KShould you ban Donald Trump? More specifically: Does the 14th Amendment bar the Republican from serving another term as president because he participated in an insurrection against his country in January 2021? Because the Colorado Supreme Court agreed and Maine's election commissioner agreed, Trump was barred from the March 5 primary in both states. But this Thursday, the Supreme Court in Washington will weigh in on the question. An 80-minute hearing is scheduled.
Three years after the Civil War, the Constitution was amended in 1868. Section 3 of the 14th Amendment, which is now used, reads:
“No person shall be a Senator or Representative in Congress, or an elector for the election of President or Vice-President (or) to hold any office, civil or military, in the service of the United States (…) who, after serving (…) as an officer (…) officer) of the United States (…) has been sworn to uphold the Constitution of the United States, has taken part in an insurrection or insurrection against them, or aided or abetted their enemies.”
The Colorado Supreme Court ruled in favor of a district court that Trump was involved in an insurrection with his comments surrounding the storming of the Capitol on January 6, 2021. This makes him “unelectable” as president. Trump's lawyers are expected to present four reasons at the hearing as to why the constitutional amendment does not apply to Trump at all.
Argument 1: Trump was not an “officer”
Firstly, he was never an officer of the United States. The only oath he ever swore was the presidential oath of office, not the formula provided in the Constitution for other office holders. The plaintiffs declare this to be nonsense: According to the common formulation, Trump held the “highest office” from 2017 to 2021; The Constitution refers to the office of the President as an “office” twenty times.
Trump's lawyers, however, point out that members of Congress and electors are specifically named in the standard, but not presidents. Why shouldn't the highest office of all things be mentioned?
Argument 2: Trump was not involved in any insurrection
Second, Trump never “participated” in an insurrection or riot. A number of courts have now classified the storming of the Capitol as an insurrection. Unlike the accused “insurrectionists,” Trump was not in the Capitol. He has not yet been charged with (incitement to) riot. A congressional committee recommended that. But special prosecutor Jack Smith focused on Trump's other attempts to overturn the election results.
This refers to tweets from that day in which he called for peacefulness; There were also completely different messages from him on January 6, 2021 and in the days before. After a police officer who was shot at the Capitol and two members of Congress, among others, testified, the district court in Colorado concluded that Trump's words and actions were the “factual cause” of the attack on the Capitol and a “significant contribution” to it.
Argument 3: Congress would have to take action
Third, the Trump camp argues that the constitutional amendment cannot be enforced directly by judges or election officials, but that Congress would have to take action. The wording leaves this open. Section three only stipulates that “Congress, with a two-thirds majority in each of the two houses,” can revoke an incapacity for office declared on the basis of the standard.