Republished with permission from Lucian K. Truscott IV
That’s the way Donald Trump’s appeal to the Supreme Court reads as his team of expert lawyers attempts to take on Colorado’s ban of Trump from the state’s presidential ballot based on the 14th Amendment. I mean, the word surreal will not suffice. Under Trump’s reading of the Constitution, the 14th Amendment’s ban on anyone who has violated their oath to the Constitution by committing insurrection applies only to those who already “hold” office, not to those seeking office. So, Donald Trump is telling the court that the 14th Amendment demands that a person who has committed insurrection must be elected to office before he can be disqualified.
Constitutional scholars such as Lawrence Tribe of Harvard and the distinguished conservative jurist J. Michael Luttig have argued that Section Three of the 14th Amendment is “self-executing,” that it “requires no legislation, criminal conviction, or other judicial action in order to effectuate its command.” Grounds are found for this interpretation in the amendment’s final sentence, that “Congress may by a vote of two-thirds of each House, remove such disability,” the disability, of course being the ban against holding office if you are an insurrectionist.
Trump’s legal eagles read this provision upside down and backwards, that the Constitution is requiring that an insurrectionist achieve office before the 14th Amendment kicks in. The amendment was written after the Civil War to ban former Confederates from holding elective office, not just in the Federal government, but “under any state” in the words of the amendment. Now, I guess you could make an argument that the Constitution is overstepping its powers in that demand. Under a so-called states rights reading of the Constitution, it should be up to the individual states to decide who gets to serve in their legislatures or be elected governor, or even be appointed to any “office.”
But there it is. Not only does the 14th Amendment ban insurrectionists from serving in federal office, it bans them from election to office in their own states. That is how seriously the writers of the 14th Amendment took the crime committed by Confederates, who fought a war against the government of the United States and in so doing violated the oaths taken by anyone who had served in federal office or who had been soldiers in the army of the United States.
You are out, the 14th Amendment in effect says. It’s a lifetime ban.
But not Trump, says his appeal. “The Constitution requires that the President qualify under section 3 only during the time that he holds office,” reads the appeal. So, at the time that the 14th Amendment was written, what Trump and his lawyers are saying is that the writers meant for former Confederates to have to run for office and be elected in order for the provision banning them from office to take effect.
Hey, Jefferson Davis! Why don’t you run for governor of Mississippi so we can ban you from office? Or maybe what we’ll do, because we’ve decided that you have adequately made amends for having been the president of the Confederacy, we’ll decide to pass a law, by a vote of two-thirds in the House and the Senate, allowing you to serve. How about that, Jeff?
Absurdist enough for you? Trump’s appeal goes on to assert that the 14th Amendment does not apply to him for two more surreal reasons: because the presidency is not an “officer of the United States” under the 14th Amendment, and because Trump, as president, did not take an oath to, in the words of the amendment, “support the Constitution of the United States,” but rather to “preserve, protect, and defend the Constitution,” in the words of the presidential oath.
Now, we could call Trump’s Supreme Court appeal hair-splitting, but that wouldn’t be fair to inadequately conditioned and treated hair, would it?
Two hundred Republican members of Congress weighed in with an amicus brief on Thursday asserting that the state of Colorado had “trampled the prerogatives of members of Congress.”
Of course they did.
Any normal Supreme Court, which is to say, any other sitting Supreme Court in the history of the United States, would throw this out of control assemblage of legal table scraps out with the garbage.
The Supreme Court will hear oral arguments on February 8. It’s too bad Dali isn’t alive to be there and sketch the proceedings, because I’m sure it would take his talents to put it across.
Lucian K. Truscott IV
Lucian K. Truscott IV, a graduate of West Point, has had a 50-year career as a journalist, novelist and screenwriter. He has covered stories such as Watergate, the Stonewall riots and wars in Lebanon, Iraq and Afghanistan. He is also the author of five bestselling novels and several unsuccessful motion pictures. He has three children, lives in rural Pennsylvania and spends his time Worrying About the State of Our Nation and madly scribbling in a so-far fruitless attempt to Make Things Better.