On Tuesday evening, the Supreme Court of Colorado ruled that President Donald J. Trump had to be removed from the state ballot, for both the primaries and the general election. They cited the Fourteenth Amendment, Section Three of the Constitution of the United States, which reads as follows:
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 case made by the 4-3 majority in favor of barring President Trump from the ballot is simple: They say that Trump tried to conduct an insurrection in their judgment, and thus can be barred from the ballot by their say-so. “Congress does not need to pass implementing legislation for Section Three’s disqualification provision to attach,” says the Court, and “Section Three is, in that sense, self-executing.” In other words, so long as Section Three says that insurrectionists are disqualified from office, that means that Congress need not sound off on just what insurrectionists are. State courts can do it.
What’s more, the Court says that the Constitution authorizes states to determine the “constitutional qualifications of presidential candidates” because, otherwise, states would be unable to “exclude a twenty-eight-year-old, a non-resident of the United States, or even a foreign national from the presidential primary ballot in Colorado.”
The Court says it is qualified to determine who is guilty of “insurrection” under the Fourteenth Amendment without any criminal case or impeachment case. The Court continues, saying, “that the events of January 6 constituted an insurrection and that President Trump engaged in that insurrection.” The Court claims, “President Trump’s direct and express efforts, over several months, exhorting his supporters to march to the Capitol to prevent what he falsely characterized as an alleged fraud on the people of this country were indisputably overt and voluntary. Moreover, the evidence amply showed that President Trump undertook all these actions to aid and further a common unlawful purpose that he himself conceived and set in motion: prevent Congress from certifying the 2020 presidential election and stop the peaceful transfer of power.”
This reading is, to put it mildly, strained.
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Section Three was designed to prohibit those who had served in the Confederacy from holding public office in the United States. The Confederacy, as we know, was an armed rebellion against the United States which ended in the deaths of some 600,000 Americans on both sides.
It was unclear when the Fourteenth Amendment was passed whether it was designed to apply to any future rebellion or insurrection, or whether it was supposed to apply to presidential candidates or those seeking to qualify as such, or exactly how it would be effectuated — by states, by Congress, or by some other party.
Just two months ago, Kurt Lash, author of “The Fourteenth Amendment” and professor of law at Richmond School of Law published an essay about Section Three, writing, “The omission of express language on these issues is significant because prior publicly announced drafts did expressly apply to present and future rebellions, did expressly name the office of the President of the United States, and did expressly bar certain persons from either holding or qualifying for office.” What does this mean? It means that at the very least, the amendment didn’t mean to clearly bar presidential candidates in future elections who took part in future “insurrections.”
Most importantly, the amendment is totally unclear on exactly how it is supposed to be effectuated. Representative Thaddeus Stevens, one of the most radical Republicans of the time, said that the text would “not execute itself” — that Congress would have to pass laws making clear who was barred from office.
Historically, Congress was generally the enforcement mechanism for this provision. In 1872, for example, Congress passed the Amnesty Act, which did away with penalties on former Confederates due to the Fourteenth Amendment. Congress itself passed a law in 1994 that made it a crime to “assist or engage in any rebellion or insurrection against the authority of the United States,” so presumably, a conviction for such a crime would automatically disqualify a candidate from office under Section Three.
Even if the amendment were self-effectuating — which it likely is not, given this would create a massive incentive for states to randomly disqualify candidates they don’t like under its auspices — it would still require the state to prove Trump engaged in insurrection. As Chief Justice Brian Boatright says, “Age, time previously served as president, and place of birth all parallel core qualification issues under Colorado’s election code. Conversely, all these questions pale in comparison to the complexity of an action to disqualify a candidate for engaging in insurrection.” Barring Trump from the ballot without an actual trial for guilt or innocence — or even an enactment from Congress — seems to violate basic due process principles, as Justice Carlos Samour points out in dissent: “based on its interpretation of Section Three, our court sanctions these makeshift proceedings employed by the district court below — which lacked basic discovery, the ability to subpoena documents and compel witnesses, workable timeframes to adequately investigate and develop defenses, and the opportunity for a fair trial—to adjudicate a federal constitutional claim (a complicated one at that) masquerading as a run-of-the-mill state Election Code claim.”
This case is wrongly decided. The good news is that its effect is stayed until January 4, the day before ballot eligibility must be set; if Trump appeals, which he has already pledged to do, the stay remains in effect indefinitely.
But that’s not the point.
The point is that the use of lawfare against Donald J. Trump is absolutely unprecedented. It radically undermines electoral integrity, creating an ad hoc way for political opponents within each state to bar candidates they don’t like through reinterpretation of the Constitution.
And, of course, this Colorado State Supreme Court ruling is merely the latest iteration of lawfare against President Trump. It’s certainly true that Trump opened himself to this legal hellstorm with his activities leading up to and on January 6 and his handling of classified material after his presidency. He had to know there was a giant target on his back, and as always, he did what he wanted.
But that doesn’t mean he isn’t being targeted by a variety of perverse methods — methods that threaten the future peace of the republic in serious ways.
There are four outstanding criminal cases against Trump, three of which are rooted in misinterpretation of statute, and the fourth of which concerns mishandling of classified documents — a matter for which Trump’s former rival, Hillary Clinton, was let off the hook. Furthermore, the prosecutor in Trump’s January 6 criminal prosecution, Jack Smith, is openly attempting to cram through that criminal trial before the election, specifically in order to damage Trump’s chances in the election.
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As Andy McCarthy writes, “The prosecutor’s proposed schedule is driven by the political calendar, not law-enforcement concerns. … The Biden Justice Department took nearly three years to charge Trump, even though the facts by then were well-established; the indictment was strategically timed so a trial could take place during the presidential campaign. Not only did Smith push to force Trump to trial in just a few months after Smith’s own investigators had taken years; the prosecutor indicted in Washington, D.C., only after locking Trump into yet another complex criminal trial in another district a thousand miles away (south Florida).”
What does all this mean?
It means that 2024 is going to be the most insane and ugly presidential election in American history. And that’s saying a lot, since 1968 and 2020 are both years that existed. Already, partisan use of the judicial process to stop Trump has created a narrative for Trump that even should he lose, he will have been cheated — and he won’t be entirely wrong. In fact, if he is barred from ballots and his trial expedited to affect the election, he’ll be right.
Meanwhile, because the supposedly apolitical judicial branch has now signed into this fight on behalf of Joe Biden, Democrats are likely to think that Trump is not just morally but legally barred from office. Under what circumstances, precisely, would Democrats accept the result of a Trump election?
The weaponization of the legal system creates an all-consuming fire, burning everything in its path. There is simply no 2024 result likely to result in anything but complete — and perhaps violent — chaos at this point.