The Catch-22 That Could Force Trump To Choose in Georgia Between Disqualification and Federal Court

A catch-22 is emerging in respect of President Trump’s trial strategy in Georgia that could, even at this early stage, force a fateful choice — whether to fight for removal to federal court, or against disqualification on the basis of the 14th Amendment, which bars from office anyone who engaged in “insurrection or rebellion” against America. This paradox is coming to a head as the position that Mr. Trump is constitutionally disqualified from serving as president on account of his role in the aftermath of the 2020 election is gaining traction among legal sages on both the right and the left. At the same time, the prospect of a jury pool drawn from Fulton County, Georgia can only make federal court that much more appealing for Mr. Trump. At the core of the conundrum is a phrase, “officer of the United States,” that appears in both the disqualification clause and federal law governing removal. In a prosecutorial paradox, by claiming in his campaign for removal to federal court that the president is an “officer of the United States,” Mr. Trump could concede the designation for disqualification. Is the president an “officer of the United States”? The Supreme Court has tended to think not. In 2010, Chief Justice Roberts observe that the “people do not vote for the ‘Officers of the United States.’” Rather, Article II ordains that the president “shall appoint” a host of officials, including these officers. It also says he “shall Commission all the Officers of the United States.”If the president appoints them and commissions them, how can he be one of them? The Constitution entrusts the president with the ability to “Commission all the Officers of the United States.”Elsewhere, in the Impeachments Clause, “all civil Officers of the United States” are listed separately from the president and vice president. Justice Joseph Story, in his 1833 “Commentaries on the Constitution,” explains that those two offices are “enumerated, as contradistinguished from, rather than as included in the description of, civil officers of the United States.”That consensus, though, was disturbed, if only in dicta — a non-binding side comment — by Judge Alvin Hellerstein’s ruling on Mr. Trump’s request that his New York criminal case be removed to federal court. Judge Hellerstein denied that request, reasoning that “hush money paid to an adult film star is not related to a President’s official acts.” The octogenarian jurist, though, held that the “President should qualify as a ‘federal officer’ under the removal statute.” While Judge Hellerstein notes that the “proposition is dictum, unnecessary for the decision that I reach,” it could be considered by a judge of the United States District Court of the Northern District of Georgia. So far, though, only Mr. Trump’s former chief of staff, Mark Meadows, has filed for removal. If Mr. Trump follows suit, he would be forced to argue that he was an “officer of the United States” — there is no other path to removal. By doing so, though, he would put himself squarely in the ambit of the 14th Amendment. That clause blocks from office an “officer of the United States” who has “engaged in insurrection or rebellion” or “given aid or comfort” to America’s enemies.Disqualification is not part of Special Counsel Jack Smith’s purview. Nor, for that matter, is it on District Attorney Alvin Bragg’s agenda, or Ms. Willis’s. They can put him behind bars, but not block him from serving as president. That maneuver, two professors, William Baude and Michael Paulsen argue, is crowd-sourced — the clause is “self-executing,” meaning it is automatic, and can be enforced by nearly anyone. A law review article from 2011, by Seth Tillman, could provide a path for Mr. Trump to claim the role of an “officer” for purposes of removal but disclaim it for disqualification. Such an exercise would have to delve into linguistics just as much as law. Such constitutional circumlocutions were used by Chief Justice Roberts in suggesting that Obamacare is and is not a tax. Mr. Tillman argues that that the constitution’s reference to officer could mean different things in different places, He observes that the “stretch of time” between the ratification of the Constitution in 1789 and the adoption of the 14th Amendment in 1868 suggests that is “hardly surprising that in the post-bellum epoch new meanings might have accrued to older language.”

The Catch-22 That Could Force Trump To Choose in Georgia Between Disqualification and Federal Court

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