Look Away: How the Supreme Court Could Set Aside Trump’s Disqualification for Insurrection under the Fourteenth Amendment

Posted in: Constitutional Law

It’s 2028. Donald J. Trump, nearing the end of his second term as President of the United States, announces he will seek re-election to a third term. Dismissing complaints that this would violate the 22nd Amendment (“No person shall be elected to the office of the President more than twice”), Trump claims that the Amendment was only intended to apply to consecutive terms. He quotes from the U.S. Supreme Court’s landmark decision in Trump v. Anderson (2024): “In our democracy, we must trust the people, not unelected judges, to choose our leaders.”

Does that sound crazy? Like a bad dream? Some would say that the text of the 22nd Amendment is so clear, the duty of judges to uphold the Constitution is so fundamental, that the above scenario is just unimaginable. Surely, Trump would be kicked off the ballot as ineligible, or votes for him would simply not count. Right?

Don’t be so sure.

If the U.S. Supreme Court mishandles the pending case of Trump v. Anderson, you might find that some portions of your Constitution no longer apply—at least when they conflict with the will of our would-be “Dictator for a Day.” As I discussed in “Rebel Yell: Why a Civil War Amendment Has Donald Trump Fighting to Keep His Name on the Presidential Ballot,” the Colorado Supreme Court articulated compelling reasons why Trump is ineligible for the presidency under Section 3 of the 14th Amendment, due to his role in the January 6, 2021 attack on the U.S. Capitol. This was followed by a similar decision by the Maine Secretary of State.

Given its usual 6-3 conservative majority, the U.S. Supreme Court is widely expected to overturn those decisions. It may even be tempted to do so in the name of popular democracy—leaving a difficult and contentious legal issue to be settled at the ballot box.

“Let the people decide.” The appeal of such rhetoric is obvious. The dangers emerge only later.

If a majority of the Court is determined to roll back the decisions in Colorado and Maine, can they find a way to do it more surgically, without blowing up constitutional guardrails that might come in handy later? This article will examine the Court’s options in Anderson—particularly options that would put Trump back on the ballot—and attempt to assess which course the majority will likely choose.

Is There a Problem, Officer?

One potential off-ramp would be to agree with Donald Trump’s attorneys that their client “is not even subject to section 3, as the President is not an ‘officer of the United States’ under the Constitution.” The Court could rule that the presidency is not specifically listed in Sec. 3 of the 14th Amendment as an “office” to which the ineligibility applies, and that the President does not fall under the general category of a “civil officer of the United States” for the purpose of the Amendment.

It is true that there is some inconsistency about the use of the word “Officer” in the Constitution, and in some contexts it does not apply to the President. For example, the Appointments Clause (Art. II, Sec. 2, cl. 2) discusses the President’s power to appoint “Officers of the United States”, which obviously does not apply to the President or Vice President. Similarly, Art. II, Sec. 3 states that the President “shall Commission all the Officers of the United States.” Of course, the President does not give himself (or the Vice-President) a commission. Finally, the Impeachment Clause (Art. II, Sec. 4) refers to “[t]he President, Vice President and all civil Officers of the United States”. If the President and Vice President are themselves “civil Officers” (so the argument goes), then the text should say “all other Civil Officers of the United States.”

This line of thinking no doubt appeals to a certain kind of mind. On the surface, the argument might appear to be densely textual, mechanical in operation, and devoid of any political agenda—in short, the perfect escape hatch for a conservative Court.

Still, this argument defies great swaths of Constitutional text, not to mention legislative history and common sense. The Constitution (including amendments) directly refers to the presidency or vice-presidency as an “office” no fewer than 27 times (including six times in the 22nd Amendment, quoted above). Just in Art. II, Sec. 1 alone, we read that the President “holds his office,” that a person must be “eligible to the Office of President,” that “In Case of the Removal of the President from Office… the same shall devolve on the Vice President,” and that the President swears an oath to “faithfully execute the Office of President of the United States.” How is it possible to read these provisions and somehow conclude that the presidency is not an “office,” and the President is not a “civil officer of the United States”?

