A Judge Calls Out the Democrats on the 14th Amendment
At Denver, a judge rules that even if a candidate for president had ‘engaged in insurrection’ he cannot be barred from the ballot under the 14th Amendment because he is not an ‘officer of the United States.’
The judicial finding in Colorado that neither Donald Trump nor any other person can be disqualified from the presidency under the 14th Amendment — even if he “engaged in insurrection” — certainly puts the hay down where, as we like to say, us mules can get to it.* It turns out that, in the view of Judge Sarah Wallace, the 14th Amendment’s disqualification clause applies only to officers of the United States and individual states and counties.
The language of the 14th Amendment’s Section Three bars from holding “any office” such persons who, having previously taken an oath to the Constitution, then engaged in insurrection or rebellion against the United States. Judge Wallace, though, found that a president is not an officer of the United States because the president isn’t appointed. Rather he is elected by the voters, and as such can’t be trifled with under the 14th.
One signal on this head is from the language of the Constitution itself. In Article II, it assigns to the president, subject to the advice and consent of the Senate, the duty to appoint ambassadors, other public ministers and consuls, judges of the supreme Court, and “all other Officers of the United States” whose appointment is not elsewhere provided for in the Constitution. Were a president an officer, he’d have to appoint himself one.
If the president is not an officer of the United States, then the insurrection question is mooted. More than that, it is dicta, without legal force. We understand that much will be made of the judicial finding that Mr. Trump “engaged in an insurrection on January 6, 2021 through incitement.” Judge Wallace is not the first state court jurist to discern an insurrection. Last year, so did a New Mexican, when he disqualified a county commissioner.
No federal court, though, has found that Mr. Trump engaged in an insurrection, or even that one took place. Special Counsel Jack Smith shrank from that charge, though that has not kept him from working to tie Mr. Trump to the chaos at the Capitol. Mr. Trump was impeached by the House two years ago only to be discovered by the Senate to be not guilty of incitement to insurrection. We’ve noted the ensuing double jeopardy concerns.
Judge Wallace’s “Solomon Moment” is yes to an “insurrection,” no to the president being an “officer.” One legal sage, Joshua Blackman, tells us that her ruling is the “proverbial ticket for one ride” that could well enable it to reach the Supreme Court. It would keep Mr. Trump on the ballot while keeping the 14th Amendment intact. Another scholar, Seth Tillman, predicts to us that Judge Wallace’s ruling will stand. That, though, is no sure thing.
Judge Wallace notes her “reluctance to embrace an interpretation which would disqualify a presidential candidate” without a clear constitutional signal. That reluctance is a mark of humility and wisdom, a bow to the Constitution and to the voters. Plus, too, a reminder that the executive is the only branch whose powers are vested entirely in one individual. It is not a technical question, but a bedrock principle. One that not even a rebellion can rattle.
The whole campaign to clobber Mr. Trump with the 14th Amendment can be seen as recognition by the Democrats that they are losing on the issues. A president enfeebled by age has pursued a campaign of appeasement with Iran and has delivered an economy weakened by inflation and hobbled by regulations. No wonder his party is trying constitutional legerdemain. It might be the only way President Biden himself can avoid being disqualified by the voters.
* This business about putting the hay down where us mules can get to it was a formulation we first heard from Ralph McGill of the Atlanta Constitution.
Correction: McGill is the spelling of the last name of the late editor of the Atlanta Constitution. The name was given incorrectly in the bulldog.