After the January 6 Attack, How Can Trump Remain on the Ballot?

The Fourteenth Amendment to the United States Constitution plainly states that anyone is disqualified from holding federal office if, having previously taken an oath to support the Constitution, they engage “in an insurrection.” The idea of this Civil War amendment, ratified in 1868, was that former federal officials like Jefferson Davis, the president of the Confederate States of America, who had been a U.S. cabinet member and congressman, and had breached their oath of office by participating in an insurrection and would be disqualified from regaining federal office.

While there were instances of disqualification in the Reconstruction era, the provision has had little use ever since because, thankfully, we have not had an insurrection until January 6, 2021. There is the case of Couy Griffin in New Mexico. Griffin was the founder of the group “Cowboys for Trump,” whom a state court judge removed from his post as an Otero County commissioner due to his participation in the January 6 assault on the U.S. Capitol.

And there is the case of Donald J. Trump.

Article Two of the Constitution provides very few qualifications for the office of president—just being 35 years of age, a natural-born citizen, and 14 years a resident of the United States. So, theoretically, a president could be an accused or even a convicted felon. In 1920, the Socialist Party’s Eugene Debs ran for president from a federal prison, where he was serving a 10-year sentence for sedition. He garnered a million votes.

A number of leading law professors have argued that the Fourteenth Amendment is self-executing and requires local election officials to remove Trump from the ballot, as though he were a “stable genius” who had not reached the age of 35. Taking their lead, citizens’ groups have commenced actions in at least 21 states to disqualify Donald Trump from running for President because he engaged in an insurrection.

Trump has prevailed in three of these cases, but it is only the first lap around the track. The Supreme Court of Minnesota, leaving open the question of Trump’s possible disqualification in the general election, held that the Constitution did not prevent a political party from holding a primary election to serve “internal party purposes,” stating that: “There is no state statute that prohibits a major political party from placing on the presidential nomination primary ballot, or sending delegates to the national convention supporting, a candidate who is ineligible to hold office.” In Michigan, a state court judge, concluding that the matter can be revisited should Trump become the Republican nominee, ruled that the issue was not ripe for determination since Trump is only a primary contender, and that the plaintiffs’ claim rested on “contingent future events that may not occur as anticipated, or may not occur at all.”

And, most recently, in Colorado, state court Judge Sarah B. Wallace, refusing to disqualify Trump from the 2024 presidential ballot based on Section Three of the Fourteenth Amendment, dealt only a Pyrrhic victory to the 45th president, and if he doesn’t know it, what’s left of his legal team does.

After an evidentiary hearing, Wallace found that Trump, a candidate for President of the United States, “engaged in an insurrection on January 6, 2021, through incitement”—a rebellion against the very Constitution he swore to “preserve, protect and defend.” This is the first judge to have found that Trump engaged in an insurrection and the first time in our nation’s history that a judge has found that a former president has done so. We live in interesting times.

The court went on to find the damning fact that Trump “acted with the specific intent to disrupt the Electoral College certification of President Biden’s electoral victory through unlawful means.” It also found as fact and law the factual preconditions to the former president’s disqualification under Section 3.

The Michigan court concluded that whether Trump engaged in an insurrection was a mixed question of law and fact, and, therefore, a political question that the courts prudentially should stay out of. But the total answer is the evidence that the purpose of the attempt to “disrupt the electoral college certification” of Biden’s victory “through unlawful means” is to keep Trump in office beyond the four-year term to which he was elected. In her allocution as part of her plea deal, former Trump campaign attorney Jenna Ellis told prosecutors that a top Trump aide said to her that the president did not plan to leave the White House “under any circumstances” after losing the 2020 election. She said in her statement that longtime Trump right hand, Dan Scavino, said a few weeks after the election that “we are just going to stay in power.” Ellis said she answered, “Well, it doesn’t quite work that way, you realize.” Scavino’s response, she said: “We don’t care.”

