Betrayal

                                                      Source: The New Yorker

The Colorado Supreme Court voted 4-3 Tuesday to bar former President Donald Trump from running again for President in the state’s Republican primary March 5.  The court based its decision on the ban on insurrectionists in Section 3 of the 14th Amendment of the US Constitution. One purpose of the 14th was to keep former Confederates from taking over Congress after the Civil War. The Southern Democratic Senators had been powerful and skillful before the South seceded.

Section 3 is worth quoting:

“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 section disqualifies from any office, federal or state, someone who resorted to insurrection despite a Constitutional oath. From time to time, Congress has exempted politicians from the Section’s disqualification. Late in Reconstruction, in 1872, it exempted most Confederates except for Congressmen, military officers, and important bureaucrats. In 1898, it exempted them, too. But there is no chance that Congress will exempt Trump in 2024. The section requires two-thirds approval of both houses, and the Democrats, who comprise nearly half of the House of Representatives, and half of the Senate, will not blithely sweep the thorns out of Trump’s way, heel spurs or not.

On CNN, Ty Cobb, a Trump attorney who later broke with him, argued that Section 3 did not apply to the President or Vice President because it did not specify them as federal officers. Cobb contended that one does not vote for an officer, for example, a Secretary of State. He identified three cases in which Supreme Court justices, including John Roberts, did not identify the President or Vice President as officers. He predicted a 9-0 ruling by the US Supreme Court rejecting the Colorado ruling.

Section 3 does seem to distinguish between an officer, civil or military, and a Congressman, state legislator, or Presidential elector, all of whom are elected. The Denver district court had accepted that Section 3 deliberately refused to characterize the President as an officer. This conclusion was based partly on the fact that an early draft of the section did specify the President, but this specification was deleted.  

Caveat City

The Colorado Supreme Court countered that as a matter of common sense, the President was a federal officer. Congress surely deleted the reference to the Presidency because it was so obviously an office.    

One might add that a historical motivation for the 14th Amendment was to inhibit Confederate influence in Congress. Logically, that inhibition should extend to the White House.    

Another issue is federalism. A state cannot impose its own interpretation of the Constitution. That question was resolved in the ratification debate of the early 1790s, when the Anti-Federalists argued that a state should have the right to read the Constitution as it wished. They lost the fight handily.  Today the US Supreme Court will have to impose a one-size-fits-all solution on all states. 

Senator Thom Tillis of North Carolina introduced a bill to block other states from keeping Trump off the ballot. This may be constitutional. I quote Section 4 of Article 1 of the Constitution:

"The Times, Places, and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators." 

Thus Congress can impose national restrictions to avoid state-by-state chaos. For example, it sets one Election Day for all Congressional races. Perhaps another example is the need to avoid insurrection limits on national candidates that vary from state to state.

In effect, we need a federal answer to the question of whether Trump supervised an insurrection. My own sense is that he did not. He supervised a rebellion. An insurrection is an armed struggle against the government; a rebellion is an armed struggle to overthrow it. As I see it, Trump is a rebel, a traitor.

But he still deserves due process. Trump isn’t much, but he is an American. Quoting from Section 1 of the 14^th Amendment:

“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Professional reputation amounts to property, and the Colorado Supreme Court wants to reduce Trump’s without giving him so much as the right to subpoena to defend himself. Here, too, the US Supreme Court must fashion one size to fit all.

On the other hand, the Colorado Supreme Court argued that the district court had provided due process.  There was a lot of time for prehearing motions, and the trial itself lasted for five days.  

A practical solution may be to delay Colorado’s ban on primary campaigning until after the end of Trump’s federal trial for the events of January 6, 2021. Trump is not charged with insurrection. But he is charged with conspiring to violate the rights of citizens, a charge that affords him the chance to rebut the accusation of insurrection. And to appeal a conviction for conspiracy.

As a practical matter, the courts won’t resolve all of this before March 5.  So Trump will be on the Colorado GOP ballot. He may win, if he ducks debates. A lot of good that a primary win will do him in the state that Biden won in 2020, 55.4% to Trump’s 41.9%.

The most practical impact of the Colorado court ban is to inspire fund-raising for Trump.  Even so, the ban is a good sign.  It shows that someone takes the 14th Amendment seriously, particularly its ban on power-grabbing by rebels.  And if a national consensus emerges that Trump supervised an insurrection or rebellion, he could be prevented from running for President altogether, if the Supreme Court will show some guts. The Court probably won't.

Speaking of guts, the Republican contenders for the White House have consulted their fund-raising crystal balls and decided that they can’t afford to exclude an insurrectionist from the Oval Office. It’s The People’s decision! But the Constitution makes clear that we are not to trouble The People with a rebel. We are not to reward rebellion with a third shot at the Presidency, if only because Article 2 characterizes treason "or other high crimes and misdemeanors" as impeachable offenses that upon conviction require removal from office. If the serious candidates – Nikki Haley, Chris Christie, and Ron DeSantis – cannot stand up to a rebel on home ground, how will they fare against Vladimir Putin? – Leon Taylor, Baltimore, tayloralmaty@gmail.com

 

Notes

For helpful comments, I thank but do not implicate Annabel Benson and Mark Kennet.

 

References

CNN. (130) Former Trump WH lawyer on why Trump will see Colorado ruling as a win - YouTube December 20 2023.

Epps, Garrett. The 14^th Amendment and the fight for equal rights in Post-Civil War America.  Henry Holt. 2013.

Foner, Eric. The second founding: How the Civil Waer and Reconstruction remade the Constitution.  W. W. Norton. 2020.

Alexander Hamilton, John Jay, and James Madison. The Federalist papers.

Library of Congress. Fourteenth Amendment Section 3 | Constitution Annotated | Congress.gov | Library of Congress