Perhaps the most important legal case in American history will begin publicly unfolding tomorrow (Thurs., 2/8/24). That is when the U.S. Supreme Court (SCOTUS) will conduct oral arguments in a case to determine if apparent Republican nominee Donald Trump is disqualified to run for president because of his actions related to the insurrection at the U.S. Capitol on Jan. 6, 2021. A number of contentions have been swirling around the case for months -- that a ruling against Trump could spark unrest and violence, that a ruling against Trump would be "undemocratic," that voters, not the courts, should decide the issue (meaning Trump stays on the ballot), that Section 3 of the 14 Amendment does not apply to Trump because he, as president, was not an "officer of the United States."
But none of that matters at this juncture. Here is what does matter: The case hinges on two questions,the first of which is easy to decide, and the second of which will remain an unknown until the end of the case. Question No. 1: Did Trump engage in an insurrection or rebellion on Jan. 6? Millions of Americans watched the tragic events of that day unfold on television, so the facts surrounding the case are not in question. The answer to Question 1, as we have reported and legal scholars from both sides of the political spectrum have stated, is clear: Yes, Trump engaged in an insurrection, and yes, he is disqualified from appearing on the 2024 presidential ballot.
Here is Question No. 2: Does SCOTUS, in its current disheveled state, have the courage and integrity to apply constitutional law correctly. It's nice to think that the answer is yes. But as we have shown on Legal Schnauzer for 17 years, courts cannot be trusted to correctly apply the facts or law to any case -- and that applies at all judicial levels. It is particularly concerning in a case as politically fraught at this one, with three members of the current court nominated by Trump, and at least two others usually being reliable conservative votes.
Of course, the definition of a "conservative" justice can vary. One definition holds that conservative judges tend to side with the interests of the Republican Party. But another holds that they take an "originalist" or "textualist" approach to the Constitution. For example, the late Antonin Scalia, an icon of conservatism, found in a 2014 case that the president is an "officer of the United States."
A number of analysts have argued that means Scalia and perhaps his adherents (Roberts, Thomas, and Alito, who joined his concurrence in 2014) would hold that Trump was an officer of the United States -- meaning Section 3 does apply to him, suggesting the former president is disqualified.
Why do we say it should be easy for SCOTUS to find that Trump is disqualified. Our reporting on Section 3 and the Trump case (see here, here, here, and here) tells us that.
Central to tomorrow's oral arguments will be this: Should SCOTUS uphold the Colorado Supreme Court's finding that Trump is disqualified from appearing on that state's ballot under the provisions of Section 3? Here, from a post dated Dec. 20, 2023, is the gist of the Colorado court's finding:
"We conclude that because President Trump is disqualified from holding the office of President under Section Three, it would be a wrongful act under the Election Code for the Secretary to list President Trump as a candidate on the presidential primary ballot. Therefore, the Secretary may not list President Trump's name on the 2024 presidential primary ballot, nor may she count any write-in votes cast for him."
(1) Here is how we addressed questions re: Trump/Sec. 3 in our first post on the subject, dated August 16, 2023:
a. Who says Trump is disqualified?
b. The answer:
Two prominent conservative legal scholars determined that former President Donald Trump is ineligible to be president under a provision in the Constitution barring people who engaged in insurrection from office.
Professors William Baude of the University of Chicago and Michael Stokes Paulsen of the University of St. Thomas — both members of the conservative Federalist Society (FedSoc) — studied the question for more than a year and detailed their findings in an article set to be published next year in the University of Pennsylvania Law Review, according to The New York Times.
The professors' conclusion . . . is that Trump "cannot be president — cannot run for president, cannot become president, cannot hold office — unless two-thirds of Congress decides to grant him amnesty for his conduct on Jan. 6."
c. Who else says Trump is disqualified?
d. The Answer:
Does that mean Trump's 2024 presidential campaign is toast? No. But it does mean he could face a significant hurdle if an entity or individual with sufficient resources is determined to see that he is blocked from serving. That's where Citizens for Responsibility and Ethics in Washington (CREW) and Executive Director Noah Bookbinder enter the picture. Bookbinder has written at X (formerly Twitter):
The 14th amendment says that anyone who swore an oath to support the constitution and then engaged in insurrection is disqualified from holding office. That includes Donald Trump, and it does NOT require a conviction for insurrection, or even charges. Let's break that down:
e. How does Bookbinder break it down?
f. The answer:
This issue raises a number of thorny questions, and Bookbinder addresses several of them. How did the constitutional provision in question come to be? From Bookbinder:
This provision was put in place after the civil war to ensure that those who rose up against the United States would not then be put in charge of it. Many former confederate officials did not even try to hold office because of it; courts disqualified others who did.
