Trump’s Fourteenth Amendment Problem

​ On November 15th, Colorado State Court Judge Sarah B. Wallace issued a 102-page decision in the case of Norma Anderson et al. v. Jena Griswold in which she concluded that Donald J. Trump had incited the January 6th Capitol insurrection. This was a particularly well organized, well documented and well-reasoned decision with one important exception; Judge Wallace went on to hold that Trump was nevertheless not disqualified from running for President because Section 3 of the Fourteenth Amendment to the U.S. Constitution (commonly referred to as the “Disqualification Clause”) does not apply to those seeking the Office of the President.  Similar actions had been instituted in at least three other states (Minnesota, New Hampshire and Michigan), however, this was the first such case that included findings of facts. As such, it sets the stage for a definitive decision by the U.S. Supreme Court (SCOTUS) on Trump’s eligibility to be re-elected.

Before that can happen, however, this case first will have to be reviewed by the Colorado Supreme Court to which both the Petitioners and Trump have already appealed. The Colorado Supreme Court responded quickly, scheduling oral arguments in the case on December 6th (this is not a typo). The speed with which the Colorado high court has acted indicates that it might render its decision before the end of the year. That decision will undoubtedly be appealed to SCOTUS but it’s anybody’s guess whether SCOTUS will decide this matter before the 2024 elections.

The Disqualification Clause which lies at the heart of Trump’s latest legal problems provides that

“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.” 

The current group of cases seeking to prevent Trump from running for re-election were precipitated by two articles published in mid-August by two pairs of Constitutional scholars. The first, by two conservative law professors, William Baude (Professor of Law at the University of Chicago Law School) and Michael Stokes Paulsen (Professor of Law at the University of St. Thomas Law School) was posted on line on August 14th and is scheduled to appear next year in the University of Pennsylvania Law Review. In their article Professors Baude and Paulsen concluded that, because of his behavior surrounding the events of January 6th, the Disqualification Clause prohibits Trump from running for or holding any federal office unless Congress grants him amnesty. Five days later, Laurence Tribe, a Harvard Law professor, and J. Michael Luttig, a retired federal appeals court judge, wrote an article for The Atlantic in which they essentially endorsed the views advanced by Professors Baude and Paulsen.

The Disqualification Clause was adopted following the Civil War as a means of preventing those who held offices in the U.S. Government and fought for the Confederacy from being able to again serve as an officer of the federal government. It was immediately and successfully invoked with respect to handful of participants in the Civil War; however, approximately 150,000 of those who fought for the Confederacy were later pardoned. More recently, the Disqualification Clause was invoked to remove from office a rural New Mexico County Commissioner who had entered the Capitol on January 6th and was later convicted of a misdemeanor. The Disqualification Clause was also the focus in two litigations brought in 2022 to prevent the re-election of Republican House Representatives Madison Cawthorn and Marjorie Taylor Greene. Cawthorn’s case became moot when he lost the primary election, and a judge ruled against the lawsuit seeking to block Greene’s re-election. The result is that 160 years after its ratification the Disqualification Clause remains largely unexplored.

The case before Judge Wallace was initiated on behalf of six Colorado voters (five registered Republicans and one unaffiliated voter). Under Colorado law where this case was brought, “interested parties” are allowed to intervene and Donald Trump, acting in concert with the Colorado Republican State Central Committee, chose to do so. Their decision to intervene involved a calculated risk as it will severely limit their ability to challenge on appeal any findings of fact made by Judge Wallace.

Trump undoubtedly felt that he had good arguments to counter the petitioners’ assertions that the Disqualification Clause could be used to prevent him from again running for President. This was not an irrational decision as evidenced by the fact that courts in Minnesota, New Hampshire and Michigan had already declined to apply the Disqualification Clause to his efforts to gain re-election. The Minnesota Supreme Court had dismissed the case before it, holding that the Disqualification Clause only applies to general elections and does not apply with respect to a primary election.  In Michigan, a state court judge reached the same conclusion. In New Hampshire, a U.S. District Court judge ruled that a citizen of Texas who had initiated that case lacked standing to challenge the placement of Trump’s name on the New Hampshire ballot.

