As most of the country gathers with family and friends to celebrate the holidays, the Supreme Court faces momentous decisions in two cases involving former President Donald Trump. On Wednesday, Trump’s legal team filed a response to a petition from special counsel Jack Smith, who has asked the Justices to expedite consideration of Trump’s argument that he is absolutely immune to the charges pending against him in federal court in the District of Columbia for his role in attempting to overturn the 2020 election. Trump’s lawyers contend that the complexity and novelty of the issues in the immunity case suggest that the Court should deny Smith’s request, lest it issue a hasty and ill-considered ruling.
That contention is at odds with what we can expect Trump’s lawyers to say in the papers they have promised to file soon seeking immediate review of the Colorado Supreme Court ruling that Trump is ineligible for the Presidency under Section 3 of the Fourteenth Amendment because, “having previously taken an oath . . . to support the Constitution of the United States, [he] engaged in insurrection or rebellion against the same . . . .” If novelty is the basis for the Supreme Court to hesitate in the immunity case, then it has even greater reason to take its time with the Colorado case than with Smith’s petition. After all, the Court can consult a body of case law—involving former Presidents Richard Nixon, Bill Clinton, and even Trump himself—concerning the scope of presidential immunity. By contrast, the full Supreme Court has never construed Section 3 of the Fourteenth Amendment.
Inconsistency aside, the Court should grant expedited review in both cases. With presidential primaries beginning next month, time is of the essence. If the Court grants review, the Justices should rule against Trump in both cases. Whether they have the courage to do so remains to be seen.
Presidential Immunity
As I wrote on my blog last week, Trump’s claims for immunity are novel because they are terribly weak. For example, he contends that conviction by the Senate following impeachment by the House is a prerequisite to a criminal trial for a former President; but he relies on a tendentious reading of the text of an impeachment clause that applies to all federal officers and that has never been understood to carry that implication.
Meanwhile, Trump’s response to Smith’s petition is highly problematic for a different reason. In addition to offering reasons why the Supreme Court should await a ruling from the federal appeals court before addressing the merits, the Trump legal team’s response sets out a number of arguments that all rest on the assumption that Trump’s efforts to overturn the 2020 election were “official acts.” Perhaps in recognition of the oddity of this characterization, they rely on language in the Nixon case (linked above) that extended presidential immunity to civil liability for all actions within the “outer perimeter of [the] line of duty.”
Yet the “outer perimeter” language from the civil case against Nixon does not support similarly broad immunity to criminal liability. A President who took a bribe in exchange for vetoing a bill would be acting well within the outer perimeter of his official responsibility—as vetoing proposed legislation is among the President’s express constitutional powers—but would nonetheless be subject to impeachment, removal, and subsequent prosecution and conviction for accepting that bribe, all in virtue of the express text of the very impeachment clause on which Trump relies for one of his immunity claims. Thus, “outer perimeter” should not be the standard for gauging a former President’s immunity, if any, to criminal charges.
Meanwhile, even if a former President did have absolute immunity to prosecution based on acts that were within the outer perimeter of his official responsibilities, that still should not benefit Trump. The very notion of an outer perimeter of such responsibilities implies that there are some things that fall outside the outer perimeter. If an attempt to subvert democracy does not fall outside the boundary, then nothing does. Trump is really arguing that a President cannot be held criminally accountable for anything he does while President.
Section 3 of the Fourteenth Amendment
So much for Trump’s immunity claims. What about Section 3 of the Fourteenth Amendment? I noted above that the Supreme Court has never construed this provision that was adopted in the wake of the Civil War to prevent Confederate traitors from attaining the reins of government. However, there was an 1869 decision by Chief Justice Salmon Chase in Griffin’s Case, holding that Section 3 is not self-executing—i.e., that it can only be used to disqualify someone pursuant to a federal statute enacted by Congress. Under this view, unless and until Congress passes such a statute, Section 3 is a dead letter. One of the dissenters in the Colorado Supreme Court, Justice Carlos Samour Jr., relied on Griffin’s Case. Does it carry the day for Trump?
