What to know about Trump and the 14th Amendment
A Colorado court is set to hear a challenge to Trump's ballot eligibility under Section 3 of the 14th Amendment
It’s a theory that’s been floating around since shortly after the January 6th, 2021 riot at the Capitol: Is Donald Trump even eligible to run for president under the disqualification clause of the 14th Amendment?
And while it it may have found harbor in the hopes of the nation’s political left, the idea that Trump might be ineligible to appear on ballots indeed took on new life after two members of the conservative Federalist Society, William Baude and Michael Stokes Paulsen, made the case for it in a law review article in August.
The 14th Amendment’s Section 3 bars anyone from holding federal office if, after previously taking an oath to support the Constitution, they engage in “insurrection or rebellion against the same.”
Baude and Paulsen argued that Section 3 is not limited to those who were members of the Confederacy during the Civil War and that the disqualification clause does not require an act of Congress to be enforced. In fact, the two argue that state officials who already judge the qualifications of a presidential candidate to appear on their ballots, such as meeting the Constitution’s minimum age requirement, should also consider this clause and bar Trump from eligibility.
The idea that Trump is ineligible under Section 3 of the 14th Amendment has prompted several lawsuits, including ones in Michigan, Minnesota, and Colorado.
Colorado’s case
The Supreme Court has already declined to hear one of these challenges brought by a little-known Republican Presidential candidate whose lawsuit was thrown out of court for a lack of standing.
But in Colorado, despite several attempts to dismiss the case by Trump’s attorneys, Judge Sarah Wallace in Denver County has allowed the case to proceed to a five-day trial that begins today (Monday).
The case was brought by Citizens for Responsibility and Ethics in Washington, which is representing six Republican and other unaffiliated voters.
Judge Wallace has set an agenda for the hearings that plans to examine several issues, including:
Whether the 14th Amendment’s Section 3 applies to presidents.
Some of the critics of Baude and Paulsen’s law review article have noted the language in Section 3 may not apply to the presidency. The language of the section reads 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.”
Trump’s attorneys have claimed that the language does not cover the president, and their argument has received support from former Attorney General Michael Mukasey, who wrote that the language does not apply to elected officials.
Part of the Colorado hearing will work to flush out this issue and will include the court looking at the history of Section 3 and its application.
The meaning of “engaged” and “insurrection” under Section 3.
While the group of voters points to Trump’s actions in spurring his supporters on January 6th to try and block the certification of the 2020 election and the peaceful transfer of power, there remains the question of whether Trump committed or engaged in an insurrection.
Remember, Trump has not been charged with inciting or taking part in an insurrection. His election interference case in Washington D.C. revolves around conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, and other crimes.
Even still, it’s debatable whether violating a criminal statute is required to trigger Section 3 or the 14th Amendment. After all, the Amendment itself is silent on how and when it’s to be applied.
Should someone be criminally convicted of insurrection to be ineligible under Section 3?
Is it for Congress to decide?
Can state courts or election officials simply declare that an individual has committed an insurrection and therefore is ineligible under the Amendment?
Clearly, there is much to interpret here, and the court will look to weigh some of these questions starting Monday.
Keep an eye on SCOTUS
While the Supreme Court declined to hear one of these lawsuits — though, it should be noted the appeal was over a lack of standing and not the case’s merits — it does seem likely that if these lawsuits continue to move forward, the Supreme Court will eventually step in to deliver its interpretation of Section 3 of the 14th Amendment and how it applies here.
Mark Remillard is an award-winning journalist based in New York City. His work has appeared extensively on ABC News, Yahoo! News, and local news stations across the U.S. and Canada. More info: https://linktr.ee/markjremillard