In the Colorado case, Trump made a number of pre-hearing motions to have the petitioners’ proceeding dismissed, including one that distinguished between the Republican primary election and the general election. Judge Wallace, however, disagreed with the conclusions reached by the courts in Minnesota and Michigan. She found that it would be inappropriate to delay consideration of the applicability of the Disqualification Clause until after a state’s primary election. Such a ruling would (a) place voters in the uncomfortable position of having to decide whether to vote for an individual who might later be disqualified and (b) would place the candidate’s party in jeopardy of having its voters nominate a candidate who might later be disqualified from serving.

Other preliminary motions made by Trump included one seeking to remove the case to a federal court, one asserting that application of the Disqualification Clause was a political issue not subject to judicial determination, and two others asserting that the petitioners lacked standing to assert their claim and that their ’ potential injuries had not been sufficiently articulated in their complaint. Trump also sought to have the matter dismissed asserting that the Colorado Secretary of State has no authority to remove from the ballot the name of a candidate that had fulfilled the state’s requirements to be so listed. He even asserted that Judge Wallace’s court was an inconvenient forum. Most of these motions were denied, although some were deferred until after the hearing when the parties would have a further opportunity to brief and argue their positions.

Trump also raised an important issue; namely, whether the Disqualification Clause is self-executing or whether it requires an Act of Congress detailing when and how it may be invoked. That issue had been addressed in some of the cases brought immediately following the ratification of the Fourteenth Amendment, but it had never been addressed by the appellate courts. The two articles noted above encouraging the application of the Disqualification Clause had concluded that further guidance from Congress was not required. This is largely because in 1948 Congress did enact a criminal statute (18 USC  2383) essentially ratifying the Disqualification Clause but without providing further guidance as to when and how it should be applied. Judge Wallace concluded that an Act of Congress was not required before the Disqualification Clause could be employed.

Another significant pre-hearing motion was whether the report of the January 6th Select Committee could be admitted into evidence. Trump made a motion to exclude it, arguing that it was largely hearsay and politically tainted. Judge Wallace denied this this motion, finding that the burden was on Trump to substantiate his assertions. In support of her rejection of Trump’s motion, she recited legal precedents holding that reports of governmental agencies are presumptively admissible if they “reliable” and “trustworthy.” She then went on to explain why the January 6th Committee’s Report met those requirements. Specifically, she rejected that the report was tainted by political bias, pointing out, that it was the unanimous report of the Committee which included two Republican House member. She also rejected that its findings were unreliable because the Committee had reviewed millions of documents and thousands of hours of video tapes and interviewed over 1,000 witnesses, the vast majority of which were not only Republicans, but were employees of the Trump administration.

A hearing was then conducted over a period of five days in which fifteen witnesses testified, including seven witnesses called by Trump. Judge Wallace’s decision briefly describes the testimony of each of these witnesses and her assessment of the relevance and credibility of their testimony. Based upon the first-hand testimony of four witnesses who were at the Capitol when the siege took place and the video tapes of that event, Judge Wallace had little difficulty in finding that there was a violent effort to prevent the U.S. Congress from confirming the results of the Electoral College vote. She also found that Trump had engaged in a prolonged and deceitful campaign to discredit the results of the 2020 presidential election and a multi-faceted campaign to overturn the results of the election. These efforts culminated in Trump’s efforts to organize the “Stop the Steal” rally held on the morning of January 6th. At that rally, those whom Trump had chosen to speak, sought to arouse the ire of the rally’s estimated 50,000+ attendees, almost half of whom did not enter the rally’s controlled perimeter so as to avoid the Secret Service’s efforts to confiscate the weapons they were carrying.

Judge Wallace found that Trump had personally participated in the effort to incite the ensuing Capitol riot.  That finding was based largely on the testimony Professor Peter Simi, a sociology professor at Chapman University and an expert in political extremists and how they communicate.  Professor Simi testified that far-right groups routinely rely on implicit, plausibly deniable calls for violence, and that Mr. Trump had communicated with the militia groups that led the attack on the Capitol in that way. His explanations helped Judge Wallace understand how words like “you have to fight to save your country” might seem innocuous to average listeners would be interpreted differently by political extremists, like The Oath Keepers, The Proud Boys and the Three Percenters.  Professor Simi had previously closely studied each of these militia groups who had come to the rally dressed in battle garb and who had led the attack on the Capitol.

