Fluid Imagination

Section 3 of the 14th Amendment to the U.S. Constitution is clear:

No person shall…hold any office…under the United States…who, having previously taken an oath…as an officer of the United States…to support the Constitution of the United States, shall have engaged in insurrection…against the same, or given aid or comfort to the enemies thereof.”

Based on the Consitution, the states of Colorado and Maine have determined that Mr. Trump’s actions leading up to and during January 6, 2021, disqualify him from holding office. Accordingly, unless overturned by the U.S. Supreme Court, the former president will not appear on their states’ ballots in the Republican primary, nor will he appear on their states’ presidential ballots in November.

This is a big deal. If the U.S. Supreme Court rules broadly rather than on a technicality, they could either prevent Mr. Trump from the ballots in every state or, once again, reinforce the claim that the United States does not operate under the rule of law.

The Findings of the Select Jan. 6th Committee

Many have argued that without Mr. Trump receiving a criminal conviction on the charge of insurrection, Colorado and Maine have prevented Mr. Trump from receiving the due process guaranteed to him in the 5th and 14th Amendments to the U.S. Constitution.

However, the United States Congress, in the form of the Select January 6th Committee Final Report, conducted nine public hearings watched by over 55 million Americans, with individual hearings earning more ratings than any other show on television at the time, excluding live sports.

The Select Committee presented testimony from more than 70 witnesses, interviewed or deposed over 1,000 other witnesses, collected and reviewed over one million documents, and watched hundreds of hours of videos taken in many cases by the perpetrators of the January 6th attack on the Capitol.

Armed with all of this evidence, the committee found that:

1. Mr. Trump “provoked his supporters to violence on January 6th”
2. Mr. Trump “plotted to overturn the election outcome”
3. Mr. Trump “unlawfully pressured State officials and legislators to change the results of the election in their States”
4. Mr. Trump “instructed…[tens of thousands of angry and…armed supporters]… to march to the Capitol on January 6th to ‘take back’ their country
5. Mr. Trump “refused repeated requests over a multiple hour period that he instruct his violent supporters to disperse and leave the Capitol, and instead watched the violent attack unfold on television”

The Committee’s final report “includes criminal referrals to the Department of Justice regarding [former] President Trump and certain other individuals.” Further, in their list of recommendations, the Committee wrote:

The Committee believes that those who took an oath to protect and defend the Constitution and then, on January 6th, engaged in insurrection can appropriately be disqualified and barred from holding government office—whether federal or state, civilian or military–absent at least two-thirds of Congress acting to remove the disability pursuant to Section 3 of the Fourteenth Amendment.

Colorado’s Ruling

While Congress has attempted to define “conduct that would constitute cause for a disqualification pursuant to section 3 of the 14th Amendment” and to declare the events of January 6th as an insurrection against the United States, both attempts languished in the House Judiciary Subcommittee on Constitution, Civil Rights, and Civil Liberties.

As a result, the District Court of the City and County of Denver, Colorado, depended on the Select Committee’s Jan. 6th report, plus a five-day hearing that included eight witnesses for the petitioners and seven witnesses for Mr. Trump, to conclude that Mr. Trump engaged in insurrection.

The district court wrote:

The investigation [of the Select Committee] was conducted by a well-staffed, highly skilled group of lawyers (including a Republican U.S. Attorney [and many Republican lawyers]) and led by a former U.S. Attorney. There was a hearing conducted over ten days and 70 witnesses testified—all of whom testified under oath. The Select Committee had large volumes of records that it independently evaluated when crafting its final report. [What’s more,] the findings of the January 6th Committee were unanimous….

Furthermore, while [Mr.] Trump spent much time contesting potential biases of the Committee members and their staff, he spent almost no time attacking the credibility of the Committee’s findings themselves.

Considering the foregoing, the Court holds that the January 6th Report is reliable and trustworthy and thereby admissible…

Armed with Congress’s Jan. 6th report and the testimony of its witnesses, the district court concluded that:

