Un-Presidented: The Constitution Versus Donald Trump (Again)

Explaining the 14th Amendment and the Court

According to the Colorado judicial system, Donald J. Trump has committed insurrection which, under the 14^th Amendment, can bar him from running for office in that state. It has also ruled that the Insurrection clause of the 14^th Amendment applies to presidents and does not need an act of Congress to give it power.

Did Trump Commit Insurrection?

If you were marginally awake between September 2020 and January 6, 2021, this is an astounding yes. But what happens practically and what counts legally are two separate things.

In short, it’s not enough that a sitting president of the United States deliberately cast doubt on the integrity of US elections so that if he lost he could cry foul. It’s not enough that he considered using the US military against civilians to remain in power. It is also not enough that he called domestic terrorists and others to the White House to stoke the fires of rage, had to be restrained from walking to the Capitol himself, refused to call off his posse until it was clear they were going to lose, nor all but advocated the execution of his Vice President.

All that is practical insurrection. What it needs to be for the 14^th Amendment is legal insurrection: it has to meet the legal definition or whatever happened practically, no matter how shady, doesn’t count (for more like this, see the US Tax Code).

What is a “finding of fact”?

What the Colorado courts did that no other has, is found that Trump, legally, did commit insurrection. That’s what makes this case interesting. (I’ll have a breakdown of the dissents for you tomorrow.)

A finding of fact is basically what it sounds like. There’s some question about what happened in legal terms, and the judge or jury makes a decision. The lower courts almost always have the last word on the finding of facts.

(I’ll probably pin a short discussion on this later, but remember, in the US we have a three level judicial system. Check out PBS Crash Course for some Legal System Basics. Trial courts look at facts, appellate courts look at procedures, and courts of last resort (usually supreme/superior courts) look at constitutional issues.)

Upper-level courts usually only overturn the lower court’s finding of fact if it was “clearly erroneous.” Usually it’s the appellate court who makes this call look for a lack of “substantial credible evidence.” They give a lot of deference to the lower court but might check for things like juror bias or instruction problems, evidence that was gathered wrongly or inadmissible, and other things that would show the lower court made a wrong conclusion.

The Colorado Supreme Court affirmed the finding of fact that Trump had committed insurrection and that his “Stop the Steal” speech was not covered by the First Amendment. They also concluded that the 14^th Amendment can be used to bar Trump from the ballot.

How does the 14^th Amendment apply here?

You’ve been hearing a lot about my friend (and yours!) the 14^th Amendment. The 14^th Amendment deliberately changed the legal landscape in a way that made an 18^th century Constitution fitting for a 19^th century nation. (We could probably use an update in some areas).

At its core what the 14^th Amendment did was incorporate the Bill of Rights to the states. Before the 14^th Amendment the Bill of Rights did not apply to the states, and the federal government had no mechanism by which to enforce them.

With the 14^th, you get a floor of equal protection that all states must meet, privileges and immunities (actually the Court gutted that one immediately), and a level of due process all people are owed.

The Insurrection part that everyone’s talking about today is in section 3.

Section 3: 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. …

Being a bit vague, this section has actually caused some problems for the Colorado courts. It does not state the President specifically, so the lower court ruled that Trump did commit insurrection but couldn’t be barred from office. Their thinking was that the president is not an “officer” of the United States, so the lower court kept Trump on the ballot.

(Using this precedent would make it easier to bar Trump’s insurrection helpers in Congress, but that would have to happen in each Congressperson’s state, so don’t hold your breath.)

What did the Colorado Court say?

The Colorado Supreme Court per curiam (that means the whole court) actually said that the 14^th Amendment’s section 3 is “self-enforcing” (Congress doesn’t need to pass legislation to make it happen) and that it does extend to the president.

What is the Supreme Court going to do?

Honestly, who knows. They’ll almost certainly grant cert (agree to take the case). They could dodge it by saying it’s a state matter and states get some level of say over who is on their ballot, but it’s unlikely. Allowing the state to bar people from the ballot sets an easily abused precedent, so the Court’s going to want to clarify some ground rules before Red States deicide to ban Biden in retaliation (because our political culture is so functional right now).

Once the case gets to the Court, it could go a few ways. The Court could observe longstanding precedent and accept the findings of fact of the lower courts, and state that Trump committed insurrection. In this case, you’d get a 6-3 or 7-2 ruling (Thomas, Alito, and maybe Barrett) who would rule in Trump’s favor anyway. Thomas and Alito especially believe the president is all but untouchable (and Thomas’s wife tried to overturn the 2020 election). With at least one judge living in a Qanon/Election Denying household, you won’t get the unanimous decision you really need on this case.

The judges could uphold the finding of fact, but read that the 14^th Amendment does not include the president. This is where you would likely get another 6-3 or so ruling. Justices Sotomayor and Kagan will vote whichever way the fact finding goes. They’ll likely both uphold the Colorado insurrection finding, but it’s not clear where they’ll fall on whether the president counts as an “officer” of the government.

And Justice Jackson, I think, will vote fully in support of what the 14^th Amendment requires. Her writings on the 14^th Amendment and its role in our “progressive originalism” pretty much put her squarely in a textualist capacity on this one, and I would expect her to side with Colorado.

The other option is not that the conservative judges put aside their partisan ideology and vote on the future of the Supreme Court. Conservatives don’t need a Democrat in the White House to control the Court. They’ve got a 6-3 majority, with some pretty young judges who will stay there for decades. They’ve won the politics game, but at the expense of the legitimacy game.

This is where self-interest could come in. Here they throw Trump under the bus so they can keep pushing a Christian nationalist agenda (that’s Barrett, Gorsuch, and Kavanaugh) and pretending they’re neutral arbiters of the law (Roberts). Roberts will likely err on the side of whatever he thinks will help the Court gain back a shred of legitimacy. (Sometimes I feel bad for Roberts because he loves the Court so much, and history will consider his Court one of the most illegitimate. Then I remember that he helped entrench the political movement that got us here, and I hear my grandmother’s “you made you bed, now lie in it.”)

But, as Dean Obeidallah notes, it is unclear what the Supreme Court will do. In some ways that’s good: we can’t just assume conservatives will vote with Trump on this one because there are a number of legal, personal, and political reasons they might not. In other ways, it’s going to be a real body blow to the rule of law if the Supreme Court says there’s no punishment for a president who committed practical and legal insurrection.

What does this mean?

The only thing we can be sure of with Trump is that there’s going to be chaos and a spectacle. But as one of my favorite patriots says (Hi, Dan Rather!), we have to find ways to stay steady amidst the storm.