All five sections of the Fourteenth Amendment can be seen as what must have seemed like a last, desperate attempt to retain power in the hands of the Union and prevent a reborn Confederacy from ruling for the next century. Section Three addressed the prospects of Lee and all those who served the Confederacy. The old Southern leadership, which had enjoyed federal office until 1861, then fought the United States until 1865, was not coming back; it was barred from state or federal office. No court and no president could disturb this proscription—only a two-thirds vote of both houses of Congress could restore the right to public office.
Does that disqualification apply to former President Donald Trump? After 29 pages of close reading and factual findings to establish that Trump incited and engaged in an insurrection, Wallace concludes in nine brisk pages that it doesn’t matter because Section 3 doesn’t apply to former or future presidents. She writes that there is “scant evidence” on the matter and that she is “unpersuaded that the drafters intended to include the highest office in the Country in the catchall phrase ‘office . . . under the United States.’”
At first glance, this seems absurd. There is scholarly discussion about whether the Constitution names the president as a “civil officer” or accords them unique status as the source of appointment of civil officers and commanders of military ones. And since this question has arisen in other contexts, that ambiguity must, the argument runs, apply to Section 3 as well. To reach that conclusion, however, one must pound hard on some rudimentary evidence and disregard powerful evidence in the other direction. The text includes senators and representatives in its disqualification but does not say “President.” Instead, it applies to those who “hold any office, civil or military, under the United States.” It also disqualifies former rebels from serving as electors; thus, the argument runs there was no need to disqualify a former rebel from being president since loyal electors wouldn’t elect him.