• Mr. Trump “incited imminent lawless violence”
• “[Mr. Trump’s] call to ‘fight’ and ‘fight like hell’ was intended as, and was understood by a portion of the crowd as, a call to arms”
• “[Mr.] Trump’s conduct and words were the factual cause of, and a substantial contributing factor to, the January 6, 2021 attack on the United States Capitol”
• “[Mr.] Trump materially aided the attack on the Capitol”
• “[Mr.] Trump’s 2:24 p.m. tweet caused further violence at the Capitol”
• “[Mr.] Trump had the authority to call in reinforcements on January 6, 2021, and chose not to exercise it thereby recklessly endangering the lives of law enforcement, Congress, and the attackers on January 6, 2021”
• “[E]ven after the attack, [Mr.] Trump’s [6:01 PM] tweet justified violence by calling the attackers ‘patriots'”
• “[Mr.] Trump endorsed and intended the actions of the mob on January 6, 2021”
• “[Mr.] Trump acted with the specific intent to incite political violence and direct it at the Capitol with the purpose of disrupting the electoral certification”

Finally, after examining the legal history of the word “insurrection,” the district court concluded “that the events on and around January 6, 2021, easily satisfy [the] definition of ‘insurrection’ and that “[Mr.] Trump engaged in an insurrection on January 6, 2021.”

The notion that Mr. Trump did not receive due process is laughable when we consider that:

• Mr. Trump defied a subpoena to submit documents and testify before the Select January 6th Committee
• The district court based its findings, in part, on evidence gathered from an investigation that included over a thousand witnesses, a million documents, and hundreds of hours of video footage
• Mr. Trump’s lawyers participated in a trial that “took place over five days and included opening and closing statements, the direct- and cross-examination of fifteen witnesses, and the presentation of ninety-six exhibits. Moreover, the legal and factual complexity of this case did not prevent the district court from issuing a comprehensive, 102-page order within the forty-eight-hour window [Colorado law] requires”
• Mr Trump (according to the Colorado Supreme Court) “has never specifically articulated how the district court’s approach lacked due process…He made no specific offer of proof regarding other discovery he would have conducted or other evidence he would have tendered. Moreover, his arguments throughout this case have focused predominantly on questions of law and not on disputed issues of material fact.”
• The opinion of the district court was appealed and, in its findings of fact, upheld by the Colorado Supreme Court

The Colorado Supreme Court wrote:

We do not reach these conclusions lightly. We are mindful of the magnitude and weight of the questions now before us. We are likewise mindful of our solemn duty to apply the law, without fear or favor, and without being swayed by public reaction to the decisions that the law mandates we reach.

Maine’s Ruling

Meanwhile, in Maine, the Secretary of State determined that Section 3 of the 14th Amendment disqualifies Mr. Trump from serving as President and, accordingly, ordered the former president’s name be removed from the ballot of the Republican primary in that state.

The Secretary wrote, “Even without the benefit of the [Colorado] decision, I have little trouble concluding that the events of January 6, 2021 were an insurrection within the meaning of Section Three of the Fourteenth Amendment.”

The Secretary continued:

The facts…are not in serious dispute. I conclude, as did the Colorado Supreme Court…that the record establishes that Mr. Trump, over the course of several months and culminating on January 6, 2021, used a false narrative of election fraud to inflame his supporters and direct them to the Capitol to prevent certification of the 2020 election and the peaceful transfer of power.

A candidate consent form in Maine includes a “statement that the candidate meets the qualifications of the office the candidate seeks, [and] the candidate must verify by oath or affirmation … that the declaration is true.” Such declarations can be challenged, and when they are, it becomes the duty of Maine’s Secretary of State to rule on such challenges.

Mr. Trump and others have challenged the ability of a single person to make a ruling on such a complex issue, but as the Secretary writes, “[Maine’s] statutes do not suggest that I am restricted to adjudicating straightforward questions of law or fact. Nor do I have the discretion to decline to rule in ballot qualification cases simply because they present difficult issues.”

Further, as the Secretary writes, “Mr. Trump’s concerns about the adequacy of this proceeding are..without merit. He has had the opportunity to present evidence; to call witnesses; to cross-examine; and to argue at length both the legal and factual issues germane to my decision.”

Following the lawful procedure in Maine’s law, the Secretary ruled that “the declaration on [Mr. Trump’s] candidate consent form is false because he is not qualified to hold the office of the President under Section Three of the Fourteenth Amendment.”

Will These Rulings Create Nationwide Chaos?

One of the popular arguments against the states’ rulings is that, if upheld, they will set off a firestorm that will see conservative states disqualifying liberal candidates and liberal states banning conservative candidates based on partisan rulings that this or that candidate engaged in insurrection.

For example, in an amici brief filed by 27 states, the states ask the Court if, given Colorado’s ruling, “could a state court disqualify a sitting President from running for reelection by construing a
serious misstep taken during time of war as an action that has “given aid or comfort to” enemies?”

