Officers of the United States: Neither the President nor Vice President are Officers of the United States

[JAL]

Mark W. Smith discusses exactly why President Trump is not subject to the 14th Amendment . . . and cites a SCOTUS decision to back up what I stated regarding POTUS and VPOTUS not being "Officers of the United States", and then goes on to cite other case law. He's verbose, but bear with him.

For reference:
The SCOTUS case Mark Smith cites regarding defining "Officer of the United States" from 13 years ago . . .

2010 Free Enterprise Fund v. Public Company Accounting Oversight Board (PCAOB)
https://en.wikipedia.org/wiki/Free_Enterprise_Fund_v._Public_Company_Accounting_Oversight_Board

The majority decision was written by Chief Justice John Roberts. The case isn't 14th Amendment related. It concerned the Securities and Exchange Commission (SEC), its members appointed by the President, confirmed by Congress, etc. They're Officers of the United States. The PCAOB is a Board under the oversight of the SEC that was set up under the 2002 Sarbanes-Oxley Act to oversee corporate accounting practices. Its members are also appointed by the President, confirmed by Congress, etc. They're also Officers of the United States. In several sections of its decision, John Roberts definitively defines precisely what constitutes an "Officer of the United States". The decision and its dicta are lengthy, diving into the relationship between the President with the SEC, and then the POTUS relationship with the PCAOB under SEC control and supervision. I don't recommend reading it. If interested, search for "Officer of the United States" and/or "Officer" in the decision to find the sections relevant to the 14th Amendment and the SCOTUS case about to be heard in early February. I have to give Mark Smith considerable credit for finding and/or knowing about this case. Something one would have to do legal clerk research and Shepardize to find using a Sherpardizing Service. It's what the law clerks sometimes get paid the big bucks for (eventually).

 

[jamil]

Huh. I google Shepardizing service and top hits are laundry services? Lol. In fairness, I only highlighted it in the post and used the lookup feature. So not actually google.

 

[JAL]

Huh. I google Shepardizing service and top hits are laundry services? Lol. In fairness, I only highlighted it in the post and used the lookup feature. So not actually google.

"Shepardizing" is the use of a research index or service to look up relevant case law to what you're working on and the cases you're going to cite to support your claim and position. Before citing a case reference as precedence for something, it's good practice to see how that case was cited in the past, and especially if it's been overturned later. It helps prevent embarrassment or worse yet, being trounced by an opposing counsel who knows the case you just cited was overtaken and declared "bad law" by a newer one. An example would be citing SCOTUS 1896 Plessy v. Ferguson as having any legitimate precedence when SCOTUS 1954 Brown v. Board of Education resoundingly overturned it. More contemporary would be attempting to cite the SCOTUS 1973 Roe v. Wade decision.

From Cornell Law School:

To Shepardize a citation is to ascertain the subsequent treatment of a legal decision, thus putting its precedential value in a complete context. The term originates from the common historical use of Shepard’s Citation Service to track the treatment of specific decisions.

Derived from a dude whose last name was "Shepard" that established a service to help research case law.

 

[jamil]

"Shepardizing" is the use of a research index or service to look up relevant case law to what you're working on and the cases you're going to cite to support your claim and position. Before citing a case reference as precedence for something, it's good practice to see how that case was cited in the past, and especially if it's been overturned later. It helps prevent embarrassment or worse yet, being trounced by an opposing counsel who knows the case you just cited was overtaken and declared "bad law" by a newer one. An example would be citing SCOTUS 1896 Plessy v. Ferguson as having any legitimate precedence when SCOTUS 1954 Brown v. Board of Education resoundingly overturned it. More contemporary would be attempting to cite the SCOTUS 1973 Roe v. Wade decision.

From Cornell Law School:

Derived from a dude whose last name was "Shepard" that established a service to help research case law.

Well, yeah, I did come across the legal definition, but I thought it was funny the top hits for a legal term on the lookup was laundry.

