It’s not exactly ironic, but close enough for our purposes, that Donald Trump — a strict anti-constitutionalist — could be brought down by the nation’s founding document.
And it’s not ironic at all — I could have predicted it — that Colorado could be right in the middle of that battle, along with competing lawyers carrying with them their well-worn copies of the Constitution.
You see, actual constitutional scholars, from left and right, have made a strong case that the 14th Amendment — one of my favorite amendments, by the way — precludes anyone from holding office who has sworn to uphold the Constitution and, in the words of two legal eminences, “thereafter rebels against that sacred charter, either through overt insurrection or by giving aid or comfort to the Constitution’s enemies.”
It’s all right there in Section 3 , known as the Disqualification Clause, of the 1868 amendment. The 14th Amendment not only famously guaranteed the civil rights of former slaves, but it also laid down rules against those who had engaged in sedition. After the Civil War, that was obviously a hot topic.
And suddenly, after the January 6 insurrection and the re-emergence of Trump, it’s a hot topic again. A New Mexico district court judge disqualified a county commissioner last year from holding public office for engaging in the January 6 insurrection. That was the first time the 14th Amendment had been used that way in a hundred years.
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The commissioner had breached the Capitol, though he didn’t engage in any violence. Trump didn’t engage in physical violence either. But did he illegally incite it?
That’s for a judge to judge. And maybe many judges. But it’s a much easier call to say Trump is the president who was more interested in breaking the Constitution than defending it.
As you might also have heard, Trump is facing four indictments, two of which clearly hold that Trump was involved in an attempt to overturn the 2020 election, although both stopped short of charging him with sedition.
But back in the day, Speaker-for-now Kevin McCarthy, then GOP House minority leader, said that Trump “bears responsibility” for the “mob rioters.” He even said privately that he would ask Trump to resign. Of course, McCarthy would backtrack almost immediately because he’s, well, Kevin McCarthy.
And on the day Mitch McConnell voted not to convict Trump in his second impeachment trial, the then-Senate majority leader still said Trump was “practically and morally responsible for provoking the events of the day” and that Trump, if he couldn’t legally hold on to office, would “torch” American institutions on the way out.
And, beyond the insurrection itself, there’s little doubt that Trump gave aid and comfort to those who stormed the Capitol while attempting to stop the peaceful transfer of power from Trump to Biden. Even now, he has promised to pardon many of the offenders if he is — shudder — elected again.
So now just such a case is being brought in Colorado that could conceivably keep Trump off the ballot in the state, which would be, of course, basically unprecedented. But, hey, anyone who follows the Supreme Court these days knows that precedents ain’t what they used to be.
OK, the case may be a long shot, but attorney Mario Nicolais, a freelance Sun opinion writer who is among those arguing the case, says that people “are underestimating the chance of success by a significant degree.”
And yet, if the case — brought by the Citizens for Responsibility and Ethics (CREW), a Washington, D.C., ethics watchdog — ever made it to the Trump-delivered Supreme Court, it’s hard to imagine it would agree to disqualify Trump over a mere constitutional, uh, squabble. I’m not a lawyer, but I’d venture that this Supreme Court has gotten the Constitution wrong on any number of issues.
Predictably, Trump said his accusers were members of “the Radical Left, Communists, Marxists, and Fascists, to again steal an Election…” Of course, he did.
Still, the two scholars who made the case in the Atlantic that Trump can be barred from office — liberal Harvard Law School professor Lawrence Tribe and conservative former U.S. Court of Appeals Judge J. Michael Luttig — are more than well respected. They wrote, they said, in support of a coming law review article by two Federalist Society-aligned constitutional scholars. There’s a drumbeat — more scholars, from left and right, are joining in — and soon the drums will be heard in court.
There are cases filed in a few states — several of them swing states — but Colorado’s may be the most comprehensive to date. It’s a long read, but worth the time. And if you can’t make it all the way through, you should at least read the introduction.
The civil case — at first set to be tried in state court, then moved to federal court Friday, though further motions could move it back — cites scholars who say Section 3 of the 14th Amendment “functions as a sort of constitutional immune system” meant “to keep those who have fundamentally betrayed the constitutional order from keeping or resuming power.”
The lawsuit goes on to say that Trump has failed that test by betraying his oath to “preserve, protect and defend” the Constitution.
He doesn’t have to be convicted of anything to be barred. A judge can determine whether Trump is constitutionally disqualified, and Secretary of State Jenna Griswold, a Democrat, would have to follow.
A ruling could be appealed to the state Supreme Court. And then to the U.S. Supreme Court. Time is of the essence since the ballot for a March presidential primary would have to be certified by January.
Meanwhile, former Secretary of State Scott Gessler has filed to move the case to federal court. But attorney Nicolais says he doubts that will go anywhere.
Not everyone, of course, thinks such a case is a good idea, including some who hope Trump never goes anywhere near the White House again. David Frum, a former Republican firmly in the Never Trump camp, says he worries that those Trumpists who already suffer under the delusion that the 2020 election was rigged would now contend that the government is actively and openly rigging it this time. As Frum says, it’s “precisely because very large numbers of your fellow citizens regard (Trump’s) behavior as acceptable (that) we’re in trouble.”
There are certainly nightmare scenarios that would make January 6 look, in fact, like a tourist stroll through the Capitol. But Nicolais has a ready answer — that you can’t apply constitutional law, or any other for that matter, according to the whims of those who might object to it.
“Should we ignore the Second Amendment? How about the First?” Nicolais says. “How about search and seizure?”
Those are all fair points. And then there’s this: Whatever else this case does, it would shine a light on Trump’s contempt for democracy. You remember when Trump said that so-called election fraud “allows for the termination of all rules, regulations, and articles, even those found in the Constitution …”
Fortunately, the Constitution endured and the road to authoritarianism was stalled for at least a while. This presidential campaign — and this lawsuit — can help answer the question of whether that constitutional ideal still holds.
Mike Littwin has been a columnist for too many years to count. He has covered Dr. J, four presidential inaugurations, six national conventions and countless brain-numbing speeches in the New Hampshire and Iowa snow. Sign up for Mike’s newsletter.
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