I’m on an e-mail list from Robert Reich, and I got an interesting message this evening that included:
On Friday, Denver District Judge Sarah B. Wallace ruled that Donald Trump “acted with the specific intent to disrupt the Electoral College certification of President Biden’s electoral victory through unlawful means; specifically, by using unlawful force and violence.”
She concluded with this finding of fact: “Trump incited an insurrection on January 6, 2021 and therefore ‘engaged’ in insurrection.”
Bingo.
It’s the first official legal finding that Trump participated in an insurrection.
That would normally disqualify Trump from holding any public office in the U.S. under Section 3 of the 14th Amendment; but Reich reports that Wallace performed some legal “somersaults” in order to interpret the amendment in such a way that Trump could still be on the ballot because the 14th says that it applies to those who took an oath to “support” the Constitution, but the oath that Trump took was to “preserve, protect and defend” the Constitution. (Yes, really.) But Reich also writes “… appellate courts do not defer to district court interpretations of law or the Constitution.”
This will certainly go all the way to SCOTUS. Stay tuned…
Fingers crossed.
Here’s a thought: Trump’s opposition – by which I mean the Republican party – could, if they really wanted to, use that as a pretext to simply not let him be their candidate. He’d be free to stand as an independent, possibly… but they could just say “nah, insurrectionists can’t stand”… and tie him up in legal arguments about until after the election. Sauce for the goose, and all that.
Of course, they probably won’t do that because Trump is very clearly all they have – Trump, as of today, has a realistic chance of winning the election, incredibly. Less incredibly, not a single actual politician on the Republican side has a hope of coming anywhere near winning if they were the candidate, and it’s only getting worse for them.
Pass the popcorn…
Well, from what I understand there are no previous court decisions relating to this clause of the 14th amendment, so the law is not settled in how it can be interpreted. Which allows for a wide range of possible interpretations. I’ll mention three, there are others.
First, the letter of the law. Wallace follows the letter of the law. The language of the presidential oath means Trump did not break his oath to support the constitution, because that oath does not include the word “support”. Pettifogging lawyers eat this shit up.
Second, the spirit of the law. Trump violated the spirit of the law by attempting to retain power. Disrupting the authorized process of selecting a new president in order to retain power was, even without the violence, an attempted self-coup. When you add the violence, any violence, it becomes an insurrection.
Third, the political reality of today. The republican party is no longer a party of ideas or policies, it is a party of of grievances. Denying Trump being on a ballot only grows those grievances, Trump is their crybaby-in-chief. I know a lot of republican elites would like to ditch Trump and return to claims that they are making the lives of the US citizens better by attacking trans people, immigrants, and foreigners living abroad, while secretly passing the laws which allow the rich to get richer. But the majority of the rank-and-file members of the republican party have adopted the republican talking points in the culture wars, amplified by Trump. The political reality is that if Trump is removed from ballots because of language in the 14th amendment which has never previously been enforced it will add to the grievances tremendously. The results would be unpredictable.
If Trump is removed from the ballot because of a 19th century law a number of possible things could happen. The Trumpista’s might form a new party, something the republicans want to avoid because they feel that will remove them from power. The Trumpista’s may look for evidence that democrats violated their oath of office and so should be banned from politics. I don’t know if such evidence exists, but careers can be ruined by charges submitted even if they are later thrown out due to lack of evidence. There are states with elected judiciary, this ruling would become a campaign question and in states where Trumpista’s have a majority any judge which agrees with the language of the 14th amendment would not be elected, while states were the Trumpista’s are not in the majority only judges who agree with the 14th amendment would be elected. Those differences will spill into other judicial decisions.
In short, using this archaic law to prevent Trump from even being on the ballot will cause a lot of unpredictable results. Neither the republican or democratic party want this to happen. Nor does any business, because it disrupts the status quo. Large corporations rely on consistency for their plans for profit. Social chaos disrupts the economy and profits.
So, my prediction is, when it gets to the supreme court, that Wallace’s interpretation of the oath of presidential office will be upheld. There will be some outrage from the democrats (and maybe some republicans), and some talk about needing to change the presidential oath. But I think that the general population was not expecting this previously un-enforced law to be enforced now, and will shrug their shoulders and say, “it was worth a shot.”