How has this provision been applied in the past?
Last year a court in New Mexico, in a case brought by New Mexico residents represented by CREW, disqualified a county commissioner who played a role in the Jan. 6 insurrection, including organizing and encouraging the violent mob.
That court, like those that came before, made clear that a criminal conviction was not required. Proving to the court by a preponderance of evidence that someone who had sworn the oath to the constitution then engaged in insurrection triggered the disqualification.(2) Here is how we addressed additional questions re: Trump/Sec. 3 in our second post on the matter, dated Sept. 13, 2023:
a. What is Section 3 really all about?
b. The answer:
Application of the 14th Amendment's Section 3 still poses a number of questions, but they are no longer just academic in nature. The Center for Responsibility and Ethics in Washington (CREW), a government-watchdog group in D.C., took care of that issue when it filed a lawsuit last week to have Trump removed from the ballot in Colorado.
This is the first of several such lawsuits that CREW intends to file, and the organization's executive director, Noah Bookbinder, makes it clear he and his team are not fooling around. From a CREW press release:
Having disqualified himself from public office by violating Section 3 of the 14th Amendment, Donald Trump must be removed from the ballot, according to a lawsuit filed today by six Republican and unaffiliated Colorado voters, including former state, federal, and local officials. . . .
Section 3 of the 14th Amendment, also known as the Disqualification Clause, bars any person from holding federal or state office who took an “oath … to support the Constitution of the United States” and then has “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.” On January 20, 2017, Donald Trump stood before the nation and took an oath to “preserve, protect, and defend the Constitution of the United States.” After losing the 2020 presidential election, Donald Trump violated that oath by recruiting, inciting, and encouraging a violent mob that attacked the Capitol on January 6, 2021, in a futile attempt to remain in office.
“If the very fabric of our democracy is to hold, we must ensure that the Constitution is enforced and the same people who attacked our democratic system not be put in charge of it,” Bookbinder said. “We aren’t bringing this case to make a point, we’re bringing it because it is necessary to defend our republic, both today and in the future. While it is unprecedented to bring this type of case against a former president, January 6th was an unprecedented attack that is exactly the kind of event the framers of the 14th Amendment wanted to build protections in case of. You don’t break the glass unless there’s an emergency.”
While Section 3 has not been tested often in the last 150 years, due
to lack of insurrections, last year CREW represented residents of New
Mexico who sued to remove county commissioner Couy Griffin from office,
the only successful case to be brought under Section 3 since 1869.
The judge in that case determined January 6th was an insurrection under
the Constitution and that someone who helped to incite it–even if not
personally violent–had engaged in insurrection and was disqualified from
office.
c. How did Section 3 come to exist?
f. The answer:
In a piece at MSNBC, Bookbinder writes:
Trump sought to keep himself in power after losing an election, ultimately inciting and encouraging a violent mob that attacked the Capitol. These are actions that more than meet the definition of insurrection. It is hard to imagine any conduct more dangerous to the survival of a democratic system of government than a leader refusing to leave, despite the people's votes against him, or resorting to force to hold onto power. Not holding such conduct accountable risks normalizing it -- at which point we have no democracy at all. . . .
In the wake of the Civil War -- the closest we have ever come to losing our Republic -- the framers of the 14th Amendments disqualification clause understood we needed to make sure those who attacked our democracy would not then be put in charge of it. It is a self-executing provision that requires neither action from Congress nor a criminal prosecution to apply.
Those framers also understood the United States could face future insurrections. Trump's attempt to reverse an election was precisely the moment for which that provision was designed. Beyond protecting our democracy from the particular risks Donald Trump poses, enforcing this provision ensures our democracy going forward.
This constitutional provision is not a punishment, it is a qualification. Just as a 30-year-old cannot serve as president, neither can someone who engaged in insurrection.
(3) Here is how we addressed additional questions re: Trump/Sec. 3 in our third post on the matter, dated Dec. 20, 2023:
a. What about the scope of the Colorado ruling?
b. The answer;
Despite the historic nature of the
Colorado ruling, comments from Republicans and rulings from some courts,
indicate a number of people in prominent positions still don't
understand what Section 3 means.
