Donald Trump’s legal worries are growing. His election campaign is already littered with court dates from several parallel criminal proceedings. Now he is also troubled by the question of whether he can even be on the ballot.
The American presidential election is still almost a year away. But the debate is already raging over whether a paragraph in the US Constitution could exclude Republican frontrunner Donald Trump from the elections.
On Tuesday evening, the Supreme Court in Colorado made a ruling that provided new fuel for controversy. According to the judges, the former US president disqualified himself for the office of president with his behavior in connection with the storming of the Capitol on January 6, 2021. According to the court’s decision, the name “Donald Trump” should not appear on the ballot papers for the Republican primaries. Trump’s spokesman Steven Cheung criticized the verdict as “deeply undemocratic” and announced that he would immediately appeal.
The debate has been simmering in the USA since the summer about whether a single constitutional paragraph could exclude the Republican from the elections. The impetus for this was an article published in August by two prominent conservative lawyers in the US magazine “The Atlantic”. In it, retired federal judge Michael Luttig and constitutional lawyer Laurence Tribe come to the conclusion after a year-long investigation that Section 3 of the 14th Amendment prevents the ex-president from participating in the elections. They argue that Trump is therefore ineligible for the office of president because, despite his oath of office, he “took part in an insurrection” when the US Capitol was stormed on January 6, 2021.
Since then, election officials across the country have been debating how to handle this thorny legal issue in an already heated election campaign. Legally there are many question marks. If the conservative Supreme Court now intervenes, further developments will be in its hands. But that’s not the only reason many Trump critics are urging caution.
Dispute over the 14th Amendment and its application to Donald Trump
The history of the constitutional amendment in question – which is also known as the exclusion clause – goes back to the late 19th century. After the end of the American Civil War, Section 3 of the 14th Amendment was ratified in 1868 to bar Southern states that continued to send people to Congress who had previously held positions in the opposing Confederacy from holding office. The text of the section states that any American official who has taken an oath to uphold the U.S. Constitution is barred from holding future office if he or she has “participated in insurrection or rebellion” or provided “aid or assistance” to insurgents has achieved”.
And this is exactly where the legal disputes begin. Some legal experts believe that the so-called prohibition of insurrection remains as valid today as it was at the time of ratification – similar to many other constitutional articles that arose from certain historical circumstances. Noah Bookbinder, president of the liberal NGO Citizens for Responsibility and Ethics in Washington, explains that the “established qualification” in Section 3 “is in many ways no different from the qualification of being 35 years old and an American citizen “to become president”.
Critics of applying the controversial constitutional amendment, however, argue that the section only applies to the period of the Civil War and is therefore outdated. In addition, the state election authorities do not have the authority to exclude candidates before an election, and it has not yet been proven in court that Trump incited an “insurrection.”
The legal questions include what counts as “participation in an insurrection,” who has the authority to challenge Trump’s eligibility and who can possibly enforce a disqualification. “Section 3 of the 14th Amendment is old – it hasn’t really been put to the test in modern times,” Jessica Levinson, a law professor who specializes in election law, recently wrote in the New York Times.
Several states are dealing with tricky legal issues
In Trump’s case, it initially looked like the matter would be decided on a state-by-state basis. In early September, a group of six voters in Colorado filed a lawsuit seeking to keep the Republican off the ballot on the basis of the 14th Amendment. The plaintiffs are Republican and unaffiliated voters who argue that Trump should be immediately disqualified for his role in the storming of the Capitol.
Similar efforts are underway in other states. In August, the liberal group Free Speech for People wrote to the secretaries of state in Florida, New Hampshire, New Mexico, Ohio and Wisconsin, urging them not to place Trump on the ballot based on the 14th Amendment. In the traditionally first primary state of New Hampshire, Secretary of State David Scanlan then asked the Attorney General to examine its possible applicability to the upcoming presidential election.
But many view the advances of liberal and conservative anti-Trumpers rather skeptically. In Arizona, Secretary of State Adrian Fontes already announced that he had no authority to exclude the ex-president from the elections, but added that the question of Trump’s eligibility had not been resolved. His counterpart Brad Raffensperger argued similarly in an op-ed in the Wall Street Journal, emphasizing that voters alone “deserve the right to decide on elections.” In Florida, a federal judge has already dismissed a corresponding lawsuit. However, without clarifying the question of the applicability of the 14th Amendment, but rather because the plaintiffs did not have standing to file the lawsuit. In Michigan and Minnesota, plaintiffs also failed in their actions against Trump – but appeals are ongoing.
Delicate political debate in the USA
From a historical perspective, the 14th Amendment is also tricky territory. In New Mexico last year, Otero County Commissioner Couy Griffin became the first incumbent to be disqualified in 150 years. But although he was not convicted of a more serious crime – the charge was trespassing – he was actually present when the Capitol was stormed. This distinguishes his disqualification from attempts to oust Republican Reps. Marjorie Taylor Greene and Madison Cawthorn from office on grounds of the 14th Amendment, each of which failed to withstand scrutiny.
What is certain is that Trump is more deeply involved in the events of January 6th than Greene or Cawthorn. And the application of the said constitutional amendment is not linked to a conviction in one of the four trials currently underway against him. But given that the ex-president is currently facing 91 criminal charges and “participation in insurrection” is not one of them, it may be difficult to charge him with this specific offense.
With the ruling in Colorado, the debate has taken on a new dimension. One that will soon occupy the highest court in the United States: the Supreme Court. This had shifted significantly to the right due to the judges appointed by Trump and now has a conservative majority of 6:3. No surprise then that Trump’s spokesman Cheung emphasized that they have full confidence that the Supreme Court will quickly rule in his favor and finally put an end to “these un-American lawsuits.” “I think it could be 9-0 for Trump on the Supreme Court,” Ty Cobb, a former White House counsel, said in an interview CNN.
In the already heated election campaign, political observers warn against underestimating the importance of public perception. It is clear to most experts that January 6th amounted to an insurrection. But a Monmouth University poll last year showed that only 52 percent of Americans shared that view. It could therefore be a risk to exclude Trump from the election for his role in the storming of the Capitol, which half of Americans are not even convinced was an insurrection at all.
Or, as the liberal US professor Noah Feldman puts it in his guest article for “Bloomberg”: “Donald Trump is obviously unfit to be president. But it’s up to the voters to prevent him. Magic words from the past won’t come to us rescue.”
Note: This article has been updated and republished due to current events.
Sources: “NY Times“, “Washington Post“, “CNN“, “Atlantic“, “WSJ“, “Indictment text Colorado“, “Monmouth University Survey“, “Bloomberg“
