(Dobbs) The Clock Is Ticking
Could Trump actually get kicked off the ballot, not just in Colorado but in other states too?
“A majority of the court holds that President Trump is disqualified from holding the office of President.”
Could this decision by the Colorado Supreme Court stand? Could the United States Supreme Court, where it will be appealed, uphold Colorado’s judgement on the application of the 14th Amendment?
Or is this all just wishful thinking?
The simple answer to every question is, no one knows. At this point, maybe not even U.S. Supreme Court justices themselves. On the surface they will consider the legal questions at issue, which are far from cut-and-dried, but there also is an obvious political dimension to what they decide, and a social dimension too, namely, with tens of millions of adherents, how will Trump World react if their choice is yanked from their hands and their idol’s name is struck from the ballot? It’s not inconceivable that they could make January 6th look like a picnic, especially in light of a Fox News poll just a few days ago in which three out of ten Republicans agreed with the statement that “we need a president willing to break some rules and laws to set things right.”
Given the composition of the Court— six out of nine justices appointed by Republican presidents, three of them by Donald Trump himself— the odds are not in favor of the Colorado verdict surviving. But you never know. Back in 1974, a unanimous High Court ruled against President Nixon in a case about executive privilege that effectively ended his presidency just two weeks later. Three of those justices had been appointed by Nixon but transcended their loyalty to the president with their loyalty to the Constitution.
More than a decade ago, conservative Chief Justice John Roberts voted with the liberals to uphold Obamacare. Earlier this year Justice Brett Kavanaugh joined Roberts and the Court’s three liberals in a key decision on voting rights. Where they will fall on the question of whether the Constitution says Trump cannot ever be president again is anybody’s guess.
You never know.
The first legal issue will be, does the 14th Amendment even apply to Donald Trump?
The problem with the 14th— not unlike the 2nd Amendment on guns— is its lack of clarity, which means it can be interpreted in more ways than one. Here’s how it reads: “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.”
Note what it doesn’t specifically say: that no one shall be president if they’ve engaged in insurrection. On the surface, that would make a president exempt from the Constitution and allow Donald Trump, if he wins in November, to return to the White House. On the other hand, it does say that no person shall “hold any office” if they’ve “taken an oath… as an officer of the United States” and engaged in insurrection.
Some legal scholars argue that “an officer” means an appointed position, not an elected one, and that if the 14th Amendment was meant to include a president, it would say so with exactitude. But others argue that it is absurd to think that when the 14th Amendment defined insurrection as a disqualifier for federal office, it was meant to exclude the top offices in the land from accountability. The Colorado court dealt with that by writing, “President Trump asks us to hold that (it) disqualifies every oath-breaking insurrectionist except the most powerful one and that it bars oath breakers from virtually every office, both state and federal, except the highest one in the land.” By that reasoning, there is no logic to Trump’s argument.
The second legal issue will be, was Trump actually “engaged in insurrection?” The ex-president predictably argues that he never incited the insurrection in the first place. I argue in response, with a nod to Groucho Marx, “Who are you going to believe, Trump, or your lying eyes?” The Colorado Supreme Court said essentially the same thing. Citing his calls to supporters on January 6th to “walk down to the Capitol” and “fight like hell” to “take back our country,” the court wrote, “President Trump incited and encouraged the use of violence and lawless action to disrupt the peaceful transfer of power.” He also willfully waited to call off the mob. Then the court added, “Even when the siege on the Capitol was fully underway, he continued to support it by repeatedly demanding that Vice President (Mike) Pence refuse to perform his constitutional duty and by calling Senators to persuade them to stop the counting of electoral votes. These actions constituted overt, voluntary, and direct participation in the insurrection.”
Here too though, legal scholars are split on whether the 14th Amendment applies to Trump. Some argue about due process, maintaining that since he hasn’t actually been charged with insurrection, and certainly not (yet) convicted, the 14th Amendment is moot. Even some of the dissents by Democrat-appointed justices in the Colorado decision made this point. But there’s a hole in that argument: the language of the amendment doesn’t require a charge, let alone a conviction. It simply disqualifies anyone who has been “engaged in insurrection.” The Colorado high court noted that last year’s House Select Committee to Investigate the January 6th Attack on the United States Capitol was definitive in its finding that Trump had incited the insurrection, and that the lower court in Colorado, which ruled that Trump had indeed been “engaged in insurrection” and whose decision led the state’s supreme court to make its ruling, agreed.
