The Coming Showdown at The Supreme Court
Now before the U.S. Supreme Court is Trump’s expedited appeal of the Colorado Supreme Court’s decision holding that Trump is barred from further public office by reason of the Disqualification Clause found in Section Three of the FourteenthAmendment. That provision states:
“No person shall … hold any office, civil or military, 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 or rebellion against the same, or given aid or comfort to the enemies thereof.”
On its face the Disqualification Clause appears very simple and straight forward; it targets elected officials of the federal government who participate directly or indirectly in an “insurrection.” In considering that provision’s applicability to Donald Trump, the Colorado Court’s decision carefully reviewed Trump’s series of efforts to overturn the results of the 2020 election as well as his efforts to invite and motivate his upporters to attack the Capitol on January 6th. That attack represented Trump’s final attempt to overturn the election of Joseph Biden as our nation’s 46th president. The facts laid out in that ruling paint a vivid picture of how Trump’s actions transcended mere protected political speech and represented a well-planned effort to undermine the Constitutionally prescribed procedure for the transfer of executive power.
The problem, of course, is that nothing is simple when it comes to parsing the meaning of words drafted 150 years ago in reaction to very different circumstances, especially when the outcome of that determination will have immediate political ramifications as well as a major impact on the future direction of our nation. The problem is further complicated by the fact that lawyers are paid to vigorously defend the interests of their clients which often prompts them to make arguments which only have a remote chance of success even in a very friendly tribunal. The briefs in this case have already been filed and the oral argument before the Supreme Court is scheduled for February 8th. That argument could signal whether the Court is likely to again come to Trump’s rescue or bring his political career to a sudden halt.
There is little doubt as to how six of the Court’s Justices are likely to rule. Each of the three liberal justices (Sotomayor, Kagan and Jackson) can be expected to vote for affirming the decision of the Colorado Supreme Court which drew heavily on the detailed and well-reasoned factual findings of District Court Judge Sarah Wallace (discussed in an earlier article).
At the other end of the spectrum, Justices Thomas, Alito and Gorsuch are likely to conclude that the Disqualification Clause does not apply to Former President Trump’s effort to again become our nation’s president. The problem they face is that the facts of the case seem to be closely aligned with the wording of the Disqualification Clause, possibly requiring them to depart from their Originalism interpretative guidelines to rule in Trump’s favor. Therefore, how they will arrive at a conclusion favorable to Trump is not clear but the fact that they each will do so seems extremely likely from their prior decisions. As discussed below, however, there nevertheless is an outside possibility they might ultimately conclude otherwise.
It would be an exaggeration to say that Justices Kavanaugh and Barrett occasionally vote with the Court’s liberal justices although both have done so in the past in politically sensitive cases. For example, Justice Kavanaugh joined the Court’s liberal justices in safeguarding the Affordable Care Act. Correspondingly, Justice Barrett joined the Court’s three liberal justices in holding that Texas has no right to prevent the federal government from exercising control over the nation’s southern border. In each of these cases, Chief Justice Roberts also played a key role. Indeed, the Chief Justice appears to be particularly concerned about the Court’s reputation which has undergone a sharp decline since he became the Court’s Chief Justice. This opens the door to the possibility that the Supreme Court might actually hold that Trump’s actions in connection with the January 6th Capitol insurrection disqualifies him from again serving as the nation’s president.
Like most cases (particularly hotly contested ones), this one has drawn widespread attention. In fact, in addition to the briefs submitted on behalf of each of the case’s four parties, the Court has received an additional 49 briefs from amicus curiae (friends of the Court) arguing how the various issues raised by the Appellants (Donald Trump and the Colorado Republican Party) should be resolved. Many of these amicus briefs came from current and former political office holders and organizations, one of which was submitted on behalf of 179 Republican members of the U.S. Congress. Others were submitted on behalf of political action committees, legal scholars and historians.
