Two conservative law scholars, William Baude and Michael Stokes Paulsen, also foresaw this argument and dismissed it out of hand. “No one denies that the President is an executive branch officer holding executive office,” they wrote. “At the risk of belaboring the obvious: Article II refers to the ‘office’ of President innumerable times. It specifies the length of term for which the President ‘holds his Office,’ certain minimum qualifications for eligibility ‘to that Office,’ what happens upon the President’s removal ‘from Office,’ or inability to discharge ‘the Powers and Duties of said Office,’ and the oath he shall take before entering ‘on the Execution of his Office.’ If the Presidency is not an office, nothing is.”
The two scholars even quoted from the amendment’s ratification debates, where the possible absence of the president from the list of disqualified offices was commented upon. They also discuss the vice president, but that question is not at issue here and is likely secondary to whatever the ruling for the president may be. In terms of conveying the “intent” of an amendment’s framers, the exchange is as clear as one will likely ever find.
Senator Reverdy Johnson of Maryland charged that the language employed was defective because the offices of President and Vice President had inadvertently been omitted from Section Three. The amendment “does not go far enough,” Johnson averred. “I do not see but that any one of these gentlemen may be elected President or Vice President of the United States, and why did you omit to exclude them?” Johnson was complaining that these two officers should be included in Section Three and there was no good reason to omit them. Whereupon Senator Morrill of Maine interrupted: “Let me call the Senator’s attention to the words ‘or hold any office, civil or military, under the United States.’” Senator Johnson promptly, and somewhat sheepishly, retreated: “Perhaps I am wrong as to the exclusion from the presidency; no doubt I am; but I was misled by noticing the special exclusion in the case of Senators and Representatives.”
Wallace appears to have made the very same mistake as Johnson when reading the amendment in the 1860s. She then compounded her error by noting, as if in anticipation of the criticism that she would receive, that she was simply hesitant to remove Trump from the ballot. “To be clear, part of the Court’s decision is its reluctance to embrace an interpretation which would disqualify a presidential candidate without a clear, unmistakable indication that such is the intent of Section Three,” Wallace wrote.