The trial over whether former President Donald Trump should be disqualified from the Colorado presidential ballot can seem complex. So let’s step back for a moment and look at the basics.
Based upon all available evidence, Trump understood that he lost the 2020 election, but he lied to the American people about the results, claiming falsely that he actually won, and he schemed with allies to stay in power. Part of his plan was to foment grievances among followers and call them to Washington, D.C., on Jan. 6, 2021, where he exhorted them to “fight” to stop Congress from certifying President Joe Biden’s win. They responded by engaging in a deadly attack on the Capitol — an “insurrection,” according to any regular definition.
Section 3 of the 14th Amendment bars a person who took an oath to uphold the Constitution and then “engaged in insurrection” from holding office in the United States. Now apply this provision to Trump’s actions. Though the implication is extraordinary, the outcome is straightforward: Trump cannot be president again.
It’s really that simple.
Debate over whether Section 3 bars Trump, the all-but-certain Republican presidential nominee, from public office has intensified in recent months as scholars have devoted more energy to the matter and plaintiffs in various states have filed related legal challenges to Trump’s candidacy. Survey the arguments in these realms and you might get the idea that difficult questions remain about the meaning of Section 3 and how it ought to be enforced. Is the provision self-executing? What does it mean to “engage” in “insurrection”? Did Trump swear the presidential oath as “an officer of the United States”?
These and other putative uncertainties prompt the bulk of the arguments around Trump’s eligibility. But they’re mostly distractions that obscure the truth that Trump as president engaged in insurrection — we know this, because it occurred right in front of us, on TV and social media — and the Constitution deals directly with such behavior, in language any non-lawyer can grasp.
The trial in Colorado reinforced this conclusion with actual testimony in an adversarial setting.
The suit was filed by the watchdog group Citizens for Responsibility and Ethics in Washington on behalf of six Colorado voters in Denver District Court. They asked the court to order Secretary of State Jena Griswold to bar Trump from the Colorado presidential ballot. Griswold, a Democrat and outspoken Trump critic, had declined to block Trump from the ballot on her own. A five-day bench trial took place starting Oct. 30, with closing arguments delivered Wednesday. “Donald Trump tried to overthrow the results of the 2020 presidential election,” the lawsuit says. “His efforts culminated on January 6, 2021, when he incited, exacerbated, and otherwise engaged in a violent insurrection at the United States Capitol by a mob who believed they were following his orders, and refused to protect the Capitol or call off the mob for nearly three hours as the attack unfolded.”
A disquieting outcome is no grounds for a judge to avoid the force of constitutional language, and the far worse result is for cold feet to render the law of the land inoperable in the courts.
A vivid demonstration of Trump’s vulnerability to enforcement of Section 3 was provided by the weakness of witnesses he managed to summon in the Colorado case, especially compared with the strength of those called by the plaintiffs. Much of the case turns on the history of Section 3’s framing and its language, adopted after the Civil War to deal with former Confederate figures. The plaintiffs’ witness on these matters was Gerard Magliocca, an Indiana University law professor who is considered one of the foremost scholars on Section 3. He has been cited extensively by courts, government agencies, and other prominent constitutional scholars.
Who did Trump call to contradict Magliocca? Retired law professor and legal commentator Robert Delahunty, who, in stark contrast to Magliocca, has not closely studied the 14th Amendment and has not done original research on its drafting. The defense had objected to his very admission in the trial as an “expert,” but his testimony in fact gave advantage to the plaintiffs because he exemplified the inferiority of Trump’s arguments on what “engaged in insurrection” and “officer of the United States” means and whether congressional action is required before Section 3 can be enforced.
Testimony from Magliocca and other evidentiary material in the trial, including extensive exhibits concerning Trump’s incendiary rhetoric in the run-up to Jan. 6 and his inciting speech that precipitated the violent attack, established persuasively that Trump engaged in insurrection, that Section 3 covers a president, and that the state district court can rule on the challenge to Trump’s candidacy.
This is important, because while Judge Sarah Wallace had already ruled before the trial that “states can, and have, applied Section 3 pursuant to state statutes without federal enforcement legislation,” she was looking to evidence at trial precisely to determine whether Section 3 applies to a president and whether Trump engaged in insurrection. Evidence on these questions appeared decisive.
An 1869 ruling that involves Section 3 has long been seen as a primary obstacle to its enforcement, since the ruling found that the provision was not “self-executing” — that is, it required congressional action to be operative. But the more scholars have studied the ruling the more its reputation declines. It was written by Chief Justice Salmon P. Chase, presiding as a circuit justice. He was so aghast at the implications of Section 3 if it were to be applied automatically, he advised that “great attention is properly paid to the argument from inconvenience.”
But as conservative law professors William Baude and Michael Stokes Paulsen write in a draft paper that is widely viewed as the leading contemporary account of Section 3, the Chase opinion is worthy of little more than ridicule.
“Chase’s construe-to-avoid-the-force-of-constitutional-language-whose-policy- consequences-you-dislike approach to constitutional interpretation is simply wrong. Judges do not get to rewrite constitutional provisions they find objectionable on policy grounds,” Baude and Paulsen write.
This admonition, regrettably, is applicable to the newest Section 3 rulings. Trump-disqualification lawsuits in recent months have proliferated around the country, including several that are widely viewed as that most potentially consequential. These include cases in Colorado, Michigan and Minnesota.
But last week the Minnesota Supreme Court dismissed a Section 3 case against Trump, ruling that the petitioners after the primary election could try again in the general election, and a Michigan judge this week ruled that the state lacks authority to disqualify Trump. You can almost hear a sigh of relief in the rulings as the judges took refuge in plausible legal lines that allowed them to avoid the inconvenience of applying a grave constitutional provision.
That leaves Wallace to enforce the Constitution as it was intended to be enforced.
The stakes of the Colorado case are great. And it’s troubling to contemplate the consequences of disqualifying Trump, a bully with a proven ability to incite mob violence. But a disquieting outcome is no grounds for a judge to avoid the force of constitutional language, and the far worse result is for cold feet to render the law of the land inoperable in the courts.
The case comes down to this: Trump took an oath to the Constitution and then engaged in insurrection against it — and now he wants to be president again, which is intolerable in a nation of laws.
It turns out that previous insurrection-repelling leaders had already come up with a way to deal with such adversaries of the United States. It’s right there in Section 3 of the 14th Amendment.
This article initially appeared in Colorado Newsline, which is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Colorado Newsline maintains editorial independence. Contact Editor Quentin Young for questions: [email protected]. Follow Colorado Newsline on Facebook and Twitter.
