Opinion Donald Trump and the 14th Amendment
Colorado and Maine correctly concluded that former president Donald Trump is an insurrectionist who is barred from holding office by Section 3 of the 14th Amendment. But they incorrectly concluded that Mr. Trump should be excluded from the 2024 ballots.
Section 3 provides that an insurrectionist who previously took an oath of office may not “hold” office, but it does not bar candidates from being on ballots. It is one thing to keep off the presidential ballot someone whose ineligibility could not be waived (an underage or nonnatural born citizen candidate). But it is quite another to keep off the presidential ballot someone whose ineligibility could be removed. Section 3 provides a method for seating an oath-breaking insurrectionist, albeit only by “supermajorities” in the Senate and House.
If, and only if, Mr. Trump wins a majority of the electoral votes will the Supreme Court need to decide if there is sufficient evidence to prevent him from taking office. If the court does affirm the well-reasoned decisions from Colorado and Maine on the insurrection issue, Mr. Trump could take office if, and only if, he can convince two-thirds of the Senate and the House to remove his ineligibility. If he cannot do so, he cannot hold office. Voters have the right to understand this in advance so they can make reasoned decisions.
In any event, the best thing for the country, legally and politically, will be for Mr. Trump to be on the ballot — and for the American people to so soundly defeat him that even the malapportioned electoral college will not result in the election of this insurrectionist.
David S. Fishback, Olney
The writer is a retired career U.S. Justice Department attorney.
https://www.washingtonpost.com/opinions/2024/01/03/donald-trump-14th-amendment/
Print Edition: January 4, 2024
https://www.supremecourt.gov/DocketPDF/23/23-719/299107/20240129171610494_23-719_Amici%20Brief.pdf Judge Luttig's amicus brief in essence that once a court adjudicates that a presidential candidate is disqualified under the Section 3 of the 14th Amendment, that candidate cannot be on the ballot unless and until they secure the Section 3 waiver. His view is that the voters, before the election, need to know whether the candidate would be barred from taking office. Luttig challenges the Court to NOT kick the can down the road and hope for the best (i.e., that Trump would lose in the Electoral College, making it unnecessary to reach the disqualification issue). Luttig's point is that it would be even more destabilizing to wait until after Election Day. He may be right. But I doubt the Supreme Court has the courage to so rule.
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