Although all briefs are read by each of the justices (or one or more of their clerks), for the most part the justices will devote their primary attention to those submitted on behalf of the parties in the case because only the attorneys representing the parties will appear before the justices in the oral argument. Nevertheless, it is not unusual for a case to be decided on the basis of arguments submitted on behalf of amicus curiae. This is more likely to happen in a case like this one in which the issues have not been extensively explored by the courts.
Now, to the issues and the arguments. For simplicity sake (and the likely limits of your respective attention spans), I will focus principally on the arguments made on behalf of the Appellants and the Respondents (six Colorado registered Republicans and one Colorado resident without a political party affiliation). The issues are identified in the briefs on behalf of Trump and the Colorado Republican Party and include the following:
The Disqualification Clause does not apply because the President is not an “officer” as that term is used in the Disqualification Clause;
Trump did not engage in or render aid to those involved in an insurrection;
The Disqualification Clause vests the U.S. Congress with the sole power to determine how it should be interpreted and implemented;
The Colorado Supreme Court ignored Colorado Law which establishes the specific qualifications for listing candidates on a ballot; and
The First Amendment allows political parties freedom to select their nominees for public office.
As previously reported, District Court Judge Sarah Wallace had premised her dismissal of the Respondents’ efforts to strike Trump’s name from the Republican Party’s primary ballot because she was unable to conclude that the President of the United States is an “officer” as that term is used in the Disqualification Clause. The Colorado Supreme Court reversed that aspect of Judge Wallace’s decision explaining that
“in interpreting a constitutional provision, our goal is to prevent the evasion of the provision’s legitimate operation and to effectuate the drafters’ intent. . . .If the language is clear and unambiguous, then we enforce it as written, and we need not turn to other tools of construction. However, if the provision’s language is reasonably susceptible of multiple interpretations, then . . . we may consider the textual, structural, and historical evidence put forward by the parties, and we will construe the provision in light of the objective sought to be achieved and the mischief to be avoided,”
Using this approach, the Colorado Supreme Court went on to conclude that it would be absurd not to apply the Disqualification Clause to the office in which an insurrectionist could cause the most “mischief” which the provision seeks to avoid.
Trump contends that he did not take an oath to uphold the Constitution as an “officer” of the United States because the Constitution makes three references to “officers of the United States” which do not include the President. Those omissions, however, are because they are found in provisions of Article II which sets forth the President’s powers in dealing with “officers of the United States.”
This argument is also clearly refuted in an amicus brief submitted by 25 legal scholars. They point out that contemporary statements made during the debates over the Disqualification Clause as well as discussions regarding initial applications of it shortly after the ratification of the Fourteenth Amendment and other contemporary discussions make it clear that the president is comprehended within the term “officer of the United States.” They also argue that the framers of the original 1787 Constitution refer to the president as “a national officer of the United States.” It would thus appear that Trump’s contention that the president is not comprehended by the Disqualification Clause has little merit.
Secondly, Trump argues that he did not participate in an insurrection. The trial before Judge Wallace (in which Trump and the Colorado Republican Party participated as “intervenors”) addressed this contention at length. Based on the evidence amassed during the trial (which included the report of the January 6th Congressional Committee) Judge Wallace concluded that there was clearly an effort to obstruct the Congressional proceeding to confirm the results of the election. Similarly, Judge Wallace concluded that Trump participated in that event by both prompting his supporters to take action to stop the proceeding and by expressly declining to interfere with their attack until it had become clear that the effort was not going to achieve its intended goal. It should be noted that these are “findings of fact” (as opposed to “conclusions of law”) which appellate courts are required to accept unless they conclude that those findings are “clearly erroneous.” Judge Wallace’s well-reasoned discussion of how she came to make her finding makes reversal of her findings highly unlikely.