Finally, and maybe most importantly, the public generally understands defeats at the ballot box. That’s why the claims of election fraud were (are) so important. The managers of the insurrection were trying to break that belief, to get the public to distrust the results of counting ballots so the insurrectionists could claim legitimacy. The US public knows there are issues with voting, and discusses improvements, but at the end of the day they have an almost unshakeable belief that voting is more fair than any other method of selecting their representatives. Preventing people from being on the ballot in the first place, preventing the public from having the opportunity to reject them, will be seen as less fair. They will not approve of laws preventing people from being on the ballot at all. Even if it means people who previously tried to overthrow the government are on the ballot.
flex, yeah, I’m sure all of that is in play. We’ll see which of the several sides wins out.
One quibble: the 14th Amendment is part of the Constitution, not just any old law. Are you referring to some law I don’t know about that says what the presidential oath is?
Should Trump be disqualified? Obviously
Could Trump be disqualified? Again, obviously
Will Trump be disqualified? That remains to be seen, but it’s not looking good
Howdy Bill,
I’m just referring to the federal constitution. The oath taken by the president is found in the last paragraph of article II, section 1 of the US Constitution. It calls for the president to “preserve, protect, and defend the Constitution of the United States.”
The 14th Amendment says, in section 3, that “No person shall … hold any office, … who, having previously taken an oath … as an officer of the United States … to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same. … But Congress may by a vote of two-thirds of each house remove such disability.”
The ellipses are there for clarity. I do not feel that removing the sections which do not apply to the office of the president changes the meaning of the text. I left in the final sentence because that allows Trump another out, if both the House and Senate allow it.
It is also important to understand that while (as far as I can ascertain) the presidential oath is the only one specifically spelled out in the US Constitution, in Article VI, the second paragraph, calls out the following, and I quote the complete text, “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.”
Now it will be, and probably was and will be argued, that this article also covers the office of the president of the United States. After all, the president is an executive officer as defined by this article. But the fact that article II specifically identifies the text of the oath of office of the president of the United States can be seen as an explicit carve-out by the framers of the Constitution as an exception to article VI.
Wallace’s ruling really is a very clever one. It obviously avoids the spirit of the law, I think even Wallace would acknowledge that. But this technicality will be grudgingly accepted by the people making the claim, and avoids the appearance of unfairness which removing Trump from ballots would create.
So, how does any of this get fixed? Unfortunately, only through another amendment to the Constitution. Because it’s not that the president can break any law with impunity, but the framers of the original text or the 14th amendment didn’t foresee that a US president might be leading an insurrection. This doesn’t mean that other safeguards, other laws, regulations, and policies couldn’t be put in place to prevent a demagogue from trying an insurrection again, but to eliminate this particular loop-hole in the 14th amendment, there would need to be another amendment to the Constitution.
The other way to make it clear that insurrection bars an ex-president from future office would be for enough cases where this is tried that a USSC precedent is established saying that even if the presidential oath in article II doesn’t say the word “support” the 14th amendment still applies. I don’t think it’s a good idea to let this happen enough times for a precedent to be established.
Given the supreme court’s fondness for 16th century precedents, I favor breaking on the wheel and drawing and quartering.
If Trump does get removed from (some) ballots, it will only happen in the bluer states, and so will make little actual difference – but it would give the conspiracy-mongers a (quasi-)real hook to hang their horror stories on.
Ideally (in my little mind), Trump would stay on the ballot in all states – and get crushed decisively in popular voting and the Electoral College. In this sub-ideal world, I think we should not count on the 14th Amendment and do everything possible to bring out anti-Trump votes, especially in swing states. (However, 14th-A related campaigns may work as voter education.)
I agree with Pierce R. Butler as well. Definitely bring up the 14th Amendment for the purpose of voter education; but Trump losing decisively in both the popular vote and the electoral college would be much better theater (but runs the risk of not actually happening). In any event, I’ll bring my own popcorn because I might shove down a bunch of it. 😎