From a report at CBS News, by reporter Melissa Quinn, under the headline "Colorado Supreme Court rules Trump is disqualified from presidency for Jan. 6 riot":
The Colorado Supreme Court ruled Tuesday that former President Donald Trump is disqualified from holding the presidency under the Constitution's so-called insurrection clause and ordered the secretary of state to exclude his name from the state's Republican presidential primary ballot.
The landmark decision from the divided Colorado Supreme Court that Trump cannot hold public office under the Civil War-era provision is unprecedented, and it marks the first time a court has found him to be ineligible to return to the White House due to his conduct surrounding the Jan. 6, 2021, attack on the U.S. Capitol. Never before has a court determined that a presidential candidate is disqualified under the clause, Section 3 of the 14th Amendment.
The ruling does not apply outside of Colorado, and the state high
court, whose justices were all appointed by Democratic governors, paused
its decision until Jan. 4 — one day before the deadline for Colorado
Secretary of State Jena Griswold to certify the candidates for the
state's March 5 primary.
c. How close was the Colorado court's ruling?
d. The answer:
Similar lawsuits have been filed in more than half of U.S. States. Writes Melissa Quinn:
Lawsuits challenging Trump's candidacy have been filed in more than 25 states ahead of the 2024 election, though the Colorado case brought on behalf of six voters marks the most immediate threat to his campaign. . . .
The seven-member Colorado Supreme Court divided 4-3 on the ruling, with its majority reversing the trial court's finding as to the scope of Section 3 to conclude that it encompasses the office of the presidency and one who has taken an oath as president.
"President Trump asks us to hold that Section Three disqualifies every oath-breaking insurrectionist except the most powerful one and that it bars oath-breakers from virtually every office, both state and federal, except the highest one in the land," the majority wrote. "Both results are inconsistent with the plain language and history of Section Three."
e. What does the Colorado ruling mean in plain language?
f. The answer:
The ruling was a big victory for the Washington, D.C.-based watchdog group that brought the lawsuit on behalf of six Colorado voters -- four Republicans and two unaffiliated. The ruling also drove home the impact of Trump's mounting legal problems on the presidential race. From the CBS News report:
Noah Bookbinder, president of Citizens for Responsibility and Ethics in Washington (CREW), which brought the lawsuit in Colorado, praised the decision and said the group will work to ensure that it remains in place.
"The court's decision today affirms what our clients alleged in this lawsuit: that Donald Trump is an insurrectionist who disqualified himself from office under Section 3 of the 14th Amendment based on his role in the January 6th attack on the Capitol, and that Secretary Griswold must keep him off of Colorado's primary ballot. It is not only historic and justified, but is necessary to protect the future of democracy in our country."
g. Aren't most Americans confused about this Section 3 stuff?h. The answer:
As for Section 3, it is unfamiliar to many Americans because it never has been invoked against a presidential candidate in our lifetimes. Writes Quinn:
The Colorado case hinged on whether Section 3 bars Trump from the nation's highest office. The provision aims to prevent those who swore an oath to support the Constitution and engaged in insurrection from holding state or federal office.
CREW argued for the plaintiffs that Trump's actions related to the Jan. 6 assault disqualified him under Section 3. Dozens of suits filed across the country have raised the same argument, though several have already been dismissed by state courts.
(4) Here is how we addressed additional questions re: Trump/Sec. 3 in our most recent post on the matter, dated Dec. 21, 2023:
a. How do top legal scholars view this debate?
b. The answer:
t is hard to figure why people who should know better can't seem to grasp the simple nature of Section 3 -- and the reality that the Colorado court got it right -- and Donald Trump, in fact, is disqualified under the constitution.
