Is Trump Disqualified from the Presidency?

Analyzing Section of the 14th Amendment

The possibility exists that the Supreme Court will simply refuse to rule based on the political question doctrine…

By Anil Madan

The Supreme Court of Colorado and the Secretary of State of Maine, have ruled that Donald Trump is not eligible to appear as a candidate for president on the primary or general election ballots in those states by virtue of the prohibition contained in the 14th Amendment to the US Constitution.

Trump supporters participate in a rally Jan. 6, 2021, in Washington. Pic AP

The US Supreme Court has agreed to hear an appeal from the Colorado ruling.  A Superior Court judge in Maine has stayed the removal of Trump from the ballot pending the US Supreme Court’s decision in the Colorado case. Trump’s right to appear on the presidential ballot has been challenged in other states too. The rulings have ranged from deferring action, to declaring that this is a political question that cannot (or should not) be answered by the courts but is a matter reserved for Congress, to declaring that election officials do not have to the power to rule on the issue, to saying that Trump cannot be disqualified from a political party’s primary ballot but leaving open the question whether he is eligible to appear on the general election ballot. A ruling in the Colorado case could potentially resolve all outstanding challenges to Trump’s eligibility to be a presidential candidate.

There is a theoretical possibility that the Supreme Court could rule that Trump may appear on the primary and general election ballots but that he would still have to qualify to assume the role of President.

The seemingly simple and straightforward language of the 14th Amendment is anything but. Analysis of the issue requires us to wade through a thicket of objections, questions, protests, arguments, and interpretations. Let us take a walk through that constitutionally jumbled jungle.

Section 3 of the 14th Amendment to the United States Constitution disqualifies insurrectionists and those who give aid or comfort to enemies of the United States, from serving in certain offices. The text of Section 3 is straightforward:

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.

Political Question Doctrine

It should be obvious that courts are constituted to decide legal matters. The corollary of this is that courts are not empowered to answer political questions. The general rule is that federal courts should not rule in cases if the issue involved is constitutionally the sole responsibility of either the executive or legislative branch. The idea is that the courts should not intrude on the province of the other branches of the government or where there is a lack of judicially discoverable and manageable standards for resolving a question presented.

Interestingly, the 14th Amendment itself contains a purely political question. Section 5 states that Congress may by a super majority (a vote of two-thirds of each House) remove the disability of holding office. Notice that the language does not provide any standards for Congress to follow. Thus, this is a purely political decision.

In contrast, deciding whether a person is disqualified under the 14th Amendment from holding office involves resolution of factual questions (such as did the person take an oath to support the Constitution?) and legal questions (such as did the person engage in an insurrection?).

It can be readily seen that the courts have no role in ruling on the wisdom (or lack thereof) of a political decision by Congress under section 5, but they can indeed rule on the factual and legal issues presented under section 3.

Is the President an Officer Under the United States?

The language of section 3 does not explicitly mention the President. If the President is covered, it is because he would have taken an oath “as an officer of the United States.” The argument is raised that the President is not an officer of the United States.

To me, this is a bogus argument. The Constitution repeatedly refers to the Office of President of the United States. One such reference is found in reference to the Vice President and the Senate:

The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States.

Or we can look at the impeachment judgment clause to which I have referred in a previous article:

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

Even more explicit is Article II, Section 1 of the Constitution;

The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years…”

An interesting note in passing is that the Constitution states: “The President shall be Commander in Chief of the Army and Navy of the United States ….” If we think of the Commander in Chief as being the Chief Commanding Officer, then the notion that section 3 does not include the President would allow a person to be President, but not serve as Commanding Officer since section 3 disqualifies insurrectionists from “hold[ing] any office, civil or military, under the United States.”

The Oath taken by the President

The Constitution states that the President shall take a specified oath:

Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:— “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”

Section 3 of the Constitution refers to an oath “to support the Constitution of the United States.”

Some have argued that this oath is textually different from the oath that the President takes.

The argument is a stretch. Article VI of the Constitution states:

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

The phrase “All executive … officers” surely includes the President who is described as the person in whom the “executive Power” is vested.

Surely, if the Constitution requires that the executive take an oath to “support” the Constitution and prescribes the text of his oath, that oath must be taken as an oath to “support” the Constitution.

Do Trump’s actions fall within the language of Section 3?

Section 3 bars from office any person who, having taken an oath as described above, “shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”

The first question is to what do the words “the same” and “thereof” refer? Some scholars read Section 3 as referring to an insurrection or rebellion against the Constitution and to enemies of the Constitution. To me, this is a strained reading. The clause is better understood as referring to an insurrection or rebellion against the United States and to enemies of the United States. The definition of “insurrection” and “rebellion” support such a construction.

It is a generally accepted view that the Constitution’s text should be construed to reflect the meaning of the words at the time the language was adopted. The post-Civil War 14th Amendment should therefore be understood as it was in the mid to late 19th Century.

The Colorado Supreme Court cited the definition of “insurrection” in Webster’s Dictionary from 1860:

A rising against civil or political authority; the open and active opposition of a number of persons to the execution of law in a city or state. It is equivalent to SEDITION, except that sedition expresses a less extensive rising of citizens. It differs from REBELLION, for the latter expresses a revolt, or an attempt to overthrow the government, to establish a different one, or to place the country under another jurisdiction.