Conservative former federal appellate Judge J. Michael Luttig picks up on this, adding another string to the bow. He contends with some force that Trump’s refusal to leave office (even though he ultimately left) was “in rebellious violation of the Constitution’s Executive Vesting Clause, which prescribes the four-year term of the presidency,” and that Trump’s violation of “the Executive Vesting Clause is perhaps the single best argument for his disqualification from future office under Section 3 of the Fourteenth Amendment.”

Having ruled that Trump “engaged in an insurrection,” Using linguistic gymnastics, Wallace, the Colorado judge, chose to exempt Trump from disqualification in the Centennial State. Her reasoning was incorrect. She held that the disqualification provision of the Fourteenth Amendment does not apply to the president because, she concluded, the chief executive does not hold a civil or military office. This conclusion ignores Article Two of the Constitution, which creates the presidency, and, referring to the president, uses the word “office” or “officer” no less than nine times and specifies that he is the commander-in-chief of the armed forces and is charged with making sure “that the laws be faithfully executed.” The Constitution in Article Two, Section 1 establishes the President as someone who “shall hold the office during the term of four years.” If this isn’t an office holder and thus an officer, I don’t know what is. Article Two, Section 4 refers explicitly to the president as a “civil officer.”

When Trump sought to remove the Stormy Daniels criminal case in New York to the federal court, he made the judicial admission that he had been an “officer of the United States,” and the court so held. It would be odd if the understanding in 1868 was that all former federal officeholders who “engaged in an insurrection” were disqualified, except for someone who held the highest office in the land, who would get a pass.

Unlike the oath taken by civil and military officers, the presidential oath is unique. The commander-in-chief vows to “preserve, protect and defend the Constitution.” The Fourteenth Amendment uses the phrase “support the Constitution.” But this is a distinction without a difference. The dictionary definition of “preserve” is to maintain; “protect” is to “safeguard;” and “defend;” and “support” are synonymous. Can a President plausibly say that he took an oath to “preserve, protect and defend” the Constitution but was free to lead an insurrection to shred it because he had no obligation to support it? Trump has said he wants to “terminate the Constitution.” Did he take the solemn presidential oath with crossed fingers behind his back?

From the plaintiffs’ point of view, the challenging part of the case was to prove that Trump “engaged in an insurrection” on January 6. After all, he did not go to the Capitol and slug cops and join the chorus of voices seeking to “hang” his vice president, although he did say that he wanted to go to the Capitol after leading a rally on the Ellipse near the White House that morning. But, in the eyes of the law, someone can engage in an insurrection by doing nothing when he has a duty to act. Trump sat in the White House watching the melee on TV for three and one-half hours and did nothing to stop the violence, even though he had a positive duty to make sure “that the laws be faithfully executed.”

Vicarious responsibility for criminal acts is settled law. As the legendary Judge Learned Hand observed: “Conspiracy is the darling of the modern prosecutor’s nursery.” You don’t have to do it yourself. And on this, plaintiffs in Colorado won a finding that will haunt Trump’s campaign in the coming days.

Professor Laurence Tribe of Harvard Law School commented convincingly that:

The Colorado judge created a wall of findings too high for anyone to scale and then tossed Trump a lifeline too weak and frayed for anyone to use. She found him guilty of trying to terminate the Constitution he swore as president to defend and held that would bar anyone else from running for president. But she then held the Framers left a loophole in the wall they built to protect our republic by naming the president as the one officer who could engage in insurrection against the Constitution without losing the chance to run again!

The Citizens for Responsibility and Ethics in Washington (CREW), the organization that spearheaded the suit on behalf of six Republican and unaffiliated Colorado voters, took a victory lap over the court’s finding, noting that, in “this historic case,” Trump was found to have “engaged in an insurrection…through incitement and that the First Amendment does not protect Trump’s speech.” CREW said that when they filed the case, they knew “it likely would not end” at the district court level and promised to take the matter on an expedited basis to the Colorado Supreme Court. Whatever the outcome in Denver, the issue will land where it belongs in the United States Supreme Court, where the conservative supermajority has handed plenty of policy victories to Republicans but has often ruled against Trump, including on his 2020 election claims.

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