 

[JAL]

Well, yeah, I did come across the legal definition, but I thought it was funny the top hits for a legal term on the lookup was laundry.

Looking an accurate definition, I've been there as well.

 

[Hawkeye]

Well, yeah, I did come across the legal definition, but I thought it was funny the top hits for a legal term on the lookup was laundry.

"Shepardizing" is a term I learned in hte early stages of law school. Back in the Dark Ages of hands-on paper, hard copy research (c.a. 1977), a publisher called Shepard or Shepards used to publish lists of case citations. Budding law students were cautioned to "shepardize" any case they had found in the massive volumes of reported cases lest they later be told it had been overturned or otherwise criticized by judges in later reported cases. Sometimes, when you read a "shepardized" case, you actually found more appropriate support for your position. Aah, yes! THE GOOD OLD DAYS OF LEGAL RESEARCH!

N.B. - this was about the time that LEXIS was making inroads into the legal research scene. It was an expensive, pay-per-use, electronic on-line data base of reported cases. There was considerable speculation that a new term, "LEXISize" would enter the legal research lexicon to replace or supplant "shepardize".

LEXIS was expensive enough that we were cautioned not to read the actual cases on LEXIS but to sopy the citation and return to the stacks to read the case.

 

[chipbennett]

For reference:
The SCOTUS case Mark Smith cites regarding defining "Officer of the United States" from 13 years ago . . .

2010 Free Enterprise Fund v. Public Company Accounting Oversight Board (PCAOB)
https://en.wikipedia.org/wiki/Free_Enterprise_Fund_v._Public_Company_Accounting_Oversight_Board

The majority decision was written by Chief Justice John Roberts. The case isn't 14th Amendment related. It concerned the Securities and Exchange Commission (SEC), its members appointed by the President, confirmed by Congress, etc. They're Officers of the United States. The PCAOB is a Board under the oversight of the SEC that was set up under the 2002 Sarbanes-Oxley Act to oversee corporate accounting practices. Its members are also appointed by the President, confirmed by Congress, etc. They're also Officers of the United States. In several sections of its decision, John Roberts definitively defines precisely what constitutes an "Officer of the United States". The decision and its dicta are lengthy, diving into the relationship between the President with the SEC, and then the POTUS relationship with the PCAOB under SEC control and supervision. I don't recommend reading it. If interested, search for "Officer of the United States" and/or "Officer" in the decision to find the sections relevant to the 14th Amendment and the SCOTUS case about to be heard in early February. I have to give Mark Smith considerable credit for finding and/or knowing about this case. Something one would have to do legal clerk research and Shepardize to find using a Sherpardizing Service. It's what the law clerks sometimes get paid the big bucks for (eventually).

Yep. I linked and quoted Roberts from Free Enterprise somewhere up-thread.

 

[jamil]

"Shepardizing" is a term I learned in hte early stages of law school. Back in the Dark Ages of hands-on paper, hard copy research (c.a. 1977), a publisher called Shepard or Shepards used to publish lists of case citations. Budding law students were cautioned to "shepardize" any case they had found in the massive volumes of reported cases lest they later be told it had been overturned or otherwise criticized by judges in later reported cases. Sometimes, when you read a "shepardized" case, you actually found more appropriate support for your position. Aah, yes! THE GOOD OLD DAYS OF LEGAL RESEARCH!

N.B. - this was about the time that LEXIS was making inroads into the legal research scene. It was an expensive, pay-per-use, electronic on-line data base of reported cases. There was considerable speculation that a new term, "LEXISize" would enter the legal research lexicon to replace or supplant "shepardize".

LEXIS was expensive enough that we were cautioned not to read the actual cases on LEXIS but to sopy the citation and return to the stacks to read the case.

That's some good background. I saw an online legal definition, but it did not go into how it became known as that. I thought "shepardizing" was based on a verb, not a pronoun.