So, who gets it, who provided valuable clarity for a public that surely is confused by a little-known provision of law that dates to the Civil War? My vote goes to Ilya Somin, a professor of law at George Mason University''s Antonin Scalia Law School and author at Reason Magazine, The Volokh Conspiracy and other outlets in the popular press, in addition to numerous scholarly journals. In an article at Reason and The Volokh Conspiracy, Somin writes under the headline "Colorado Supreme Court Rules Trump is Ineligible for the Presidency Under Section 3 of the 14th Amendment.
c. So, what does Somin say about this case?
d. The answer:
The Supreme Court of Colorado ruled this week that Donald Trump is ineligible to be on the ballot for the 2024 presidential election because he is disqualified by Section 3 of the 14th Amendment. Section 3 states that "No person" can hold any state or federal office if they had previously been "a member of Congress, or… an officer of the United States" or a state official, and then "engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof." The Colorado court ruled that Trump "engaged in insurrection" because of his role in instigating the January 6, 2021, assault on the Capitol, and is therefore disqualified. This—and the lower-court ruling it reviewed—are the first decisions that address the Section 3 case against Trump on the merits; several previous rulings in other states have dismissed Section 3 claims against Trump on various procedural grounds.
I can't give anything like a complete analysis of the 213 pages of majority and dissenting opinions here. But I think the 4-3 majority got it right. Trump is indeed ineligible.
The per curiam majority opinion does an excellent job of handling all the major issues at stake: whether the January 6 attack was an insurrection, whether Trump's role in it was extensive enough to qualify as engagement, whether the president is an "officer of the United States," and whether Section 3 is "self-executing" (that is, whether state governments and courts can enforce it in the absence of specialized congressional legislation). In the process, the justices partly affirmed and partly overruled the trial-court decision, which held that Trump did indeed engage in insurrection, but let him off the hook on the badly flawed ground that Section 3 doesn't apply to the president
e. What else does Somin tell us?
f. The answer:
Somin notes that the 4-3 vote of the Colorado high court is deceptive:
The 4-3 vote is not as close as it looks. Two of the three dissenting justices did so on the ground that Colorado state election law doesn't give the state courts the authority to decide Section 3 issues. They did not endorse any of the federal constitutional arguments on Trump's side. And these state statutory issues probably cannot be reviewed by the US Supreme Court, because state supreme courts are the final arbiters of the meaning of state law (with a few exceptions that do not apply here).
g. What about the big issues in the Trump case? What does Somin think?
h. The answer:
Was the Jan. 6 attack on the U.S. Capitol an insurrection? Somin answers in the affirmative, and he does not find it to be a close call:
I think it's fairly obvious that the January 6 attack on the Capitol amounts to an insurrection, and the Colorado justices also concluded this is not a close issue:
[F]or purposes of deciding this case, we need not adopt a single, all-encompassing definition of the word "insurrection." Rather, it suffices for us to conclude that any definition of "insurrection" for purposes of Section Three would encompass a concerted and public use of force or threat of force by a group of people to hinder or prevent the U.S. government from taking the actions necessary to accomplish a peaceful transfer of power in this country.
This is an important point that I have tried to highlight in some of my own writings about the case. January 6 qualifies as an "insurrection" even under a fairly narrow definition of the term that is limited to the use of force to take over the powers of government. We don't need to rely on much broader definitions advocated by some legal scholars.
The Colorado Court didn't address the argument that there was no insurrection because the rioters and Trump sincerely believed he won the election, and therefore thought they were acting to protect the Constitution. But, under that reasoning, most of the ex-Confederates whom Section 3 was originally enacted to disqualify would also have been exempt, since they sincerely believed the secession of the southern states was legally authorized by the Constitution (and they had far better legal arguments for their position than Trump for his).
i. Were there some particularly tough questions the Colorado court faced? What is Somin's take on those?
j. The answer:
What was the toughest issue the Colorado court had to address.?This is Somin's take:
As I see it, the hardest issue raised in the case is whether Trump's involvement in the insurrection was extensive enough to count as "engaging" in it. On this question, the justices affirmed the detailed and compelling analysis of the district judge, much of which rests on factual findings that can only be reversed for "clear error." They also emphasized this important point:
As our detailed recitation of the evidence shows, President Trump did not merely incite the insurrection. Even when the siege on the Capitol was fully under way, he continued to support it by repeatedly demanding that Vice President Pence refuse to perform his constitutional duty and by calling Senators to persuade them to stop the counting of electoral votes. These actions constituted overt, voluntary, and direct participation in the insurrection
As I pointed out in a recent Bulwark article about the case, this goes beyond encouraging violence (as Trump did before the attack) or failing to try to stop it. It amounts to using the attack as leverage to try to force Congress to keep him in power. Using a violent insurrection in this way surely qualifies as "engaging in it," even if Trump's other actions fell short of doing so. Even if this somehow still falls short of "engagement," this and Trump's other actions surely at least gave "aid and comfort to the enemies" of the United States.