Many of the Constitution’s generic references to “office” and “officers” have clearly been understood to apply to the President and Vice President. As Vikram David Amar has pointed out in these pages, the Incompatibility Clause (Art. I, Sec. 6) states that “no Person holding any Office under the United States, shall be a Member of either House [of Congress] during his Continuance in Office.” This is one of the distinguishing features of American government—the strict separation of legislative and executive personnel. In contrast to the standard form of parliamentary government pioneered by Britain, American legislators must first resign their seats before serving in the executive branch—including in the presidency and vice presidency. But if the presidency is not actually an “Office under the United States”, then Barack Obama and John F. Kennedy did not have to resign from the Senate, but could have kept their seats despite moving to the Oval Office. Senators Kamala Harris, Joe Biden, Al Gore, Dan Quayle, Walter Mondale, Hubert Humphrey, Lyndon Johnson, Richard Nixon, Alben Barkley, Harry Truman, and four of their predecessors were also apparently mistaken to resign their seats before assuming the vice presidency. It sounds absurd. But if the Court buys this argument, what would stop future presidents and vice presidents from simultaneously occupying seats in Congress and collecting congressional salaries—contrary to 235 years of unbroken practice?

It is also reasonably clear that the drafters of the 14th Amendment thought Sec. 3 applied to the President. For example, in a notable exchange during the debate over the Amendment, Senator Reverdy Johnson asked why the presidency and vice presidency were not specifically listed in Sec. 3. Senator Lot Morrill responded, “Let me call the Senator’s attention to the words ‘or hold any office, civil or military, under the United States.’” Johnson acknowledged the point and withdrew his objection.

Even without that contemporary evidence, the “officer” argument fails a simple test of common sense. Given that Sec. 3 of the 14th Amendment was intended to ensure that the Constitution is protected from those who would undermine it, why would it prohibit insurrectionists from holding any public office, except the most powerful one? Why would it have been unacceptable for rebel leaders like Jefferson Davis or Robert E. Lee to serve in Congress, as presidential electors, in the Cabinet, in state offices, or even as a town dogcatcher, but just fine to let them occupy the Oval Office?

Before we dismiss the “officer” argument completely, however, we should remember that it persuaded Colorado District Court Judge Sarah Wallace, who first heard the case, even though she was fully convinced that Trump engaged in insurrection. It will find some takers on the U.S. Supreme Court as well. One person’s pedantic sophistry is another person’s fidelity to the text. However, I doubt that a majority of the Justices will want to build their decision on such a sketchy foundation.

An Oath, Registered in Heaven

Trump’s attorneys have a fallback argument: that Sec. 3 only bars insurrectionists who have previously sworn an oath “to support the Constitution of the United States.” Donald Trump, they argue, never took such an oath. Instead, they point out, upon becoming President he swore an oath to “preserve, protect and defend the Constitution of the United States” (Art. II, Sec. 1). You see, he never said he would “support” it, only that he would “preserve, protect, and defend” it. I kid you not. That’s the argument.

If the lawyering thing doesn’t work out, Trump’s attorneys should be able to get jobs in a delicatessen. You can’t slice baloney any thinner than that.

Rocky Mountain Sigh

A better critique of the Colorado Supreme Court’s decision was suggested by its own Chief Justice, Brian Boatright. His measured dissent argued that Colorado’s statute governing election eligibility challenges was not designed for a question of this magnitude, and its expedited procedures did not allow for adequate examination of the evidence. “Although a claim that a candidate is not thirty-five years old may be easier to resolve than a claim that a candidate is not a natural born citizen, these presidential qualifications are characteristically objective, discernible facts,” Boatright argued. “Age, time previously served as president, and place of birth all parallel core qualification issues under Colorado’s election code. Conversely, all these questions pale in comparison to the complexity of an action to disqualify a candidate for engaging in insurrection.”

