A good part of the problem with that Colorado Supreme Court holding that Section 3 of the 14th Amendment to the U.S. Constitution bars Donald Trump from running in that state’s presidential primary election over Jan. 6 is that several other state’s high courts have already concluded that it didn’t. And therein lies an important tale.
The right of voters to decide who will make binding decisions for them is as fundamental in a democracy as you can get. So, if the leading presidential contender can be summarily barred from appealing to voters in the absence of clear and conclusive analysis, that is as big a deal as we can think of.
Section 3 of the 14th Amendment provides:
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….
So, as pertinent here, it would appear that those covered are only those who “having previously taken an oath… as an officer of the United States…to support the Constitution of the United States, shall have engaged insurrection or rebellion against the [Constitution]… or given aid or comfort to the enemies [of the Constitution] ….”
But consider the observations of former U.S. Attorney General and U.S. District Judge Michael B. Mukasey in the Wall Street Journal. He reasons that while the issues of whether Jan. 6 was an “insurrection or rebellion” and if Mr. Trump “engaged in it” are the subject of much debate, the more basic questions are whether the presidency is an “office…under the United States” and was the presidential oath Mr. Trump swore on Jan. 20, 2016 to support the Constitution taken “as an officer of the United States?”
Judge Mukasey explains in almost Talmudic style: if the language disqualifying a rebel from holding “any office …under the United States” is broad enough to cover the president it is certainly broad enough to cover senators and representatives. Yet there are separate references to those specific offices as well.
He also notes that in other constitutional provisions the use of the term “officer of the United States” shows that it refers to appointed officials, not to elected ones. He cites an 1888 Supreme Court ruling that “unless a person in the service of the government …holds his place by virtue of an appointment…he is not, strictly speaking, an officer of the United States. Chief Justice John Roberts also noted more recently in a 2010 case, “the people do not vote for the ’Officers of the United States.’”
Judge Mukasey also points out that Article VI of the Constitution provides that senators, representatives, “and all executive and judicial Officers…of the United States” take an oath to support the Constitution. Yet the presidential oath is separately provided for at the end of Article II, Section 1 which would be superfluous if the presidential oath were required by the general language of Article VI and taken as “an officer of the United States.
Thus, again, Judge Mukasey provides another plausible reason for why the so-called insurrection clause would not apply to Donald Trump at all events.
The foregoing is not meant as a refutation of the legal reasoning of the Colorado Supreme Court. It is intended only to suggest that there are compelling arguments to be made for the Trump position, and where interference with a fundamental right is being threatened as here, only the clearest and unambiguous of bases will do.
