Trump called the latest 14th Amendment a “victory.” He couldn’t be more wrong

(Julio Cortez/Associated Press)

Trump called the latest 14th Amendment a “victory.” He couldn’t be more wrong

Opinion piece, Elections 2024

Harry Litman

November 20, 2023

The latest opinion challenging Donald Trump’s fitness to run for president has led to much gnashing of teeth over how the court, in the words of Colorado’s secretary of state, ruled Trump gave a ‘get out of jail free’ card for rebellion. The frustration is understandable, but short-sighted.

In fact, Colorado District Judge Sarah B. Wallace’s opinion is a giant step toward disqualifying Trump from the ballot on constitutional grounds.

The Colorado challenge is one of many under Section 3 of the 14th Amendment, which disqualifies officials involved in an insurrection against the United States from holding federal office. The provision gives rise to the argument that Trump is not qualified to run for president due to his role in the events of January 6, 2021.

In the last few of the 102 pages, Wallace’s opinion concludes that the President is not an officer of the United States within the meaning of the amendment and therefore is not disqualified from voting. Trump called this a huge victory in court.

But the former president was either bluffing or being stupid. In fact, the opinion goes nine-tenths of the way toward acknowledging the challengers’ claims and disqualifying Trump before opting for a close and questionable textual reading of the officer’s question. The ruling is far more important because of how it goes against Trump than because of the courts’ ultimate change in direction.

Every other court to date that has taken up the 14th Amendment claim has shied away from considering it on the merits, finding it to be a political issue or otherwise unsuitable for determination by the courts. The Colorado judge, on the other hand, held a week-long hearing during which he provided testimony on the law and the facts.

Wallace’s resulting opinion methodically works through the evidence to establish that Trump did indeed participate in an insurrection, which only a court of law can do. In doing so, she rejected Trump’s defense of the First Amendment, finding that his deliberate incitement to the Jan. 6 looters nullified any claim to free speech.

So the order that will be appealed to higher courts contains almost everything that would be needed to disqualify Trump from the ballot. His latest doubt about whether the president is an officer is a discrete matter of textual interpretation that each appellate court could decide differently.

In fact, the challenger’s letter treated the officer issue almost as an afterthought, although a subsequent Wall Street Journal wrote an op-ed by former Atty. General Michael Mukasey brought new attention to the issue. And the conclusion that the president is not an officer has drawn fierce criticism from eminent scholars, including conservative former appellate judge J. Michael Luttig, who called it unfathomable.

No matter how weak or strong the claim, I don’t find it as ridiculous as others claim. The important point is that higher courts will decide it as a question of law. They may well disagree with Wallace on that point, while adopting her much more important finding that Trump engaged in an insurrection.

It is widely believed that any appellate ruling barring Trump from the vote would lead to intervention by the U.S. Supreme Court, which would have the final say. And it’s hard to imagine that the Supreme Court could or would want to conclude that Trump engaged in an insurrection without any factual data to review. In this way, Wallace’s opinion provides an empty table for the court.

Of course, the appellate courts may agree with Wallace on the officer issue, or differ on other legal grounds. For example, a higher court could reject Wallace’s definition of insurrection, which is any public use of force or threat of force by a group of people to obstruct or prevent the implementation of the law. An extensive definition based on a historical analysis of the terms used during reconstruction. , when the 14th Amendment was passed. Higher courts could also rule that enforcement of Section 3 is a political question that only Congress can answer, although that would raise other questions about the state’s power to ensure that candidates meet other basic qualifications for the ballot.

The bottom line, however, is that the Colorado opinion gives challengers a determination that Trump engaged in an insurrection while raising legal questions that the higher courts would have to answer anyway. It thus breathes new life into a possible legal solution to the Trump nightmare that might otherwise have remained quixotic.

Harry Litman is the host of the

Talking Feds Podcast




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