A contemporary law dictionary published in 1856, by John Bouvier, adapted to the federal and state constitutions, defined “insurrection” as “a rebellion of citizens or subjects of a country against its government.”

There is no question that Donald Trump exhorted the crowd assembled on January 6 to march to the Capitol in opposition to the execution of the law requiring Vice President Pence to count the electoral college votes and Congress to certify the election. Trump said to the crowd:

“We have come to demand that Congress do the right thing and only count the electors who have been lawfully slated, lawfully slated.” He also said that Pence “is going to have to come through for us.” There was more, for example, Trump’s statement to the crowd that “we’re going to walk down, and I’ll be there with you, we’re going to walk down… and we’re going to cheer on our brave senators and congressmen and women.”

Some have argued in Trump’s defense that he did not incite violence because he said: “I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.”

This is beside the point. As I have pointed out in previous writings, it is very difficult to make a case for criminal incitement to violence against Trump. In deciding whether speech is protected under the First Amendment, Supreme Court precedent requires that the speech have incited lawless action because (1) the speech explicitly or implicitly encouraged the use of violence or lawless action; (2) the speaker intended that the speech would result in the use of violence or lawless action; and (3) the imminent use of violence or lawless action was the likely result of the speech.

Clearly, whether or not Trump’s speech meets those criteria, at a minimum, his speech called for lawless action.

But note that Section 3 of the 14th Amendment does not require incitement of violence. It merely requires that the person who is to be disqualified from office have “engaged” in insurrection or have given aid or comfort to the enemies of the United States (or of the Constitution if you will).

There is ample evidence that Trump was directly involved in promoting the submission of fake electors and fake electoral college votes, that he pressed Vice President Pence to abjure his constitutional duty to certify the electoral college votes. Leaving aside the question of Trump’s responsibility for the violence that ensued, there is no question that the action of the crowd marching on the Capitol was “an open and active opposition” to the execution of the election law and Pence’s constitutional duty. This fits the definition of insurrection. And there is no question that Trump engaged in that insurrection.

There is also no question that Trump’s promise to march with the crowd was giving them aid or comfort in their enterprise to demand that the election laws not be executed. So were his comments on the afternoon of January 6 while the crowd was still at the Capitol. Among his remarks, Trump said: “I know your pain, I know your hurt. We had an election that was stolen from us… We have to have peace. So, go home. We love you, you’re very special…. I know how you feel. But go home and go home in peace.” If that is not giving comfort to the rioters, what is? But that does not answer the question whether the rioters may be classified as enemies of the Unites States or of the Constitution.

Some have argued that the assault on the Capitol was never an attempt to overthrow the government. This is beside the point. No such requirement is found in Section 3. Nor is it necessary that Trump have succeeded in preventing the peaceful transfer of power.

Trump’s comments since January 6 and his promise to pardon those convicted for their acts on that day may also be considered giving aid or comfort to the insurrectionists. But this may be a perilous legal path. A pardon is a presidential prerogative, so promising a pardon may be perfectly legal so long as no bribe is involved. And, again, are they enemies of the United States or of the Constitution?

Does disqualification violate Trump’s right to due process?

Arguments have been made that disqualifying Trump from running for president is a denial of due process.

This argument is without merit for several reasons. First, as can be seen in Section 1 of the 14th Amendment, the prohibition is that no state shall “deprive any person of life, liberty, or property, without due process of law.” There is not deprivation of life, liberty, or property here. No person has a right to run for office. If there is such a privilege or right, it is only applicable to persons qualified to be president.

On a more substantive note, there cannot be a deprivation of due process if a disqualification is mandated by the Constitution. It would be a contradiction in terms to say that the Constitution’s due process clause prevents the application of the Constitution’s disqualification clause.

In any event, this does not mean that Trump is not entitled to a fair trial. Long before the Constitution was adopted, our system of laws required fair trials and the application of rules of evidence to safeguard the rights of litigants, by virtue of the Magna Carta and common law precedent. Those did not disappear when the Constitution was adopted.

Trump has not shown that using his own words against him is remotely a violation of fairness or due process. Nor could he. Any candidate is required to meet the threshold qualifications previously mentioned: natural born citizen, at least 35, and a resident for 14 years. A person not meeting any of those qualifications could no more claim a violation of due process than a person disqualified for insurrection.

Is disqualification of Trump anti-democratic?:

Trump’s supporters have taken to claiming that disqualifying him from being on the ballot is anti-democratic and a denial of the people’s right to choose their president.

My first reaction is to laugh. The audacity of this argument is palpable. The essential charge here is that Trump tried to avoid the outcome of a democratic election that his own head of cybersecurity called “the most secure in American history.” Falling back on the anti-democracy argument is reminiscent of the man who kills his parents and then pleads for mercy on the grounds that he is an orphan.

And the argument is silly. The people have no right to choose a person who is not a natural born citizen, or underage, or who does not meet the residency requirement. None of those disqualifications is considered anti-democratic. Why should the inability to choose an insurrectionist be any different?

Conclusion:

On its face, Section 3 of the 14th Amendment bars Trump from the Office of President of the United States, or indeed, from any office under the United States.

But, as this review shows, the possibility exists that the Supreme Court will simply refuse to rule based on the political question doctrine or use any one of the excuses proffered to give Donald Trump a pass.

Cheerz…
Bwana

Mauritius Times ePaper Friday 19 January 2024