Trump’s contention is that he was merely exercising his Constitutional right of free speech in asking his supporters to make sure that the 2020 presidential election had not been stolen by nefarious means. This contention, of course, is belied by the fact that Trump knew that his assertions of a stolen election were false. He had been so informed by those within his administration who observe election security as well as the Department of Justice which had conducted an investigation into allegations of election fraud. He also knew that over 60 courts had found no evidence of election fraud.
The Respondent’s brief also pointed out that a prior Supreme Court decision made it clear that the Constitutional protection of “free speech” does not pertain to situations in which speech “is directed to inciting or producing imminent lawless action and likely to produce such action.” The factual evidence compiled by the January 6th Special Committee had found that Trump knew that many of his supporters were armed. In addition, there was expert testimony explaining how Trump’s words would have precipitated the actions of those individuals. It therefore seems highly unlikely that the Court will use this contention as a basis for reversing the decision of the Colorado Supreme Court.
Trump’s third argument is that the Disqualification Clause vests Congress (and not the courts) with the power to interpret its application. This contention is also “a reach” (in legal parlance) or “a hail Mary attempt” (in sports parlance). Although the Disqualification Clause provides the Congress with the power to pardon transgressions encompassed by the provision, it makes no mention of excluding the judicial system from interpreting its application.
A related issue is whether the Disqualification Clause is “self-executing”; i.e. whether an Act of Congress is required before it may be applied. This contention was discussed in detail in the brief submitted on behalf of the Colorado Republican Party. The essence of that brief’s contention is that in some of the civil rights cases brought under other sections of the Fourteenth Amendment the Supreme Court has held that the provision was not self-executing and required an Act of Congress before they becomes actionable. There are two arguments against this contention. First, Congress did pass a statute echoing the terms of the Clause but without setting forth guidance as to when and how it was to be applied. This seemingly implies that if Congress felt that guidance was needed, that guidance would have been included in the statute it enacted. Secondly, the Disqualification Clause has been deemed self-executing by lower courts that considered previous cases.
Trump’s argument was also countered by an extensive amicus brief submitted on behalf of two dozen “history professors.” That brief concludes that Congress does not have exclusive jurisdiction in considering the application of the Disqualification Clause and the states have long been deemed to have the power to determine the eligibility of candidates named on the ballot of a federal election.
The fourth issue raised by Trump is that the Colorado Supreme Court ignored Colorado Law. This contention focuses on a provision of the Colorado Election Law which delineates who may be listed on a state regulated ballot and gives the courts no power to rule otherwise. This argument would only appeal to a trial lawyer as it is would establish an absurd result; namely, that the courts have no power to exclude an individual from being named on a ballot for a federal office which he or she is disqualified from holding.
The fifth assertion voiced by the Colorado Republican Party is equally absurd; namely, that the First Amendment guarantees political parties complete freedom to select their nominees for public office. While the nation’s laws do not normally prohibit individuals and organizations from doing or saying stupid things, it is patently absurd allow them to do so. More specifically, it makes no sense to permit political parties to deceive the people they purport to serve into voting for candidates who are not allowed to hold the office they are seeking. To paraphrase Charles Dickens (in Oliver Twist): If this is the law, “the law is an ass.”
Underlying this case are a number of important non-judicial considerations, most of which are not included in the briefs filed with the Court. Trump and his attorneys and Congressional allies have voiced the concern that applying the Disqualification Clause to Trump would disenfranchise literally “tens of millions” of voters currently poised to vote for Trump in the general election. Of course, blame for that eventuality should rest on Trump and not the Court as a ruling to that effect would be wholly attributable to Trump’s own actions.