The third issue will be, is the fate of a presidential candidate something that courts should even be deciding. Scholars argue that if there are questions about a candidate’s qualifications, they should be decided by Congress. Even the anti-Trump Republican candidate Chris Christie told voters in New Hampshire, “I don’t believe it’s good for our country if he’s precluded from the ballot by a court.” However, it has happened before and everyone remembers: in 2000, the United States Supreme Court stopped a recount in Florida and handed the Electoral College and therefore the White House to the loser of the popular vote, George W. Bush. I don’t remember Republicans protesting at the time that the Court was the wrong body to make that call.
Here too, Colorado’s supreme court, speaking for the state, chimed in, asserting that it has the authority to assess the qualifications of presidential candidates who want their name on the state’s ballot. “Were we to adopt President Trump’s view,” it argued, “Colorado could not exclude from the ballot even candidates who plainly do not satisfy the age, residency and citizenship requirements” of the Constitution. “It would mean that the state would be powerless to exclude a twenty-eight-year-old, a non-resident of the United States, or even a foreign national from the presidential primary ballot in Colorado.”
These are sticky issues, all of them. If it was just about Colorado, then practically speaking it wouldn’t much matter in the 2024 presidential election. Both of Colorado’s senators are Democrats, five of its eight representatives in Congress are Democrats, and the state hasn’t had a Republican governor since 2007. It has deep pockets of conservatism— Lauren Boebert represents western and southern portions of the state. But in general, Colorado has become a solid blue state, and having lost there in both 2016 and 2020, Donald Trump is not likely to win Colorado’s electors next time even if he’s on the ballot.
But if the U.S. Supreme Court rules on Trump’s appeal, it won’t necessarily apply only to Colorado. Conceivably it could apply to all fifty states. That is to say, if the Court in Washington upholds the Colorado decision, there could be challenges based on its reasoning and Trump could be kicked off the ballot in the November election by other states, including swing states in which the next election is likely to be decided.
Trump’s first reaction to the Colorado ruling was that it is “eliminating the rights of Colorado voters to vote for the candidate of their choice.” Ironic, since his nefarious schemes in 2020 with false electors in several states was designed to do just that.
“We do not reach these conclusions lightly,” Colorado’s high court said. “We are mindful of the magnitude and weight of the questions now before us.” Our best hope is that the justices in the High Court in Washington see it the same way. The clock is ticking.
Over more than five decades Greg Dobbs has been a correspondent for two television networks including ABC News, a political columnist for The Denver Post and syndicated columnist for Scripps newspapers, a moderator on Rocky Mountain PBS, and author of two books, including one about the life of a foreign correspondent called “Life in the Wrong Lane.” He also co-authored a book about the seminal year for baby boomers, called “1969: Are You Still Listening?” He has covered presidencies, politics, and the U.S. space program at home, and wars, natural disasters, and other crises around the globe, from Afghanistan to South Africa, from Iran to Egypt, from the Soviet Union to Saudi Arabia, from Nicaragua to Namibia, from Vietnam to Venezuela, from Libya to Liberia, from Panama to Poland. Dobbs has won three Emmys, the Distinguished Service Award from the Society of Professional Journalists, and as a 37-year resident of Colorado, a place in the Denver Press Club Hall of Fame.
Thanks Greg....I cannot yet get my mind around the likelihood that SCOTUS will touch this with a 10 foot poll....not just partisan biases...as the American media and many legal pundits are saying everywhere....IT'S UNPRECEDENTED (duh)...the leading presumptive candidate for the GOP nomination.....Of course given the stakes w this photo nazi wanting to be our dictator...maybe there will be 5 Justices with enough common sense to know if DJT wins, he ends the 250 year American experiment and they'd be willing handmaidens.