[This post is co-authored with Professor Seth Barrett Tillman]
After the 2020 Presidential Election, we thought that we were done with pressing debates with a litigation-focus about the Constitution's "office"- and "officer"-language. The Emoluments Clauses litigation, which stretched for the entirety of President Trump's four-year term, would be dismissed as moot. And, we could return to our regularly-scheduled scholarly pursuits. But then, January 6 happened. That day, we both immediately realized that Section 3 was on the table. Like the Groundhog Day, or The Godfather Part III, we feared that we would be dragged back into the debate about whether the President was an "Officer of the United States" or held an "Office under the United States." Our fears were well founded.
We started writing on the topic on January 7, and published our first blog post in the wee hours of January 8. And on January 20, we published our first post arguing that Trump was not an "Officer of the United States" for purposes of Section 3. You'll see that the arguments we raised in that post are generally consistent with the positions we've advanced before the United States Supreme Court and with those advanced by Trump's counsel.
