BY WENDY ROGOVIN | BIGTENTUSA
“The Constitution itself tells us that disqualification of the former president is not anti-democratic. Rather, the Constitution tells us that it is the conduct that can give rise to disqualification under the 14th Amendment that is anti-democratic.” Retired Judge J. Michael Luttig
SCOTUS has agreed to hear Trump’s challenge to the Colorado case disqualifying him from the ballot based on the 14th Amendment, section 3.
Enacted after the U.S. Civil War, section 3 of the 14th Amendment bars anyone from holding federal and state office if they engaged in “insurrection or rebellion” after previously swearing an oath in support of the Constitution of the United States. The provision was enacted in 1868 to prevent former members of the pro-slavery Confederacy from serving in the U.S government.
“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.”
Oral arguments are scheduled for February 8, 2024. Trump’s brief is due January 18; respondents’ briefs are due by January 31st and replies due by Monday, February 5th. (See BigTent’s Trump Trial Dates)
Why it matters?
J. Michael Luttig, conservative former federal judge put it best when he said “The Constitution itself tells us that disqualification of the former president is not anti-democratic. Rather, the Constitution tells us that it is the conduct that can give rise to disqualification under the 14th Amendment that is anti-democratic.”
The Colorado court determined that Trump was involved in an insurrection; a decision that was upheld on appeal. In cases without a jury, courts often undertake the task of establishing facts. The Constitution does not mandate a formal conviction of insurrection for its disqualification provision to be invoked.
The plain language of the Constitution, coupled with the factual findings of the Colorado court, mandate that Trump be disqualified. But the big questions left open by the Constitution are two:
1) Whether the president is an officer of the United States and
2) Did Trump engage insurrection or rebellion against the United States. Is the President an Officer of the United States?
On question 1- the constitution is silent on this matter. However, legislative history shows that the term “officer” was repeatedly applied to the office of President. Judge Luttig, has been studying the question with leading constitutional law scholar, Lawrence Tribe since January 6, 2021. They have concluded that the office of President does fall within the ambit of the Disqualification clause.
On question 2- where there is no jury, it is up to a judge to engage in findings of fact, which the Colorado court did when it found that Trump engaged in insurrection, which finding was upheld by the Colorado appeals court. There is nothing in the constitution that requires a conviction or charge of insurrection. Does it matter that disqualifying Trump means that people are not given the right to vote for him? No it does not. The constitution dictates qualifications one must have to run for president — age, place of birth and that outlined in the 14th amendment, section 3. Moreover, Congress may, by a vote of 2/3rds of each house remove the disqualification.
Considering how the right wing of the Supreme Court is devoted to the plain meaning of language in the constitution, it is hard to see how they will do anything other than affirm the Colorado court’s decision.
What can you do?
Support democracy by pressing for the disqualification of Trump in your state.
ABOUT AUTHOR Wendy Rogovin is a practicing attorney in Stamford, Connecticut. For the last several years she has been a solo practitioner with a general practice. She devotes a significant amount of her time to pro-bono legal work for Title IX-related matters and indigent people. She serves on the Board of Directors for BigTentUSA.