 

[IN New Guy]

Officer of the United States:
Why neither the President nor Vice President are “Officers of the United States”
What is one and how does a person become one? There is an immense amount of misinformation and disinformation about this as it falls under Section 3 of the 14th Amendment covering disqualification from holding elected or appointed offices in the United States. The lies claiming the President is an "Officer of the United States" have become endless, twisting legal and constitutional definitions into entangled spaghetti bowls of convoluted, alleged logic to justify their predetermined conclusions.

The United States is a Sovereign State with all the internationally recognized powers and responsibilities of a Sovereign State. As a Sovereign State, it is not subject to rule or governance by any other Sovereign State. It is its own entity, entitled to make its own decisions and to act on its own as it sees fit to do so. Should it do something dastardly, such as commit War Crimes, its leadership and those involved in such acts can eventually be held accountable by international standards. As a Sovereign State the United States actually has Dual Sovereignty. Each state within the United States has its own, albeit limited, Sovereignty and Sovereign powers. Primarily under the 10th Amendment, as now limited by Equal Protections portions of the 14th Amendment, those Sovereign Powers not retained by the U.S. Constitution for the Federal Government are Sovereign Powers of each state. Beyond stating that a person can be tried for the same crime in both a Federal and a State Court (big surprise to some defendants) I won’t dive into the Dual Sovereignty further. It's not relevant here.

As a Sovereign State, it has two Sovereigns, a President and a Vice President, with their Sovereign Powers enumerated in Article II of the Constitution. The President, in Section 1, Clause 1, is vested with powers of being the Executive. In other words, the President is the nation’s Head of State. The President’s Oath of Office is specifically enumerated in Section 1, Clause 8, and it is unique. Other Oaths of Office may have some similarity, but they are distinctly different and they are not enumerated in the Constitution.

Article II, Section 2 enumerates their powers. Clause 2 empowers the President to make appointments to various Offices within the Executive Branch and to the Article III Courts, with the Advice and Consent of the U.S. Senate approving them. After enumerating specific Federal Offices, the clause continues with:
“ . . . and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law . . .”

The President appoints “Officers of the United States”, with confirmation of such appointments made by the Senate. This is in keeping with the generally recognized international concept of someone being an “Officer of [fill in name of Sovereign State]”. The Sovereign delegates a portion of his Sovereign Powers to a person appointed to carry them out on his behalf. That delegation is nearly always embodied in a Commission from the Sovereign, or an equivalent document. In addition, that individual is limited to exercising only those Sovereign Powers specifically delegated. Section 3 specifically requires the President to Commission all "Officers of the United States" with a Commission document. This requirement is so there is no confusion or ambiguity as to whether a person is or is not an "Officer of the United States". This is a Magisterial Duty, not a Discretionary one. It is required to be executed. The President and Vice President do not appoint themselves, delegate Sovereign Powers to themselves, or Commission themselves with Sovereign Powers that they already possess as Sovereigns per the Constitution. It would be incongruous, illogical and ludicrous for a Sovereign President to delegate his own Sovereign Powers to himself self-referentially, and issue a Commission to himself as constitutionally required, and taking an additional Commissioning Oath, to act on his own behalf, with the Senate having to confirm it. Thus, neither the President, nor the Vice President are “Officers of the United States” by the definition of what constitutes one in Article II, Section 2, Clause 2 of the Constitution, and how one becomes an Officer of the United States by Presidential Appointment with “Advice and Consent” of the Senate (i.e. Senate Confirmation). An Officer of the United States attempting to overstep the Sovereign Powers delegated to them is patently illegal, and an excellent way under some circumstances to end up in prison. Both the President and Vice President are "Sovereigns" with "Sovereign Powers" as enumerated, and are not "Officers of the United States".