Another non-judicial argument which the Appellants have voiced is that disqualifying Trump from again holding public office would unleash violence in the streets of a magnitude that this nation has never previously experienced. Such a threat must be taken seriously as Trump has demonstrated over and over again that his supporters will take action against any and all individuals whom Trump has identified as a threat to the nation (AKA Trump). You need only consider the attack on Nancy Pelosi’s husband and the attempted abduction of Michigan’s Governor Gretchen Whitmer. This time, the Oath Keepers, the Proud Boys and the Three Percenters will not leave their AR-15s behind when they take to the streets. While it can be argued that the prison sentences handed out following the January 6th Capitol siege should discourage any such uprising, that is far from a sure thing. That’s because loyalties to Trump are strong enough to cause his followers to accept his most egregious lies and support him notwithstanding the established facts and the multitude of criminal and civil charges against him.
Conversely, those who would have Trump disqualified argue that any decision in Trump’s favor would place our democratic system in jeopardy as Trump has already announced that, if elected, he will act in a dictatorial manner and use the might of the federal government to attack his enemies. There can be little doubt that he would do so as he has threatened on numerous occasions. It should also be remembered that he terminated more than a dozen of his Cabinet members whom he deemed insufficiently loyal to him and he even caused the IRS to subject James Comey and Andrew McCabe to exhaustive tax audits. Even more telling, he directed the Capitol rioters to attack Vice President Pence because Pence wouldn’t go along with his plot to reverse the outcome of the 2020 presidential election.
The Respondents also argue that the Court’s failure to disqualify Trump from holding public office would undermine the nation’s Constitution and further erode public confidence in the rule of law. Trump’s repeated tactic of delaying court proceeding against him have already made it abundantly clear that our judicial system does not provide “Equal Justice Under Law.” It is reminiscent of the quote attributable to Anatole France that “The law in its majestic equality forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.” Public confidence in the perceived integrity of our judicial system (and SCOTUS in particular) has already been greatly diminished over the past two decades and the Court’s failure to disqualify Trump from holding public office, no matter how cleverly articulated, will have a further diminishing impact.
There is one other non-judicial consideration which could determine the outcome of this case. That is the evolving presidential polling data. Until this past week, those polls revealed that Trump was slightly favored over President Biden in the coming presidential election. This past week, however, some polls revealed that Biden has pulled ahead of Trump presumably because Trump has made a number of increasingly unhinged remarks that were completely divorced from reality. In addition, a second jury unanimously held against him raising doubts as to whether the “Teflon Donald” can avoid a criminal conviction. While this has been happening Nikki Haley continues to hold a five percentage point lead over President Biden, making her appear to be a potentially more attractive nominee.
While even a verdict in excess of $100 million against Trump and the Trump Organization in the fraud case now pending before Judge Engoron and one or more criminal convictions are unlikely to have a significant impact on Trump’s millions of loyal supporters, it could (and most likely will) continue to move the polling data further in President Biden’s favor. That, in turn, could cause Leonard Leo and Harlan Crow to change their view as to whether their interests would be best served by having Trump become the Republican Party’s nominee in the upcoming presidential election. They undoubtedly are already concerned that Trump (like the pied-piper of Hamelin) is leading the Republican members of the House toward political suicide by pressuring them to vote against further aid to Ukraine and the bipartisan legislation drafted by Senate to address the nation’s immigration issues. Should Leo and Crow make their concerns known to the Court’s conservative justices, even Justices Thomas, Alito and Gorsuch might be moved to affirm the Colorado Supreme Court’s decision.
In the final analysis, one of these non-judicial arguments (and not the legal ones propounded in the briefs submitted to the Court) is likely to determine the Court’s decision. Of course, the Court will not articulate a non-judicial argument as prompting its ruling. Instead, it will clothe it in a recognized judicial doctrine or argument based upon an interpretation of the language of the Disqualification Clause. For example, it might decide that the Disqualification Clause does not apply because it doesn’t want to disenfranchise 50 million Trump supporters while writing that it reached that decision because the Colorado Supreme Court acted beyond the scope of its authority. Conversely, it might uphold the decision of the Colorado Supreme Court because it believes a second Trump presidency will undermine our nation’s democratic system of government. Moreover, it might even take that path simply to fortify its own faltering reputation.