Hardly. For one thing, a decision by a single Supreme Court Justice does not bear nearly the same weight as a precedent of the full Court. For another, Chase’s view contradicts Section 3’s very text, the last sentence of which provides that “Congress may by a vote of two-thirds of each House, remove [the] disability” of insurrectionists to hold federal office. If it takes action by a super-majority of Congress to enable an insurrectionist to hold office, then the default constitutional setting prior to Congressional action is ineligibility. Meanwhile, as Professors William Baude and Michael Stokes Paulsen have documented in a widely cited forthcoming article in the University of Pennsylvania Law Review, there are other oddities of Griffin’s Case that make it a particularly poor authority on the meaning of Section 3.
Trump’s team will lodge other objections. They will say that Section 3 does not apply to the presidency—a view that the Colorado Supreme Court rightly derided as contrary to the ordinary meaning of the text. It is also absurd to suppose that the Reconstruction Congress would have been worried about former Confederates serving as tax collectors but not as President. And indeed, we do not need to speculate. No other legal historian has made as extensive a study of Section 3 as Professor Mark Graber, who recently noted that “many participants in framing, ratifying and implementation debates over constitutional disqualification . . . explicitly” made the point that Section 3 covered the presidency.
Another objection we might hear from Trump or his allies is that Section 3 of the Fourteenth Amendment does not apply outside the context of the Civil War. But that’s plainly not true. The rest of the Fourteenth Amendment has ongoing force and operation. The text of Section 3 in no way signals that it has an expiration date. And while there are undoubtedly difficult questions that could arise about just what kinds of disloyal acts constitute “insurrection or rebellion,” as the Colorado Supreme Court stated, Trump’s case is in the heartland, not the periphery: “any definition of ‘insurrection’ for purposes of Section Three would encompass a concerted and public use of force or threat of force by a group of people to hinder or prevent the U.S. government from taking the actions necessary to accomplish a peaceful transfer of power in this country.”
Expect a kitchen sink full of additional contentions by Trump’s legal team. They will complain that the Colorado courts denied him due process, even though the presiding judge oversaw a five-day trial at which Trump was given multiple opportunities to present evidence and contest the evidence that was offered against him.
They will say that enforcement of Section 3 of the Fourteenth Amendment presents a non-justiciable political question—even though states routinely enforce other qualification requirements for ballot access. For example, if a 30-year-old sought to run for President, nearly everyone would acknowledge that it would be better for her name not to appear on the ballot than for voters to elect her, only to see her disqualified later.
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To say that the Colorado Supreme Court decision is persuasive is not to say that the U.S. Supreme Court will let it stand. Nor is it certain that the Court will hear Smith’s petition to reject Trump’s immunity claims on an expedited basis.
The reason is not simply political. Indeed, one imagines that Trump’s appointees—Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—would be especially uncomfortable about being seen as doing a favor for the man who put them where they are. Nonetheless, and setting politics aside, the conventional wisdom already says that the Supreme Court will reverse the Colorado Supreme Court based on the idea that the voters—not the courts—should decide presidential (and other) elections.
There is, admittedly, a seemingly democratic appeal to the let-the-voters-decide impulse. As applied here, however, that appeal is highly misleading for two reasons.
First, voters decide elections within a legal framework. If the arguments Trump offers for immunity to criminal prosecution and eligibility for office under Section 3 of the Fourteenth Amendment are unpersuasive—and they are unpersuasive—then the role of a court in a constitutional democracy is to reject those arguments.
Second, even if some of the issues were close, that would not be a reason to resolve them in Trump’s favor on a trust-the-voters rationale. The problem is not that the voters cannot be trusted. The problem is that the argument to trust the voters is being made on behalf of a man who has shown that he has no respect for the will of the People as expressed through elections—a man who poses an existential threat to popular government. Insofar as democratic values should be invoked as a tiebreaker, they count against, rather than in favor of Trump. The Constitution is not a suicide pact.