I am an “Officer of the United States” and will be to the day I die. A Retired Commissioned Officer retains the duties and responsibilities of an Officer of the United States for life, and continues to be subject to the Uniform Code of Military Justice (UCMJ) for life. Charges under the UCMJ are exceptionally rare. They’re usually pursued by a Federal Prosecutor in a Federal Court, but a few have been charged and tried under the UCMJ over the years. I repeatedly had the knife and fork training about what is and is not an “Officer of the United States” and the limits of the Sovereign Powers delegated to me by the President to act on his behalf within the Armed Forces (deriving from the President’s Sovereign Power as Commander in Chief of the U.S. Armed Forces). It was required content in every service school I attended over the years. Warrant Officers (W-1 Grade), Non-Commissioned Officers, and Enlisted Personnel do not have those delegated powers as outlined (primarily) in Title 10 of the United States Code. My Commission delegating those Sovereign Powers to me was issued and signed by the President of the United States. My appointment to each rank was confirmed by the U.S. Senate.

One need not consider whether or not January 6th 2021 was a riot or an insurrection, or whether the President incited it, or whether the 14th Amendment is "Self Executing" absent a Congressional Act or a Federal Judicial Judgement. Application of the 14th Amendment to a former President or Vice President fails and is completely mooted by the fact the President and Vice President are Sovereigns, not "Officers of the United States" or any other appointed or elected individual enumerated within the Disqualification Clause of the 14th Amendment. Note that Joe Biden was a U.S. Senator for many years. As such, he is subject to the Disqualification Clause of the 14th Amendment. One could argue endlessly about whether he's disqualified from office, and I won't do that here. It would not be fruitful to the purpose of this posting.

JAL: like you, I have always maintained my commission and my oath to the Constitution has no expiration date. I'm 70 years of age, long retired, and not in the shape I used to be, but the legal, moral, patriotic commitment is still there.

 

[Hawkeye]

That's some good background. I saw an online legal definition, but it did not go into how it became known as that. I thought "shepardizing" was based on a verb, not a pronoun.

It's why I'm i"m a member in good standing of the Keepers Of Odd Knowledge Society, and often referred to as an Old Kook.

Also, shepardizing is based on a noun, Shepard (or Shepard's), not a pronoun. (That's the Old Kook in me coming out!)

 

[Ingomike]

Could be seeing a determination on this topic soon…

 

[KG1]

Could be seeing a determination on this topic soon…

I've seen Dershowitz make the argument that the 14th sec 3 specifically mentions a Senator or Representative or electors of the POTUS and VP but not the POTUS or VP in the same manner as they did the others. Now some say that an "officer of the US" is a catchall to include the POTUS and VP.

His argument goes on to say that if the framers intended the 14th sec 3 to apply to the POTUS and VP why didn't they specifically mention them as a party subject to the article along with the Senate or Representatives and electors?

In essence Dershowitz was saying by not specifically doing so they excluded the POTUS, and the VP and thus the "officer" argument was also not applicable in pertaining to them because they were not mentioned as such.

 

[chipbennett]

I've seen Dershowitz make the argument that the 14th sec 3 specifically mentions a Senator or Representative or electors of the POTUS and VP but not the POTUS or VP in the same manner as they did the others. Now some say that an "officer of the US" is a catchall to include the POTUS and VP.

His argument goes on to say that if the framers intended the 14th sec 3 to apply to the POTUS and VP why didn't they specifically mention them as a party subject to the article along with the Senate or Representatives and electors?

In essence Dershowitz was saying by not specifically doing so they excluded the POTUS, and the VP and thus the "officer" argument was also not applicable in pertaining to them.

People who say that apparently can't read the Constitution, because "Officers of the United States" has very clear, explicit meaning in the Constitution - as discussed here in this thread.

 

[JAL]

One of the unusual aspects of Trump is having never held any other political office covered by the Amendment. I believe all others have, including Truman, who was a commissioned officer in the U.S. Army -- making him a former Officer of he United States. IMHO -- and there's zero historical documentation on the Congressional debate during the drafting of the 14th Amendment -- they never envisioned application of it to someone who had solely been a POTUS or VP. Trump's VP, Pence, had been the Indiana Governor (among other offices), requiring he take an Article VI Oath.

