THE TRUMP DISQUALIFICATION CASE IN FRONT OF THE U.S. SUPREME COURT

On February 8, 2024, the U.S. Supreme Court will oral arguments in Trump v. Anderson- one of the most important constitutional cases in the U.S. history and the highest-profile election-related case since Bush v. Gore in 2000. The case  is on appeal from the Colorado Supreme Court's 4-to-3 ruling on December 19, 2023. In that decision the court ruled that Donald Trump is ineligible to appear on Colorado's presidential primary ballot under Section 3 of the 14th Amendment, known as the "the insurrection clause", because the court found that he engaged in the insurrection at the U.S. Capitol on January 6, 2021. The insurrection clause states: No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Thus according to the Colorado Supreme Court, Trump is constitutionally disqualified from holding future public office. In excluding Trump from the ballot, the Colorado Supreme Court majority wrote:

We do not reach these conclusions lightly. We are mindful of the magnitude and weight of the questions now before us. We are likewise mindful of our solemn duty to apply the law, without fear or favor, and without being swayed by public reaction to the decisions that the law mandates we reach.

The three dissenting judges provided various reasons for reaching a different conclusion, with general agreement among them that Colorado’s laws and the lower court judge did not afford Trump sufficient due process.

Trump immediately appealed the decision, asking the U.S. Supreme Court to order that he appear on Colorado’s primary ballot. Trump’s lawyers argued that the state’s decision would unconstitutionally disenfranchise millions of Colorado voters and could become a template to disenfranchise tens of millions more voters nationwide.

The fundamental questions in this case include whether the insurrection clause applies to presidents; whether Trump violated the clause; and what the proper mechanisms are for disqualifying a presidential candidate under such circumstances. Although it would be an unprecedented step for the U.S. Supreme Court to constitutionally disqualify someone from the presidential ballot, Trump’s key role in the January 6 insurrection—which was a culmination of his multipronged strategy to overturn the presidential election—was itself unprecedented and dangerous for U.S. democracy.

The parties in this case are making multiple arguments, many of which are matters of first impression. The Colorado Supreme Court majority opinion presents a compelling roadmap on how to correctly decide the most important issues. If the U.S. Supreme Court follows the plain constitutional text—a method that conservative justices often use as a bedrock principle—they should uphold the reasoned decision of the Colorado Supreme Court.

Some of the most salient issues, many of which were addressed by the Colorado Supreme Court and could govern the U.S. Supreme Court’s decision, include:

• The scope of the insurrection and Trump’s involvement: The definition of “insurrection” was cogently determined by the Colorado Supreme Court in a way that comports with history and common sense. The factual record establishes that Trump engaged in the January 6 insurrection, or at the very least, gave aid and comfort to it, as the nation witnessed and as the House of Representatives’ bipartisan January select committee and 2021 impeachment proceedings. Moreover, even though this was not a criminal proceeding, Trump received due process during a weeklong hearing in the Colorado trial court, where copious witnesses and evidence were presented.
• The application to presidents: Compelling historical evidence shows that Congress intended the insurrection clause to apply to presidents and to the oath of office that presidents take, even though the Constitution does not explicitly state such.
• The First Amendment: Trump’s First Amendment free speech rights were not violated by the Colorado Supreme Court’s decision. As that court properly determined, Trump’s language on January 6 was clearly directed to incite or produce imminent lawless action and was likely to incite or produce such action; this is the required standard in the controlling U.S. Supreme Court precedent Brandenburg v. Ohio.
• Federal legislation, criminal convictions, and impeachment and removal: Nothing in the Constitution or relevant history requires that Congress pass legislation implementing the insurrection clause, nor is a criminal conviction or impeachment and removal from office required to disqualify persons under the insurrection clause. Rather, the only affirmative requirement set forth in Section 3 of the 14th Amendment requires Congress to act by a supermajority to remove the disqualification from those who have engaged in insurrection.
• Scope and timing of state action: The insurrection clause not only disqualifies candidates from being sworn into public office, but states may properly bar candidates from the ballot during the election cycle, as Colorado’s high court determined. The state’s actions were permissible even considering that the Constitution’s electors clause (Article II, Section 1, Clause 2) vests each state legislature with the authority to determine the manner of how it chooses its presidential electors.

Conclusion

In a strong and enduring democracy, no one can be above the law, not even a former president. A plain and honest reading of Section 3 of the 14th Amendment applied to the facts and with an eye toward its original intent should lead the Supreme Court to only one logical conclusion: that the insurrection clause bars Donald Trump from the office of the presidency. Trump must be held accountable for his central role in the January 6 insurrection, including via Section 3 of the 14th Amendment. This would be true of anyone who engaged in similar acts irrespective of political party or ideological affiliation.

If the U.S. Supreme Court reverses the Colorado Supreme Court decision in the case its decision could shake the United States’ democratic foundation in the rule of law and set a dangerous precedent. For the good of democracy and the US system of free and fair elections, the U.S. Supreme Court should render a timely decision that provides definitive guidance to all states about Trump’s eligibility to appear on their ballots. Without a clear decision, U.S. democracy risks a turbulent and fraught election cycle, particularly during a time of rising political extremism and violence.

Note

Majorities of both chambers of the US Congress already found that January 6 was an insurrection and that Trump not only engaged in it but “incited” it. Those votes came in the second impeachment of Trump, in January and February of 2021, in which majorities of both the House and the Senate backed an article of impeachment against Trump for “incitement of insurrection .”

The congressional votes regarding Trump should satisfy those who say “let the voters decide'lrather than applying the Constitution and removing Trump from the ballot; the voters already decided. Elected representatives convened, heard from both sides and voted that January 6 was an insurrection and that Donald Trump not only engaged in it but incited it. This was the conclusion of 232 of 435 representatives and 57 of 100 senators.

Those majorities already represent the will of the American people. True, it was not enough for impeachment, which requires a two-thirds majority in the Senate, but it is more than enough for disqualification, where no supermajority is stipulated and thus a simple majority should suffice.

If the voters change their minds at some future date, the Constitution also provides a way to restore Trump’s eligibility for office: Section 3 of the 14th Amendment allows for a disqualified official to be rehabilitated by a two-thirds vote of each house of Congress.

Without such an effort by Congress, it makes a mockery of both democracy and the Constitution to allow Trump to run again. If he is legally ineligible, he must not be on the 2024 ballot, or else the Constitution is meaningless. Provisions of the Constitution cannot be cherry-picked and ignored merely because they yield difficult or inconvenient outcomes.

Therein lies the greatest danger. The “let the voters decide” argument sounds democratic, but a suspension and circumvention of a clear constitutional provision could be the beginning of the end for US democracy and the rule of law. If any one part of the Constitution is set aside, no part of it is sacred.

There’s already a clear determination by Congress regarding Trump and January 6, and it must not be ignored it. The Supreme Court may be wary of disqualifying Trump based solely on their own ruling as a group of unelected judges. But they do not have to do so. They can ground their ruling in the determination that Congress has already made, thus giving their decision both legal and political legitimacy. The Constitution is clear, Congress’ votes are clear and Trump’s disqualification is thus wholly justified. If some people disagree, they can push for Congress to reinstate Trump as provided by the Constitution.

What Congress did, Congress can undo. That is the genius of the 14th Amendment — which the Supreme Court should fully embrace.