Three judges in three states — Minnesota, Michigan and Colorado — have dashed the aspirations of those seeking to prevent Donald Trump from running for president next year based on his role in the January 6, 2021, assault on Capitol Hill and a provision in the 14th Amendment of the U.S. Constitution.
The most recent case was in Colorado, where Judge Sarah Wallace on Friday evening refused to remove the former president’s name from the Republican primary ballots in the state. The verdict comes just two months before the primaries will begin in Iowa.
The U.S. Constitution does not prohibit a person under investigation for a federal crime from being president; nor does it prohibit them from running for president, even if, as in Trump’s case, they are facing 94 charges in four different cases: the former U.S. president will face trial for his alleged involvement in the attack on the Capitol, electoral subversion and his handling of classified papers. The Constitution does not even include a caveat to prevent a person in jail from being president.
But the 14th Amendment does provide an exception in Section Three, known as the “disqualification clause,” which says: “No person shall be […] president […] who, having previously taken an oath […] 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.” The amendment also states that Congress can lift the ban if it is supported by two-thirds of each House.
Approved in 1868, the most far-reaching effects of the 14th Amendment were to grant citizenship to every person “born or naturalized in the United States,” including those who had been enslaved, and to guarantee all citizens are treated equally before the law. Section Three was designed to prevent the Confederate rebels, defeated in the Civil War (1861-1865), from reoffending. It has been applied on very few occasions, only twice since 1919.
The Colorado judge said that she found that Trump did in fact “engage in insurrection” on Jan. 6., but argued that the 14th Amendment could not be applied to presidents. Indeed, the 102-page ruling, offered a searing condemnation of Trump, whom Wallace labeled as an insurrectionist who “actively primed the anger of his extremist supporters,” and “acted with the specific intent to incite political violence and direct it at the Capitol.”
Section Three refers to senators and members of Congress, but does not specifically refer to the office of president, argued Wallace. “After considering the arguments on both sides, the Court is persuaded that ‘officers of the United States,’ did not include the President of the United States,” she wrote.
The verdict on Friday was another blow in just over a week for supporters of a legal theory defended in a 126-page scientific article in an issue of the University of Pennsylvania Law Review. Titled The Sweep and Force of Section Three, the legal paper is authored by William Baude and Michael Stokes Paulsen, two renowned conservative academics, who argue that the disqualification clause is far from being a 19th-century anachronism. They believe there is no doubt that Trump’s actions — especially how he incited supporters and pressured his vice-president Mike Pence to disrupt the transfer of power — fit under the clause.
The Minnesota Supreme Court also dismissed efforts to end Trump’s presidential race, arguing that it was up to the political parties to decide who appears on the ballots. A few days later, a Michigan judge said it was up to Congress — not the court — to decide whether Section Three bars Trump from running for the White House.
Possibility of appeal
The Colorado plaintiffs will be able to appeal the decision to the state Supreme Court, as well as take the case to Washington, which has a conservative supermajority of six to three. Three of its members were appointed during Trump’s years in the White House (2017-2021).
The lawsuit in Colorado was filed by a Washington organization called Citizens for Responsibility and Ethics (CREW), which has legally challenged Trump in the past. In an interview with EL PAÍS last September, Donald Sherman, its vice president, stated: “There is overwhelming evidence that the clause can be triggered in this case. The concept is easy to understand, although the litigation is not going to be.” CREW set a precedent last year when they were able to use the clause to disqualify Cuoy Griffin, the founder of the Cowboys for Trump group, from holding public office in New Mexico.
“We applaud today’s ruling in Colorado, which is another nail in the coffin of the un-American ballot challenges,” Trump spokesman Steven Cheung said in a statement on Friday. “The American voter has a constitutional right to vote for the candidate of their choosing, with president Donald J. Trump leading by massive numbers.”
All polls show Trump as the clear favorite to win the Republican Party’s presidential nomination for the 2024 election.
Sign up for our weekly newsletter to get more English-language news coverage from EL PAÍS USA Edition