Chief Justice Boatright was on to something important here. Could a five-day hearing in a state district court in Denver be sufficient to fully develop the facts about Trump’s responsibility for January 6? It was not a simple matter of presenting a birth certificate or a few other pieces of documentary evidence.

Even an observer sympathetic to the Colorado court’s majority opinion must confess some unease on this point. How could that obscure hearing in Judge Wallace’s court—which received only modest attention in the national press at the time—somehow provide a definitive answer to the question of whether Donald Trump engaged in insurrection? Despite Trump’s second impeachment and Senate trial, the House January 6 Select Committee’s months of testimony, and the Special Counsel’s pending criminal charges, Trump has so far evaded his day of reckoning. But at least those attempts have been made on a national stage, through federal institutions, in the full glare of public attention. As George Conway points out, “Every day in this country, people go to prison—for years—with a lot less process than Trump got” in Colorado. Still, there is something strange about deciding an issue of such national importance in the obscure courtroom of a single state district court judge, in a proceeding that was over before most people knew it was happening.

Unfortunately for Donald Trump, Chief Justice Boatright based his dissenting argument on Colorado law, a subject on which the Colorado Supreme Court has the final word.

Even if we try to reframe Boatright’s argument as a federal constitutional issue (such as a violation of Donald Trump’s right to “due process”—for which he can thank the 14th Amendment), that won’t necessarily get the Supreme Court out of its jam. It could set minimum standards for due process and send the case back to Colorado for re-hearing. But that would not settle the question on a national basis. Multiple states would still have to grind through their own proceedings on Trump’s eligibility, possibly stretching the debate to the eve of the election or beyond.

It’s Not Insurrection If You Don’t Wear the T-Shirt

If the Supreme Court really wants to take a walk on the wild side, it could examine Trump’s attorneys’ contention that “President Trump did not “engage in insurrection” on January 6, 2023. In their telling, “President Trump’s words that day called for peaceful and patriotic protest and respect for law and order” — and his exhortation to “fight like hell” was purely metaphorical. That’s a rather selective reading of the material, of course. What about testimony that Trump encouraged the attack on Congress with “coded language”? His attorneys characterize this as “claims that President Trump has powers of telepathy.” What about Trump’s passivity while the Capitol was ransacked by his supporters? “A mere failure to act would not constitute ‘engagement’ in insurrection,” the attorneys assure us. Besides, they say, it was all constitutionally protected free speech.

The Court will not want to touch any of this hot mess if they can avoid it. The Justices may not be fully comfortable relying on the factual record compiled by the Colorado District Court, but at least that court held hearings and ingested the voluminous evidence previously compiled by Congress. The weight of that evidence cannot be easily dismissed, and certainly not by cherry-picking a few quotes. If the Justices cannot resolve Anderson without closely examining the facts of what Donald Trump did on January 6, that’s a sign he’s well on his way to losing the case.

Methods of Execution

Another off-ramp for the Court would be to question whether Sec. 3 of the 14th Amendment can really be applied without further implementing legislation from Congress. While the Court has generally held the 14th Amendment to be “self-executing”, Sec. 3 is tricky. Was the Amendment really intended to let any state court make the call on whether an individual engaged in insurrection against the U.S. Constitution? Shouldn’t some federal institution make that decision? Doesn’t Congress have to pass legislation to lay out the disqualification process under its Sec. 5 enforcement powers?

Congress has, in fact, defined insurrection as a criminal offense in 18 U.S.C. § 2383, and even included a disqualification clause: “Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.” The Court could conclude that that is the exclusive remedy currently available. In other words: If you want to disqualify Trump, take him into federal court. Give him due process and prove him guilty of beyond a reasonable doubt under 18 U.S.C. § 2383. Otherwise, you’re out of luck. (Note that Special Counsel Jack Smith has charged Trump with four criminal counts in the January 6 case, including conspiracy to defraud the United States and conspiracy to obstruct an official proceeding. But Trump has not been charged with insurrection under 18 U.S.C. § 2383.)