At the conclusion of the hearing the parties were permitted to make proposed findings of fact and law and to submit legal briefs in support of their contentions. Trump argued that he did not engage in or otherwise assist an insurrection against the U.S. government. Instead, he characterized his actions as simply seeking to make sure that the electoral process was conducted fairly and correctly. Understandably, Judge Wallace did not accept this contention, finding that Trump had been advised multiple times by a host of his closest and most knowledgeable advisors that the 2020 elections had been thoroughly investigated and found to have been free of fraud that would have affected the election’s results. She also noted Trump’s other efforts used false claims to cause the decision of the nation’s voters to be cast aside.  Judge Wallace therefore concluded that Trump’s efforts were not intended to assure the propriety of the election, but rather to thwart its results.

This issue also entailed some legalistic word games as to whether “inciting” an insurrection was the same thing as “supporting” those who engaged in an insurrection. The petitioners’ offered the testimony of Professor Gerard Maglioscca, an expert on the Disqualification Clause teaching at the Indiana School of law. Professor Maglioscca testified that at the time the Fourteenth Amendment was ratified, “engaging in an insurrection” had been understood to include verbal incitement of force to prevent the execution of the law. In response, Trump offered the testimony of Robert Delahunty, a professor of constitutional law at the St. Thomas School of Law in Minneapolis who contended that the Disqualification Clause was vague and required clarification by Congress. Judge Wallace found the testimony of both of these witnesses helpful, while expressing the view that Professor Maglioscca appeared to be more knowledgeable. Based upon the history leading to the adoption of the Disqualification Clause, Judge Wallace found that “supporting those who engaged in the insurrection” encompassed “individuals who incited the insurrection.”

Another serious issue raised by Trump was whether his speech at the Stop the Steal rally was protected by the First Amendment. In deciding that question Judge Wallace relied on SCOTUS’s 1969 decision in Brandenburg v. Ohio which held that the First Amendment protection of the “freedom of speech” does not protect speech intended to incite violence. The Brandenburg decision places three requirements for overcoming the First Amendment’s protection of free speech: “imminence”, “intention” and “tendency to produce violence.” Judge Wallace found that each of these requirements applied to Trump’s speech.

Despite these findings of law and fact, Judge Wallace nevertheless concluded that the Disqualification Clause did not apply to Trump’s quest to be re-elected. Trump’s lead counsel, Scott Gessler, had argued that the very notion that a single judge could render a decision that would thwart the will of a majority of Americans was inconsistent with a democratic system of government. Although Judge Wallace did not embrace this argument, it may have prompted her to conclude that the Office of the President should not be included among the positions that are subject to the Disqualification Clause.

Judge Wallace’s understandable concern over the possibly that she might be thwarting the will of the nation’s voters led her to seek an alternative rationale. She observed that there is “scant direct evidence” that the Disqualification Clause was intended to apply to the presidency. On the contrary, she noted that an early draft of the Disqualification Clause had specified the presidency and vice presidency, but the final version did not. Instead, it simply  refers to “any office under . . . the United States,” a phrase that elsewhere in the Constitution is not intended to include the federal government’s top two offices. Judge Wallace thus concluded that there is “some doubt” as to whether the Disqualification clause was intended to apply to the Office of the President.

This is a highly dubious conclusion, particularly for a jurist as competent as Judge Wallace. While admittedly the Disqualification Clause does not specifically name the “president,” its clear purpose is to preclude persons who have acted adversely to the nation and its Constitution from being placed in a position in which they can affect the management of the nation. There is in fact no office within the federal government in which such an individual could do more harm than the presidency. What distinguishes the president and the vice president from other governmental offices is that they are elected rather than appointed. While that is an important distinction, it must be remembered that the Disqualification Clause also expressly prohibits insurrectionists from serving as a members of Congress or as presidential electors which are also an elected offices.

There is another consideration which casts doubt on Judge Wallace’s finding; namely, that the Disqualification Clause establishes a Constitutional requirement similar to the requirements that the president be at least 35 years old and a natural-born citizen. These conditions preclude service as the president irrespective of whether the individual has received sufficient votes to be elected. This strongly implies that the elected nature of the Office of President should not be a basis for excluding it from the operation of the Disqualification Clause.

