DENVER — A Colorado judge on Friday found that former President Donald Trump engaged in insurrection during the Jan. 6, 2021, attack on the U.S. Capitol but rejected an effort to keep him off the state’s primary ballot because it’s unclear whether a Civil War-era Constitutional amendment barring insurrectionists from public office applies to the presidency. (NPR)
Let’s unpack what is going on here.
Section 3 of the 14th Amendment Disqualification from Holding Office reads as follows:
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.
THE COLORADO LAWSUIT
This case was brought on behalf of voters in Colorado, asking the district court judge, Sarah Wallace, to keep Trump off the ballot in Colorado for the 2024 presidential election. The basis for that ask was that Trump engaged in an insurrection and section 3 of the 14th Amendment of the Constitution should result in keeping him off the ballot because he is disqualified from holding any government office “civil or military” in the United States or any state ever again.
The District Court judge hearing this case in Colorado held a full trial delving into the events that happened leading up to and on January 6th. Testimony was heard. Capitol police testified. Constitutional experts testified. The focus was also on what Trump said and did that day and what happened in the fight to protect lawmakers from the mob that had been assembled on the Ellipse by then president Trump.
WHAT THE JUDGE DECIDED
After hearing all the evidence, this judge made a very consequential determination. She ruled that Trump did in fact engage in an insurrection. That is huge. Just stop for a minute and think about this.
The idea that a president of the United States could engage in an insurrection against the very country he is leading is a shocking idea. This judge made her determination based on all of the evidence she heard.
Her determination matters because that judge was the one who heard the testimony in her courtroom. Rarely if ever will an appellate court contradict the decisions of a district court judge who has heard testimony first hand and rendered an opinion. For example, if a district court judge says a witness is not credible, that assessment will not be challenged on appeal. District court decisions are most frequently overruled on the law.
After ruling that in her opinion Trump engaged in insurrection, the same judge said Trump can stay on the ballot. HUH?
The reason she gives is important and gives us a clue about why she did what she did. She said the plain language of section 3 of the 14th Amendment does not specifically say PRESIDENT when it identifies who the amendment applies to. It does clearly apply to anyone who took an oath as an OFFICER of the United States. So is a president a subset of the category “officer” or not?
WHY THE JUDGE TEED IT UP THE WAY SHE DID
The reason this district court judge didn’t want to make that very consequential determination that Trump falls into the category of OFFICER of the United States is because that needs to be the job of the Supreme Court. It is a pure Constitutional issue. How do the members of the Supreme Court interpret our Constitution? This judge teed that question up for the Supremes.
Let’s say the Supreme Court decides that president IS a subset of the category OFFICER. That means Trump is subject to the mandate of section 3 of the 14th Amendment. That would mean his name would not appear on ANY ballot in ANY state. He would be barred from running for president altogether in 2024.
What’s the fall out from that determination?
It would take the decision to vote for Trump away from the voters. It would be a court decision that would not convince millions of Trump-loving Americans that the system was not rigged against their cult hero. Trump is part of a larger anti-democratic movement in America, and he is constantly telling Americans that the system is rigged against him. His followers would believe the Supreme Court is part of the so-called “deep state” that is out to “get” Trump if they prevent Trump from running for president.
Ok then, so what if the Supreme Court were to decide that section 3 of the 14th amendment does NOT apply to Trump? That too would be a shocking and equally consequential decision.
It would mean that any PRESIDENT of the United States would be permitted to upend our democracy by engaging in treason or insurrection even though lower-level officials would be barred from those same acts. That outcome would seem to fly in the face of the intent of the 14th Amendment.
WHY ARE WE FACING THIS PROBLEM?
I don’t think the people who wrote the language of the 14th Amendment imagined that some day there could be a president who would want to overthrow our democracy.
The idea that a president of the United States could engage in an insurrection against the country he is leading must have seemed far fetched. And yet, here we are.