 

[KG1]

People who say that apparently can't read the Constitution, because "Officers of the United States" has very clear, explicit meaning in the Constitution - as discussed here in this thread.

It doesn't make any sense for the framers not to have intentionally mentioned the POTUS and VP as a party subject to the provisions of the 14th sec 3 along with the others specifically mentioned only to have them fall into the catchall 'officer" provision. If they would've intended to include them then I think they would have specifically said so from the onset.

 

[JAL]

It doesn't make any sense for the framers not to have intentionally mentioned the POTUS and VP as a party subject to the provisions of the 14th sec 3 along with the others specifically mentioned only to have them fall into the catchall 'officer" provision. If they would've intended to include them then I think they would have specifically said so from the onset.

Indeed . . .
The enumerated offices are all elected officials. Then the language following specifically states: "Officers of the United States", which has a very well defined constitutional definition: (1) Appointed by POTUS, (2) Confirmed by Senate, (3) Takes Article VI Oath of Office, and (4) Issued Commission by POTUS. Thus it's clear to me the framers of Section 3 enumerated elected officials followed by Presidential Appointees who met all of the other three conditions I outlined. Although the VP takes an Article VI Oath, along with all the other enumerated elected officials, none of them are appointed by POTUS, confirmed by the Senate, or issued a POTUS commission. Little known fact: all the Article III justices and judges appointed by POTUS and confirmed by the Senate are issued commissions after taking their required Article VI oath. So are ambassadors. All cabinet secretaries and numerous deputy and under secretaries down a few levels of their hierarchy go through 1-4 outlined above. Some of this was discussed today in bits and pieces during the oral arguments regarding "Officer of the U.S." with the Colorado lawyer and Solicitor General attempting to conflate being an official (elected) with being an appointed Officer of the U.S.

 

[JAL]

Indeed . . .
The enumerated offices are all elected officials. Then the language following specifically states: "Officers of the United States", which has a very well defined constitutional definition: (1) Appointed by POTUS, (2) Confirmed by Senate, (3) Takes Article VI Oath of Office, and (4) Issued Commission by POTUS. Thus it's clear to me the framers of Section 3 enumerated elected officials followed by Presidential Appointees who met all of the other three conditions I outlined. Although the VP takes an Article VI Oath, along with all the other enumerated elected officials, none of them are appointed by POTUS, confirmed by the Senate, or issued a POTUS commission. Little known fact: all the Article III justices and judges appointed by POTUS and confirmed by the Senate are issued commissions after taking their required Article VI oath. So are ambassadors. All cabinet secretaries and numerous deputy and under secretaries down a few levels of their hierarchy go through 1-4 outlined above. Some of this was discussed today in bits and pieces during the oral arguments regarding "Officer of the U.S." with the Colorado lawyer and Solicitor General attempting to conflate being an official (elected) with being an appointed Officer of the U.S.

Additional information about the structure of Section 3 regarding disqualified persons who had taken oaths of loyalty to the U.S. -- in the context of its 1868 ratification -- prior to the Civil War. It's in three distinct parts:

• Prior Elected Federal Officials: Prior members of Congress (Representatives and Senators prior to Civil War)
• Prior POTUS Appointed Federal Officials: Prior Officers of the United States
• Prior State Elected and Appointed Officials:
  • Prior members of State Legislatures
  • Prior state executive officers and judges which presumably includes former state governors from its wording

