

Not only does the text of Section 3 not permit of such an absurd result, it forecloses it.