Clearly, Judge Wallace was well aware of the questionable nature of her ruling. In this very same decision, while discussing the “incitement”/”engagement” semantic exercise noted above, she wrote that Constitutional provisions must be written broadly and therefore “must receive a broad and liberal interpretation.” In addition she wrote “A Constitutional provision should not be construed so as to defeat its evident purpose, but rather so as to give it effective operation to suppress the mischief at which it is aimed.” Her finding that the Office of the President is outside the ambit of the Disqualification Clause is an obvious violation of the interpretative guidelines she had embraced just 60 paragraphs earlier. It would therefore appear that Judge Wallace wants this to be the critical issue on appeal, but that she prefers that determination be made by a higher court.

As noted above, this case is already on the calendar of the Colorado Supreme Court and all indications are that it will be quickly decided. That court, however, is unlikely to have the final word in this matter as all parties seem eager to have it decided by SCOTUS.  It is highly likely that an appeal to SCOTUS could be made in early 2024. Having appointed three of SCOTUS’s nine Justices, Trump may feel confident that he has a good chance that the high court will render a decision in his favor.  Despite the political bias apparent in a number of SCOTUS’s recent decisions, the petitioners may feel even more confident of success. This is because Trump’s recent public statements heralding the despotic ways in which he intends to run the government if re-elected seem to underscore the purpose and wisdom of applying the Disqualification Clause to the Office of the President.

Clearly this case involves a large number of factual and legal issues. Accordingly, you can rest assured that Trump’s attorneys will raise each and every one of them in the hope that those members of the Court who are inclined to help him might seize upon one or more of them to enable his re-election. Still, it seems likely that SCOTUS will hold that the Office of the President is subject to the Disqualification Clause. This is primarily because the notion that no person is above the law is a fundamental principle born out of the founding fathers’ insistence that our government be administered by someone who is not above the law. While Trump may enjoy goodwill among the Court’s conservative justices, those justices also understand that Trump poses a danger to the well-being of the nation and his party which has shown little ability, much less inclination, to prevent him from pursuing his authoritarian instincts.

SCOTUS conservative justices, however, do not have to decide this case in Trump’s favor to demonstrate their loyalty to him. They have a number of other ways in which they could be helpful to our 45th President without holding that the Office of the President is outside the ambit of the Disqualification Clause. To understand this, you need only recall how SCOTUS found ways to delay the public disclosure of Trump’s tax returns for over two years and until well past the 2020 elections. SCOTUS could similarly slow down its processing of this case so that no decision would be rendered until after Inauguration day in January, 2025. While this might seem like a long delay, SCOTUS took much longer to decide California v. Texas, the Court’s most recent decision upholding the Constitutionality of the Affordable Care Act.  The Court’s decision in that case was drawn out over a period of 17 months, assuring that the resolution of such a politically-sensitive case would not become known until well after the 2020 elections.

Such delay tactics in this case might make it possible for Trump to be re-elected and stay in office long enough to pardon himself (or arrange for his hand-picked successor to do so) for his various infractions of U.S. law which are currently being prosecuted by Special Counsel Jack Smith. This would appear to be the most promising (if not the only possible) way for him to escape the seemingly inevitable outcome of those two actions. Of course, if Chief Justice  Roberts is really serious about restoring SCOTUS’s public approval rating (which has fallen from 60% to 40% since 2000) he might be reluctant to slow-walk a case of such obvious importance and urgency.

Another option might be for SCOTUS to simply decline to hear the case. This would leave the decision of the Colorado Supreme Court in place, a decision which would only affect Trump’s ballot position in the State of Colorado. SCOTUS might justify such such a decision by stating that it wanted other courts to weigh in on the scope and applicability of the Disqualification Clause before it considered those issues. This too could adversely affect SCOTUS’s sagging approval ratings, making it a less than attractive course of action for the high court.

While it’s difficult to predict how SCOTUS will handle this case, it may soon become Trump’s most pressing litigation problem as it could rob hyim of his best way to avoid having to spend the remainder of his golden years in a federal penitentiary.