The court also gave a thorough and compelling explanation for its rejection of the argument that the president is not an "officer of the United States" covered by Section 3. Here is a key excerpt:
When interpreting the Constitution, we prefer a phrase's normal and ordinary usage over "secret or technical meanings that would not have been known to ordinary citizens in the founding generation."District of Columbia v. Heller, 554 U.S. 570, 577 (2008). Dictionaries from the time of the Fourteenth Amendment's ratification define "office" as a "particular duty, charge or trust conferred by public authority, and for a public purpose," that is "undertaken by . . . authority from government or those who administer it." Noah Webster, An American Dictionary of the English Language 689 (Chauncey A. Goodrich ed., 1853); see also 5 Johnson's English Dictionary 646 (J.E. Worcester ed., 1859) (defining "office" as "a public charge or employment; magistracy");United States v. Maurice, 26 F. Cas. 1211, 1214 (C.C.D. Va. 1823) (No. 15,747) ("An office is defined to be 'a public charge or employment,' . . . ."). The Presidency falls comfortably within these definitions…..
The preference for "ordinary meaning" is a standard tenet endorsed by most originalist judges. The quote from Heller to this effect is by the late Justice Scalia, a major icon of originalist jurisprudence.
And it's pretty obvious that the ordinary meaning of "officer of the United States" includes the holder of the most powerful office in the federal government! As the Colorado Supreme Court puts it, "President Trump asks us to hold that Section Three disqualifies every oath-breaking insurrectionist except the most powerful one, and that it bars oath-breakers from virtually every office, both state and federal, except the highest one in the land. Both results are inconsistent with the plain language and history of Section Three."
The opinion also addresses the argument that the presidency was excluded because it wasn't specifically listed, but some other positions (e.g.—members of Congress) were:
It seems most likely that the Presidency is not specifically included because it is so evidently an "office." In fact, no specific office is listed in Section Three; instead, the section refers to "any office, civil or military." U.S. Const. amend. XIV, § 3. True, senators, representatives, and presidential electors are listed, but none of these positions is considered an "office" in the Constitution. Instead, senators and representatives are referred to as "members" of their respective bodies.
I would add that senators, representatives, and electors are less clearly officers than the president because they do not have individual authority to issue orders to subordinates, a point I expounded on in my Bulwark article.
The Court similarly addressed the issue of whether Section 3 is self-executing. The key point here is that every other part of the Fourteenth Amendment is considered self-executing, despite the fact that Congress can provide for additional enforcement through its power to enact "appropriate" enforcement legislation under Section 5. There is no good reason to exempt Section 3 from this general principle:
The Supreme Court has said that the Fourteenth Amendment "is undoubtedly self-executing without any ancillary legislation, so far as its terms are applicable to any existing state of circumstances."
The Civil Rights Cases, 109 U.S. 3, 20 (1883). To be sure, in the Civil Rights Cases, the Court was directly focused on the Thirteenth Amendment, so this statement could be described as dicta. But an examination of the Thirteenth, Fourteenth, and Fifteenth Amendments ("Reconstruction Amendments") and interpretation of them supports the accuracy and broader significance of the statement….
There is no textual evidence that Congress intended Section Three to be any different…. Furthermore, we agree with the [plaintiffs] that interpreting any of the Reconstruction Amendments, given their identical structure, as not self-executing would lead to absurd results. If these Amendments required legislation to make them operative, then Congress could nullify them by simply not passing enacting legislation. The result of such inaction would mean that slavery remains legal; Black citizens would be counted as less than full citizens for reapportionment; non-white male voters could be disenfranchised; and any individual who engaged in insurrection against the government would nonetheless be able to serve in the government, regardless of whether two-thirds of Congress had lifted the disqualification.
What could this case ultimately mean for the U.S. Supreme Court's credibility? It could ruin what might be left of it -- and it could mean the the court no longer serves any useful purpose in American society. To be clear, it is not SCOTUS' role to worry about violence that might ensue due to one of its decisions, to worry that some might feel its ruling is "undemocratic," that some might feel the high-court usurped the will of voters. The role of SCOTUS is to evenly, correctly, and fairly apply (or interpret) the law. If it can't manage that simple task in the Trump case, we will know there is no point in having such a high court; it will have outlived its usefulness.
