Will the Courts Say Trump Can’t Be President Again? They Should.

In a number of states, activist groups have sued to keep Donald Trump off their ballots in the 2024 election for reason of Section 3 of the 14th Amendment, which bars from holding political or military office those who have sworn to uphold the Constitution but have then fomented insurrection .

Courts in a few states have so far sidestepped the issue or turned away the suits. A Florida judge ruled that the plaintiff lacked standing. The Minnesota supreme court left Mr. Trump on that state's ballot saying it might take up the case only should he be confirmed as the Republican candidate. A Michigan judge stated that because Mr. Trump had qualified under state law to be on the ballot, the court could not remove him. Lawfare, a non-profit, non-partisan publication that keeps score, says more than a dozen more challenges are pending.

This month, a Colorado court was the first to base its ruling on the merits of the case and on Trump's conduct on January 6, 2021. The 14th Amendment states that:

Anyone who "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" has taken the oath to uphold the Constitution but then "shall have engaged in insurrection or rebellion" cannot "hold any office, civil or military, under the United States, or under any State".

Denver District Court Judge Sarah Wallace concluded that…

"Trump acted with the specific intent to incite political violence and direct it at the Capitol with the purpose of disrupting the electoral certification…engaged in an insurrection on January 6, 2021 through incitement… cultivated a culture that embraced political violence through his consistent endorsement of the same.”

Michael Luttig, a former federal judge of the U.S. Court of Appeals for the 4th circuit whom the Republican Party holds in high regard, said of Wallace's finding that the former president had indeed incited insurrection, "You simply could not overstate the significance of this fundamental finding of constitutional fact and law".volte-face But in her opinion, Judge Wallace then reversed field, finding that the amendment does not pertain to Trump, citing "scant direct evidence regarding whether the Presidency is one of the positions subject to disqualification”. She was referring to the amendment's list of those who had taken the oath.

Plainly, with that list the amendment is at pains to be widely inclusive, but in September, Michael Mukasey, George W. Bush's last attorney general, wrote an op-ed in The Wall Street Journal aimed at giving Trump an escape route, arguing that the amendment did not apply to him because, when president, he was not "an officer of the United States". The Constitution repeatedly refers to the "office" of the president as does the oath, but for Mukasey the word is short one letter.

Mukasey combs through the Constitution to make the case that "in other constitutional provisions" the term officer "refers only to appointed officials, not to elected ones". Therefore Trump "didn't take and thus didn't violate an oath as an 'Officer of the United States'".

Judge Wallace doesn't focus on "office" and "officer" but doubts "whether the Presidency is one of the positions subject to disqualification". She then deep dives to find her own way to exempt Trump. Because…

"Section 3 specifies that the disqualifying oath is one to ‘support’ the Constitution whereas the presidential oath is to ‘preserve, protect and defend’ the Constitution, it appears to the court that for whatever reason the drafters of Section 3 did not intend to include a person who had only taken the presidential oath.” [emphasis added]

Lawrence Tribe, professor emeritus of Harvard Law School and a recognized constitutional authority, says,

"Because Donald Trump used the words 'preserve, protect and defend' and didn’t use the word 'support', we can treat him as having taken the oath with his finger crossed. What does it mean to preserve protect and defend if not to support it?"

Luttig "can't imagine the Supreme Court deciding this case on that frivolous argument." As Tribe says, "The judge herself says she admits this sounds preposterous – that's her word".atmosfear In the cases pending in other states, we can expect judges to latch onto Mukasey's and Wallace's evasions so as to wriggle free from being the ones to disqualify Trump.

In an America where a significant percentage have come to think, in keeping with Trump's increasingly threatening rhetoric, that violence is an acceptable means of achieving desired ends, it is understandable that judges are diffident about ending the anointed one's candidacy. Death threats against election workers, judges, prosecutors, lawyers, their wives, their children are intimidating in a nation that has lost its moral bearings. So the judiciary sets the Constitution aside in pusillanimous quibbles over an office holder not being an officer rather than following the intent of the amendment.

But at least Judge Wallace has laid down a decision that in part higher courts should have difficulty getting around. Professor Tribe ventures about each half of her decision:

"My suspicion is that having built a wall of fact and law so high that no appellate court could climb over it, a wall that established that Trump was guilty of engaging in disqualifying insurrection, she threw him a lifeline that was so thin, so threadbare, so likely to fall apart, that … no appellate court could uphold putting him on the ballot on that basis."

But Tribe added that when Trump seeks review at the Supreme Court, "there, all guesses are off."

If any case goes on appeal to the U.S. Supreme Court, we can expect them to duck. It is foregone (we will say) that the Court would not dare disqualify Trump, but we might at least be amused to watch the textualists squirm free of the unequivocal language of the 14th amendment. Per Mukasey, the occupant of the Oval Office was not an "officer"; everyone else was. Or an amendment passed immediately after the Civil War was only meant to keep southern insurrectionists out of government and should have no further application. Or that the Wallace interpretation has it right: Trump swore a different oath. Presidents defeated in an election who want to retain power are thus exempt and free to incite insurrection; all other malefactors do not have the privilege.

If Section 3 of the 14th does not apply to the incitement of insurrection that sent a mob of thousands to attack the Capitol, the seat of government, then that provision of the Constitution, like the ignored militia clause of the Second Amendment, has been made void. Another fragment of the Constitution's intended bedrock will have been been chipped away.

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