Trump is a wannabe autocrat, or dictator, and he has never been interested in preserving our democracy. Quite the opposite. Democracy gets in his way. That sets the stage for the clash between what Trump’s goals are and what our democratic rule of law requires of presidents. They need to leave office after losing an election to a rival. They only have a prescribed 4 year term when they are granted power. After that they turn back into regular normal citizens.
What Trump was trying to do on January 6th was to stay in power after losing the election to Joe Biden which directly and clearly defies the rule of law including Section 3 of the 14th Amendment of the Constitution and the Executive Vesting Clause of the Constitution. The awesome power of the presidency is granted to a person, a normal person, only for a period of 4 years. Before becoming president, that person takes an oath with his hand on the bible to uphold the Constitution and the laws of the country. Until Trump came along that oath was sacrosanct.
But Trump, as we all know very well by now, breaks the rules and refuses to live by the rules set by others. He is a natural dictator because he believes only “he alone can fix it” and he thinks the rules apply to others but not to him. That’s part of the reason his base (what’s left of the Republican party) adores Trump and will never leave him. They want a rule breaker who will restore the country to a way of life that works specifically for them. They want to return to a time before all these changes happened like a Black man getting to be president, gay people getting married, gender fluidity, women having the power to have careers and control their bodies so they can determine when they have children, and so much more. That’s what Make America Great AGAIN was really all about. Backlash.
We are at a crossroads in America. Trump has made it clear that if he gets back into power as our 47th president he will end our democracy, put immigrants into concentration camps, go after anyone he doesn’t like and put them in jail or institutionalize them, purge the government agencies and replace those people with loyalists, make the justice department part of his executive branch, dismantle agencies like the EPA and many others. His goal will be revenge and retribution. If you think I am overstating his plan then you need to read up on what’s coming if he is elected. (Also see my recent post: A Trump Win Would End Democracy)
THE SUPREME COURT WILL DECIDE
The decision by District Judge Sarah B. Wallace is the third ruling in a little over a week against lawsuits seeking to knock Trump off the ballot by citing Section 3 of the amendment. The Minnesota Supreme Court last week said Trump could remain on the primary ballot because political parties have sole choice over who appears, while a Michigan judge ruled that Congress is the proper forum for deciding whether Section 3 applies to Trump. (NPR)
District courts in many states are predictably coming up with different decisions about what to do when it comes to Trump and the 14th Amendment. For that reason the Supreme Court will be forced to be the final arbiter of how to read and understand the Constitution. That is their job, after all. Whatever they decide will have monumental implications.
If Trump wins re-election, our democracy, many of our freedoms and many precedents as well as the rule of law will be relegated to the trash bin of history. Trump is being aided by a large group of ultra right-wing catastrophists including Steven Miller and Steve Bannon as well as many others who want to install Trump as our first American dictator. If the Supreme Court allows Trump to be on the ballot after fomenting an insurrection and if Trump gets elected, the Supreme Court will be at least partly to blame for the dismantling of our democracy. Not a great legacy for the Roberts court.
WHAT SHOULD THE SUPREME COURT DO?
I used to think that the Supreme Court should let the voters decide to rehire Trump or not. But I have changed my mind. Trump has become too dangerous. Even if he massively loses the popular vote by millions, he could still win because of our electoral college system, because of Biden’s seeming inability to convince younger voters and Hispanic voters that he is the right candidate for the future they want, because of third party candidates like Robert Kennedy, Cornell West, Jill Stein and maybe Joe Manchin running on a No Labels ticket, and because so many Americans feel angry and exhausted when it comes to politics they might just stay home instead of bothering to vote.
- More than half of Americans told Pew Research Center they feel “angry” always or often when they think about politics.
- 65% said they feel exhausted. (Axios)
For these reasons I hope the Supreme Court decides that a president is an officer of the United States and bars Trump from being on the ballot in every single state. There’s just too much is at stake.