Dean Obeidallah
Most of the headlines this past week concerning former President Donald Trump’s legal woes have focused on developments in two of his four criminal cases. Last Monday, in the federal 2020 election subversion case, US District Judge Tanya Chutkan imposed a narrow gag order to restrict Trump from making public statements attacking potential witnesses, prosecutors and court personnel. (On Friday, the judge put a temporary hold on this gag order to give the defense and prosecution more time to brief her on the issue after Trump appealed the order.)
Later in the week, there were potentially significant developments in Trump’s criminal case in Fulton County, Georgia, where he’s charged with 13 felonies over alleged efforts to overturn the 2020 election in that state. Two of Trump’s co-defendants in that case – Sidney Powell and Kenneth Chesebro – pleaded guilty to various charges and pledged to testify for the prosecution in future cases, which could include Trump’s. (Trump has denied wrongdoing and pleaded not guilty to state and federal charges stemming from attempts to overturn the 2020 election.)
But the case that may pose the greatest threat to Trump’s candidacy in 2024 is not one of his criminal cases. Rather, it’s a lawsuit in Colorado that not only saw some bad news for Trump last week but also is scheduled to start trial this month. This case involves a lawsuit initiated by a liberal watchdog group on behalf of six Colorado voters to disqualify Trump from holding office by way of Section 3 of the 14th Amendment over his role in events leading to the January 6, 2021, attack on the US Capitol.
It seeks to block him from the 2024 primary ballot in Colorado over the amendment’s provision disqualifying from future office US officials who have taken an oath to uphold the Constitution if they have “engaged in insurrection” and/or “given aid or comfort” to insurrectionists. On Friday, Colorado District Judge Sarah Wallace rejected three arguments by Trump and the Colorado GOP to dismiss the case before the scheduled October 30 trial date. One of the most powerful points the judge made was rebuffing the argument that state officials have no discretion over who is placed on the ballot if a political party wants that person listed.
In her ruling, Wallace wrote, “If the Party, without any oversight, can choose its preferred candidate, then it could theoretically nominate anyone regardless of their age, citizenship, residency.” She added, “Such an interpretation is absurd; the Constitution and its requirements for eligibility are not suggestions, left to the political parties to determine at their sole discretion.” And Wallace – to the likely chagrin of Trump – cited in support of this point a 2012 opinion from Supreme Court Justice Neil Gorsuch, a Trump appointee, when he was a federal appellate judge. In that case, Gorsuch wrote that states do have the legal authority to “exclude from the ballot candidates who are constitutionally prohibited from assuming office.”
Wallace did not, however, conclude that “the Fourteenth Amendment can be used to exclude a presidential candidate from the primary ballot, or that the Secretary of State is empowered to evaluate such a question.” Those issues – and others – are to be decided in the upcoming trial. But this suit – if successful – could be more of a threat to Trump’s candidacy than his criminal cases. Why? Trump could be convicted in any of his criminal cases, yet there is no constitutional prohibition that bars him from running for president. In fact, Trump could be in prison and still run.
However, if Trump loses this case over the 14th Amendment – or any of the similar ones in states such as Michigan and Minnesota – his name would not appear on the ballot in those states since he would be deemed constitutionally disqualified to be a candidate for president. Trump still has a motion pending to throw out the Colorado lawsuit, and his campaign has criticized the Colorado judge’s rulings. “She is going against the clear weight of legal authority. We are confident the rule of law will prevail, and this decision will be reversed – whether at the Colorado Supreme Court, or at the US Supreme Court,” a Trump campaign spokesperson said. “To keep the leading candidate for President of the United States off the ballot is simply wrong and un-American.”
But regardless of the decision in Colorado, even legal scholars who have opined that Trump violated Section 3 of the 14th Amendment have acknowledged that ultimately this issue must go to the US Supreme Court for a final decision. And that is the way it should be given the importance of this issue. But the Colorado case could be the one that makes it to our nation’s highest court. To those who dismiss the prospect of Trump being disqualified from the ballot, check out the case of former New Mexico elected official Couy Griffin, who had been the head of a group called Cowboys for Trump.
A lawsuit was brought against Griffin alleging he violated Section 3 of the 14th Amendment over his actions in connection with the January 6 attack. After a trial was held, the judge concluded – based on expert testimony – that the January 6 event was an “insurrection” as contemplated by the 14th Amendment, which was ratified in 1868 after the Civil War. Section 3 of the 14th Amendment was intended to keep former Confederates from holding office after the war.
In 2022, Griffin was found guilty of a misdemeanor of trespassing on US Capitol grounds but was acquitted of a second misdemeanor charge of disorderly and disruptive conduct.
The judge deemed Griffin to have “engaged in” the insurrection by his conduct of being on the Capitol grounds. As the judge explained, “One need not personally commit acts of violence to ‘engag[e] in’ insurrection. … Engagement thus can include non-violent overt acts or words in furtherance of the insurrection.” Consequently, Griffin was removed from office as a commissioner in Otero County and barred from being on the ballot in the future in New Mexico. The September 2022 ruling marked the first time an elected official had been removed from office for participation or support of the Capitol riot. The state’s Supreme Court rejected Griffin’s final appeal to overturn the decision earlier this year.
To those who think it’s undemocratic to ban officials from the ballot if they are found to have violated the 14th Amendment, I have two responses. First, it’s far more undemocratic to “engage in” an insurrection designed to prevent the peaceful transfer of power. And second, we can’t ignore the conditions clearly imposed on candidates set forth in the US Constitution. At least, not if we want to remain a democratic republic.
CNN