There are a few problems with this approach. First, 18 U.S.C. § 2383 doesn’t really track the language of the 14th Amendment—for example, there is no reference to a prior oath. There’s a simple reason for this. As former Judge J. Michael Luttig points out in his amicus brief in Anderson, 18 U.S.C. § 2383 originated in the Second Confiscation Act of 1862, four years before Congress passed the 14th Amendment and six years before it was ratified. While 18 U.S.C. § 2383 has been revised over time, there is no reason to believe that Congress ever intended it as the exclusive mechanism to enforce Sec. 3.

Second, the former Confederate rebels were not handled this way. If they served in the Confederate army or government, or any of the rebellious state governments during the Civil War, they were considered to be insurrectionists as a class—without any criminal trial. They were disqualified from office under Sec. 3 of the 14th Amendment through a variety of legal mechanisms, not all of which were provided by statue.

However, participation in the Civil War on the Confederate side was a fairly simple question of objective fact. Putting hundreds of thousands of people on trial—particularly ordinary soldiers — was never contemplated. But everyone understood that fighting for the South meant rebellion against the authority of the U.S. Constitution. Participation in the January 6 attack was different—some participants may have openly intended to defy the Constitution; others had no such knowing purpose. The perpetrators of January 6 numbered in the thousands, but only a fraction of them previously took an oath to support the Constitution. So, an individualized determination of responsibility is possible—and is actually taking place. This is evidenced by the pending criminal charges against Trump and others, and the many people who have already been tried and sentenced for January 6 offenses.

Some Light Treason

A more flexible version of this approach would not require a specific conviction under 18 U.S.C. § 2383 to invoke Section 3. The Court could simply say that to ensure due process, there must be a conviction by a federal court for a federal criminal offense related to an insurrection or rebellion. The Court could preserve the possibility of mass disqualification where a general civil war or rebellion makes individual criminal trials impracticable. Though far from perfect, this would not be the worst solution to the dilemma faced by the Justices.

It is not a particularly “originalist” or “textualist” solution, however, and thus may have limited appeal to Court’s conservatives. It would require the Court to get a little creative in fashioning a workable rule. To be meaningful in the short term, it would need to be coupled with more judicial diligence in beating back Trump’s efforts to delay his trial on the January 6 charges. But a few liberal Justices might be persuaded to join a majority opinion that would set the Colorado ruling aside, if it also put Trump’s future disqualification into the hands of a federal jury. Such a compromise might be the least bad of the available alternatives that would leave Trump on the ballot (for now).

The Red Badge of Courage

While wrestling with these difficult issues, the Justices will be tempted by the argument that removing Trump from the ballot would be “anti-democratic” and that they should just “let the people decide.” After all, if the people of the United States believe that Donald Trump engaged in insurrection, they surely won’t trust him again with the job to “take Care that the Laws be faithfully executed.” Right?

The track record of failed insurrectionists in electoral politics should give us pause. Figures as diverse as Louis-Napoléon Bonaparte in France, Adolf Hitler in Germany, and Hugo Chavez in Venezuela each launched a failed coup d’état, endured a short stint in jail, and returned to win power through elections. Once in charge, they made themselves dictators—not for one day, but for life. In each case, they could have been stopped through a sterner application of the rule of law. But it was more convenient to let the people decide.

The Justices of the Supreme Court face a similar choice in Anderson. It will require some courage, but they can preserve, protect, and defend the Constitution by enforcing the 14th Amendment. Or they can take an easier way out—and hope that the Constitution will survive another roll of the electoral dice.

But what if Donald Trump loses the popular vote for the third election in a row, only to be declared the winner for a second time by the baroque machinery of the Electoral College? In that case, forget about vox populi, vox dei. We won’t hear any more about the will of the people. Instead, we will be told (rightly) that we have no choice but to swallow our medicine and follow the Constitution.

That’s all the more reason to follow it now.

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