Wednesday, September 13, 2023

Debate about Trump's possible disqualification is no longer an academic exercise; lawsuit in Colorado makes the 14th Amendment's implications very real

The idea that Donald Trump is disqualified from serving as president under the 14th Amendment to the U.S. Constitution has become part of what might be called an "academic exercise," as legal scholars and ethics experts opine on the possible application of  a law that dates to the Civil War.

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, represented by Citizens for Responsibility and Ethics in Washington, and the firms Tierney Lawrence Stiles LLC, KBN Law, LLC and Olson Grimsley Kawanabe Hinchcliff & Murray LLC.

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,” CREW President Noah 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

While the stakes surrounding Donald Trump’s disqualification in Colorado are greater than in the Griffin case, the law and many underlying facts are the same. Based on its laws, the calendar, and our courageous set of plaintiffs and witnesses, Colorado is a good venue to bring this first case, but it will not be the last.

“As a longtime Republican who voted for him, I believe Donald Trump disqualified himself from running in 2024 by spreading lies, vilifying election workers, and fomenting an attack on the Capitol,” said conservative columnist for the Denver Post and Republican activist Krista Kafer. “Those who by force and by falsehood subvert democracy are unfit to participate in it. That’s why I am part of this lawsuit to prevent an insurrectionist from appearing on Colorado’s ballot.”

The New Republic's Matt Ford wrote a recent piece (9/8/23) under the headline "It's Time to Take Trump's Disqualification From the Presidency Seriously." Writes Ford who says the issue will wind up before the U.S. Supreme Court:

As I noted earlier this month, there’s an ongoing legal debate over whether Trump meets the conditions for disqualification under Section 3. The provision dates back to 1868, when Radical Republicans in Congress sought to break the ex-Confederate stranglehold in Southern state governments. Since the United States did not face another civil war, rebellion, or insurrection until 2021, Section 3 was largely defunct after the Reconstruction era came to a close. Despite this, Trump’s actions—and the growing legal efforts to hold him accountable for them—have brought matters to a head: It’s time for public officials to start taking the disqualification efforts seriously.

Trump's efforts to overturn the presidential election, coupled with his encouragement of a violent mob that disrupted the electoral vote count on January 6, breathed new life into the provision. While much of the attention has come from liberal legal scholars, they are not alone in suggesting that Trump may no longer be eligible to run for president. Michael Stokes Paulsen and William Baude, two of the nation’s leading originalist scholars, argued in a comprehensive law review article published last month that the provision remains in force, that no congressional action is needed to carry it out, and that Trump meets the criteria for disqualification under it.

In a piece at MSNBC, CREW's Noah 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.

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