The federal and state offices prohibited persons are banned from holding clause precedes the disqualified persons clause. Thus some of the questions of the justices during the oral arguments. Had Section 3 been written to cover POTUS and VP, they would have been enumerated along with "Member of Congress". The rationale for the ratified Section 3 text omitting them is lost to history. Most likely that no former POTUS or VP had been part of the Confederate Government or an official in any of the Confederate state governments. At the federal level, Representatives, Senators, and POTUS appointees, including cabinet secretaries, federal judges, ambassadors, and military officers, had been part of the Confederate and Confederate State governments, or commissioned officers in the Confederate Army and Navy. The context of Section 3 in the 14th Amendment was preventing Confederate Government office holders and military officers from contaminating the post Civil War federal and state governments. This intent was largely set aside by an Amnesty Act, and later by the repeal of the Federal Law enforcing it in accordance with Section 5. The only thing left is the Insurrection criminal statute (US Code Title 18, Section 2383) which in itself prohibits holding any federal office upon conviction.

 

[Ingomike]

@JAL I would love your thoughts on this brief, and any others following along that have an opinion.

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www.supremecourt.gov

 

[JAL]

@JAL I would love your thoughts on this brief, and any others following along that have an opinion.

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www.supremecourt.gov

First . . . INAL

I've only browsed through it. The brief is dense legalese loaded with citations. The current authority for appointing a Special Counsel, after the Congressional Act for them expired in 1999, is contained in 28 C.F.R. §§ 600.1–600.10 (aka the "Janet Reno Rules"). You can read these here (link goes to Table of Contents for them which has links to the sub paragraphs):

https://www.ecfr.gov/current/title-28/chapter-VI/part-600?toc=1

I've only browsed through them as well, and would need to continue letting my brain grind on them for a while. The gist of the brief questions the scope and authority of Jack Smith being wielded in his appointment as a Special Counsel without a Congressional Act to authorize it, and argues that it requires one. A normal US Attorney is appointed by the President and confirmed by the Senate. There are 93 of them covering the 94 Federal Court Districts. They have Assistant U.S. Attorneys (AUSA) who generally do the actual criminal prosecutions. The appointed US Attorney basically manages the office for that Federal Court District.

As I understand what I've quickly read, the arguments that will be made in this challenge will center around whether or not 28 C.F.R. §§ 600.1–600.10 is sufficient on its own. or if a Congressional Act is required to enable what Jack Smith is doing. An interesting part dives back into the Special Counsel (appointed under different laws) during the Nixon investigation and notes that a SCOTUS decision back then never addressed issues being raised in this brief.

That's the best I can do at this time. We really need a Mark W. Smith to unravel the challenge being made to Jack Smith's appointment and authority. I've not been broadly trained or schooled in constitutional law, and am certainly not a scholar in it.

 

[JAL]

@JAL I would love your thoughts on this brief, and any others following along that have an opinion.

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www.supremecourt.gov

More remarks (again, INAL) . . .

The brief is basically arguing:
Jack Smith, a private citizen, was appointed to the same level with the same power and authority as a U.S. Attorney, which requires an appointment by the President and Confirmation by the Senate, i.e. must be made an Officer of the United States. Jack Smith was not. At most, he's on par with an Assistant U.S. Attorney (aka AUSA) which would not have the power and authority he's wielding. They draw comparisons with other Special Counsels which were a U.S. Attorney when made a Special Counsel.

Whether this holds up under SCOTUS review remains to be seen. It's a technical argument regarding the Constitution's Appointments Clauses, Federal Law and the Sections in 28 C.F.R. authorizing and outlining the process for appointments of Special Counsels. I've not dived into the case law cited to back up their arguments, nor will I. I wouldn't put money on it one way or the other. SCOTUS must also take it up for a decision.

The entire claim could be mooted if Jack Smith is appointed by POTUS to his Special Counsel position, confirmed by the Senate, issued a Commission, and takes the Article VI Oath of Office. The only snag would be Senate Confirmation which currently would require the Nuke Option bypassing 60 Vote Senate Cloture used for judicial appointments.

Ongoing at the same time is Trump's claim he was acting in his official duties and powers as POTUS, and is therefore immune from all this.