Some Republican officials are contemplating removing President Biden from the ballot if the Court upholds Colorado’s ruling. For example, Florida’s governor said, “This is just going to be a tit for tat, and it’s just not going to end well. Could we make a credible case [against] Biden because of the invasion of 8 million [migrants]?”

These states urge the Court to make a single, nationwide ruling to prevent this chaos from breaking out.

Shouldn’t Congress Decide To Whom Section 3 Applies?

Section 3 was created to prevent Americans who fought for and oversaw the Confederate States of America from serving in political office following the failure of their insurrection.

In 1869, Chief Justice Samuel Chase, in his capacity as a circuit court judge rather than a Supreme Court judge, held in Griffin’s Case that “Section 3 is not self-executing” (according to this amici brief filed by a professor from the Maynooth University School of Law).

In this particular case, a man indicted in the state of Virginia with intent to kill argued that because the judge who oversaw his trial provided “aid and comfort” to the Confederates of Virginia, any rulings by him following those actions, including any guilty rulings against the defendant, ought to be vacated by Section 3 of the 14th Amendment.

In his ruling, the Chief Justice wrote: “It must be ascertained what particular individuals are embraced by the definition [of Section 3], before any sentence of exclusion can be made to operate. To accomplish this ascertainment and ensure effective results, proceedings, evidence, decisions, and enforcements of decisions, more or less formal, are indispensable; and these can only be provided for by congress.”

He points to Section 5 of the amendment as evidence, which reads, “congress shall have power to enforce, by appropriate legislation, the provision of this article.”

He argues that Section 5 demonstrates it was:

…the intention of the people of the United States, in adopting the fourteenth amendment,…to create a disability…to be made operative in other cases by the legislation of congress in its ordinary course.

The amici argue that Griffin’s Case sets the terms of Section 3 and, therefore, the Colorado Supreme Court and the Maine Secretary of State do not have the power to determine who has or has not engaged in insurrection against the government.

Colorado’s Response to Griffin’s Case

The Colorado Supreme Court did not ignore Griffin’s Case. They explain that the case’s particulars involved whether all of the official acts of officers of the provisional governments of the formerly Confederate states, governments mostly made up of individuals affected by Section 3, were annulled by Section 3. If he agreed with Grifffin’s argument, it would be “impossible to measure the evils which such a [decision] would add to the calamities which have already fallen upon the people of these states.”

Accordingly, he decided to make the “argument from inconveniences,” which holds that when faced with two or more reasonable interpretations, the interpretation “is to be preferred which best harmonizes the amendment with the general terms and spirit of the act amended.”

Instead of throwing out virtually every official act of the provisional governments of the former Confederate states, Chief Justice Chase decided it was more convenient to reject Griffin’s argument.

The Colorado Court explains that “Griffin’s Case concludes that congressional action is needed before Section Three disqualification attaches, but this one case does not persuade us of that point.”

They point out that over the past 150 years, Griffin’s Case has been the subject of “persuasive criticism.” Furthermore, perhaps more importantly, they highlight that Griffin’s Case is not binding on the Colorado Supreme Court’s decisions and, therefore, “is of no particular significance.”

They argue that while Congress may establish a process for determining who Section 3 applies to, such a possibility does not prevent the state of Colorado from making its determination. The state has created a lawful procedure to determine whether a candidate is qualified, and “the process is sufficient to permit a judicial determination of whether Section 3 disqualification has attached to a particular individual.”

The Colorado court concludes “that Section Three is self-executing in the sense that its disqualification provision attaches without congressional action.”

The Colorado Court didn’t make this argument. Still, I’d like to point out that Chief Justice Chase said, “proceedings, evidence, decisions, and enforcement of decisions, more or less formal [italics added], are indispensable [for Section 3 determination]; and these can only be provided for by congress.” It seems to me that the Select Committee’s investigation on behalf of Congress involved more or less formal proceedings, evidence, decisions, and recommendations for enforcing those decisions (which the Executive branch did not choose to execute).

Even though Griffin’s Case may no longer be persuasive and is, undoubtedly, not binding, Colorado’s ruling, aided by the Select Committee’s investigation and final report, still satisfies it.

What About the Senate’s Acquittal of Mr. Trump’s Impeachment by the House?

The 27 states (and others) point out that “Congress vigorously applied [its investigatory power] to former President Trump, as the House impeached him twice. But the Senate acquitted him both times, even when political opponents accused him of fomenting insurrection, much as the lower court held here.”

