The Supreme Court should be able to quickly dispatch the Colorado Supreme Court’s ruling barring former President Donald Trump from its 2024 ballot.
There is only one way to bar Trump from running again, and that’s an impeachment conviction, followed by a vote in the Senate to make him ineligible for public office.
On Wednesday, Trump’s attorneys filed a petition at the U.S. Supreme Court, calling on the justices to overrule Colorado’s decision.
The Colorado Supreme Court barred Trump from the ballot in a 4-3 ruling last month, citing the 14th Amendment.
Section 3 of the 14th Amendment provides that anyone who has sworn an oath to the Constitution and then “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof” is ineligible for office.
However, the provision specifically lists several offices one could not hold — senator, member of Congress, military position, state legislator or other civil offices — but it does not list the presidency.
The Colorado Supreme Court decided that the drafters of the amendment meant the presidency also.
The four judges, all Democrat appointees, concluded that Trump’s alleged role in the Jan. 6, 2021, Capitol incursion amounted to participation in an insurrection, and therefore, under the 14th Amendment, he is ineligible.
It is a violation of federal law to engage in a rebellion or insurrection, with a maximum penalty of 10 years in prison. Trump supporters have noted that he has not been charged with, much less convicted of, any such crime.
In fact, the Department of Justice has charged no Jan. 6 defendant with insurrection, evidently because the facts don’t match the crime.
Trump’s attorneys argued in their Supreme Court brief that Trump did not engage in an insurrection.
The 14th Amendment was ratified in the immediate aftermath of the Civil War and addressed those who had taken up arms against the government.
Trump did not, and those who engaged in political violence on Jan. 6 did not do so at his behest, the brief said.
“President Trump never told his supporters to enter the Capitol, either in his speech at the Ellipse or in any of his statements or communications before or during the events at the Capitol,” Trump’s court filing said.
“To the contrary, his only explicit instructions called for protesting “peacefully and patriotically,” to “support our Capitol Police and Law Enforcement,” to “[s]tay peaceful,” and to “remain peaceful.”
Trump’s legal team also delved into the specific language of Section 3 of the 14th Amendment itself.
“Section 3 begins ‘[n]o 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 …’ It does not list the presidency,” the brief says.
“Moreover, it lists offices in descending order, beginning with the highest federal officers and progressing to the catch-all term ‘any office, civil or military, under the United States,’” Trump’s attorneys continued.
“Thus, to find that section 3 includes the presidency, one must conclude that the drafters decided to bury the most visible and prominent national office in a catch-all term that includes low ranking military officers, while choosing to explicitly reference presidential electors. This reading defies common sense and is not correct,” the brief said.
From the Trump SCOTUS brief on the Colorado 14th Amendment disqualification decision: ‘Section 3 begins “[n]o 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…
— Byron York (@ByronYork) January 4, 2024
Further, Section 3’s disqualification to hold office only applies to those who “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,” according to the language of the amendment.
Trump took no such oath. The oaths of office taken by the president and the other offices listed above are different.
So if Trump cannot be disqualified by Section 3 of the 14th Amendment, how can he be?
The founders, apparently out of respect for the presidency, left one remedy in the Constitution: impeachment.
On its website, the U.S. Senate explains the process, which many have become familiar with in recent years, due to the then-Democratic-controlled House impeaching Trump twice.
Congress is given broad latitude under the Constitution to impeach whenever it believes the president is guilty of “Treason, Bribery, or other high Crimes and Misdemeanors.”
Impeachment is done by a simple majority vote, but then the Senate must convict the president with a two-thirds vote of members present.
Though Trump was impeached twice, he was never convicted by the Senate.
If the Senate had voted to convict him, that would have removed him from office. However, it would have taken a second vote to bar him from holding office in the future, according to the Associated Press.
Only a simple majority is required for the second vote.
Neither of these things happened: no conviction, no vote to bar Trump.
The supreme courts in Michigan and Minnesota have already rejected bids to have Trump removed from their respective states’ ballots. More than a dozen states have similar cases pending.
The Colorado ballot case should be a pretty open-and-shut one for the U.S. Supreme Court.
The constitutional language is clear, meaning the Colorado Supreme Court misapplied the 14th Amendment to Trump.
His name should be on the 2024 presidential ballot in all 50 states.
