As Donald Trump faces 91 felony counts in four different cases, including four criminal charges related to accusations that he sought to subvert American democracy by trying to overturn his 2020 election loss to Joe Biden, Colorado and Maine have disqualified Trump from appearing on state ballots under Section 3 of the 14th Amendment, also known as the insurrection clause.
Responding to Trump’s appeal of the Colorado Supreme Court ruling that barred him from appearing on the that state’s Republican primary ballot, the U.S. Supreme Court heard oral arguments in the case Trump v. Anderson on Feb. 8. The questions asked by the justices during the hearing indicated general skepticism of allowing states to make their own decisions on disqualifying candidates from the ballot, both because of the effect such decisions would have on the outcome of a national election and the difficulty state courts face in reviewing those decisions.
Between The Lines’ Scott Harris spoke with Amira Mattar, counsel with the group Free Speech For People, which initiated lawsuits to keep Trump off the ballot in five states and supported Citizens for Responsibility and Ethics in Washington’s successful insurrectionist clause lawsuit in Colorado. Here Mattar reviews the Supreme Court hearing, noting that questions from the justices conspicuously avoided dealing with the central issue: whether or not Donald Trump engaged in an insurrection and should be barred from holding any future public office.
AMIRA MATTAR: We can’t know for certain why the justices or how the justices would decide, just by the nature of their questions. These are experienced legal scholars, and they’re going to ask really tough questions to anybody who’s going to step up to the bench. And that’s precisely what they saw. We saw that they were very concerned about whether states can or cannot do this. That was really where the bulk of questions lay.
The other concern that they had was whether Section 3 includes the president so that it could apply to Donald Trump. And of course, Donald Trump’s attorneys were claiming that because Section 3 does not specifically outline “president,” that that somehow is a reason why it shouldn’t apply to Donald Trump. And that’s really where the justices were asking tough questions on both sides.
What we did not see, which is very interesting, was virtually no discussion whatsoever as to whether Trump had engaged in insurrection. It was as if it was kind of like the elephant in the room. They had maybe danced around it a little bit, but there was really very little discussion about what happened on Jan. 6, the details of what happened, what Trump did or did not do and should have done.
And so it’s very interesting. And they didn’t touch the issue whatsoever. But the courts that have reviewed the evidence in merits of this question, Maine and Colorado, have decided that Trump did incite insurrection and that he, in fact, did engage in insurrection. For that reason, he is disqualified. The Supreme Court didn’t touch that.
SCOTT HARRIS: It really seemed, as you said, the elephant in the room that the justices didn’t touch. There have been a lot of commentators that said the justices on the Supreme Court are looking for a, quote unquote, off-ramp, not wanting to rule on the key issues in the Trump vs. Anderson Colorado case, but trying to find some kind of loophole that would give them a pass to not judge the validity of the charge that Donald Trump did engage in insurrection and did break his oath of office to uphold and protect the U.S. Constitution.
AMIRA MATTAR: That is the concern. I mean, this is too grave of an issue for it to rest on legal technicalities. And that’s what we saw last week, is really nit-picking narrow conversations that don’t really address what happened on Jan. 6, but rest on arguments that Trump’s lawyers had put forth and that oftentimes didn’t have historical backing or substantiation.
The terms and the language of Section 3 is overwhelmingly broad and deliberately so. It’s supposed to apply to any and all offices under the United States. And if we are to at all acknowledge that this would not include the highest office of the United States, the president, I think it would make a mockery of the Constitution.
SCOTT HARRIS: Thank you, Amira. I did want to ask you the big question here. If the Supreme Court guts Section 3 of the 14th Amendment by choosing some off-ramp that really disables the ability of the U.S. government to prevent insurrectionists or people who want to overturn elections from running and holding office, what are the consequences for the country and democracy?
AMIRA MATTAR: If the events of Jan. 6, 2021 — all the violence that we saw, the lives that were lost on that day — if all of that doesn’t amount to an insurrection in which the chief of that insurrection is not disqualified for office, in fact, he can run for office again and be president again, then it really begs the question: What else would this provision be used for?
What would Section 3 ever apply to? It would make a a mockery of Section 3 of the 14th Amendment and its radical history of what it was intended to do, which was to keep oath-breaking insurrectionists out of office. And the fact that the Supreme Court really didn’t engage with the evidence of it, of the record, as I said, is similar to kind of like the elephant in the room.
So let’s say Trump succeeds and actually wins the election and he becomes president again. There’s that elephant in the room and that would really make a mockery of the Constitution and the 14th Amendment’s history.
For more information, visit Free Speech For People at freespeechforpeople.
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