Holding that Mr. Trump engaged in insurrection “express[es] lack of the respect due to Congress.” The states argue that “Colorado has effectively rendered its judgment that Congress was wrong during the impeachment proceedings.”

The states argue that the separation of powers in the U.S. Constitution forbids Colorado from rendering such a judgment.

Based on these arguments, the states advise the U.S. Supreme Court should overrule Colorado and Maine.

Colorado’s Response

Article II, Section 1 of the U.S. Constitution gives states absolute power over elections, provided “they do not run afoul of another constitutional constraint.”

The Colorado Supreme Court reasons that “states may exercise their …power to limit presidential ballot access to those candidates who are constitutionally qualified to hold the office of President… Moreover, several courts have expressly upheld states’ ability to exclude constitutionally ineligible candidates from their presidential
ballots.”

The Court continues, “The question then becomes whether Colorado has exercised this power through the [state’s] Election Code. We conclude that it has.”

The Colorado courts did not address the specific question as to whether the Senate’s acquittal of the House’s impeachment of Mr. Trump prevents them from disagreeing with the Senate. However, it must be noted that Mr. Trump’s impeachment trial began on February 9, 2021, and concluded on February 13, 2021, while the Select January 6th Committee was not formed until July 1, 2021. Accordingly, the Senate did not have the benefit of the committee’s investigation and final report when it determined whether “Donald John Trump engaged in high Crimes and Misdemeanors by willfully inciting violence against the Government of the United States.“

Now Comes the U.S. Supreme Court

Both the Colorado Supreme Court and the Secretary of State of Maine acknowledged the import of the cases. They suspended the effect of their decisions until the United States Supreme Court decided whether to rule on the issue.

On January 5, 2024, the Supreme Court did just that, granting Mr. Trump a writ of certiorari and setting the date for oral arguments as February 8th.

It’s easy to assume that a majority of the justices of the Supreme Court will rule in Mr. Trump’s favor, especially since he appointed a third of them to their seats. But these justices don’t always rule the way people assume they will.

The Court May Surprise Us

In Moore v. Harper, three of the conservative justices joined their more liberal brethren to shut down a fringe theory that would have allowed even more partisan gerrymandering by state legislatures.

In another case related to congressional mapping, two of the conservative justices agreed with their more liberal brethren that Alabama violated the Voting Rights Act. This was despite most people believing the conservative majority would use the case to diminish the Voting Rights Act beyond what they already had.

The Court also upheld the federal government’s sole authority regarding immigration and deportation, overturning two states’ attempts to challenge the Biden administration’s policies. Just yesterday, in fact, two of the conservative justices, Chief Justice Roberts and Justice Coney-Barrett, joined Justices Brown-Jackson, Kagan, and Sotomayor in favor of the Biden administration in another immigration-related case, The Department of Homeland Security v Texas.

Finally, against all odds, in Haaland v. Brackeen, the Court protected the Indian Child Welfare Act, which works to keep Indigenous American children with Indigenous American families and tribes.

The Court’s eventual ruling on Mr. Trump’s validity as a presidential candidate should be interesting. To understand why, here’s what a member of the NY Times editorial board said about it:

Part of me thinks there’s just no way [the U.S. Supreme Court is] going to rule in favor of the Colorado Court. They’re not going to uphold the ruling…because that would effectively have to tie all 50 states to the same standard and remove Trump from the ballot in all 50 states. I don’t think the Supreme Court is ready to take a step like that.

At the same time, I think the legal analysis by the Supreme Court of Colorado is hard to argue with. And I think when you look at the way that this current US Supreme Court likes to talk and think about cases and history with its focus on originalism, the Colorado Supreme Court stayed pretty close to those values. And it’s going to be tough for the Supreme Court to talk its way out of that.

– “How Could the Supreme Court Respond to Colorado: Two Editorial Board Writers Discuss,” The New York Times

I agree with Mr. Wegman. The Colorado argument is persuasive, and because it’s obvious that Mr. Trump engaged in an insurrection, he should be barred from Federal office.

However, I don’t expect the Supreme Court to be brave enough to make that call. If they have any integrity, they will issue a narrow ruling that allows states to determine for themselves, through legal means, whether Mr. Trump should be barred from office. However, if they follow the law entirely, they will bar him nationwide.

Unfortunately, the cynicism the Roberts Court has taught us makes me believe we’ll receive an illogical opinion whose notoriety will only be matched by the horrendous logic displayed in Bush v. Gore.