Efforts To Disqualify Trump Using 14th Amendment Are Growing in Sophistication, Though Attorney General Mukasey Warns of an Error

A suit, out of Colorado, tries a new approach to clear a constitutional hurdle.

AP/Michael Conroy, file
President Trump speaks at the National Rifle Association Convention at Indianapolis, on April 14, 2023. AP/Michael Conroy, file

The lawsuit in Colorado to disqualify President Trump from the 2024 presidential race on the basis of the 14th Amendment takes an innovative approach to a constitutional pitfall that could make the difference between Mr. Trump in the White House and off the ballot. 

Section Three of the 14th Amendment, added to the Constitution in 1868, bars “officers of the United States” who “engaged” in “insurrection or rebellion” from holding office. Originally meant to address the conundrum of what to do with those who served the Confederacy, it has emerged, from a long dormancy, as a strategy to block Mr. Trump from running for a second term. 

The Colorado suit, brought in state court by the Center for Responsibility and Ethics in Washington, or “CREW,” seeks to enjoin Colorado’s secretary of state from allowing Mr. Trump onto the Centennial State’s ballot. It is constructed to clear the constitutional requirement of standing, or the demand that plaintiff’s demonstrate a concrete injury that a verdict can remedy. 

Standing is a threshold requirement to get into court, meaning that it has to be shown as soon as the case is brought, before the merits are presented at trial. If standing is found to be lacking, the case is immediately dismissed. This makes it a sine qua non for anyone seeking redress from a jury or the bench.

CREW’s lawyers likely had one eye on the dismissal, last week, of a disqualification case in federal court in southern Florida. That suit, brought by a tax lawyer, was rebuffed because the presiding judge, Robin Rosenberg, found that “an individual citizen does not have standing to challenge whether another individual is qualified to hold public office.”

Judge Rosenberg found that Mr. Caplan’s claims that he was injured by the events at Capitol Hill  ​​“are not cognizable and not particular” to him. The Supreme Court has held that those seeking a hearing in court need to show an “injury in fact,” meaning that it is concrete, particularized, and imminent.

CREW seeks to insulate its case against an early dismissal for lack of standing by selecting five petitioners who qualify as “eligible electors,” or voters who would be affected by Mr. Trump’s appearance on the ballot. Four of them are registered Republicans, and two are unaffiliated with either party. In 2016, Colorado voters approved an initiative that allowed unaffiliated voters to participate in party primaries.

CREW’s president, Noah Bookbinder, on CNN called the petitioners “courageous.” They comprise a former congresswoman, ​​ Claudine Schneider, as well as a former majority leader of the Colorado Senate, Norma Anderson. Last year, CREW successfully sued to disqualify a New Mexico county commissioner from office on the basis of the 14th Amendment.  

The filing reckons that “if an ineligible candidate appears on the ballot that Petitioners will cast in the election, Petitioners will suffer an injury in fact to a legally protected interest under Colorado law because the election would not be among eligible candidates.” 

This means that if Mr. Trump “is on the ballot, voters who would otherwise vote for Petitioners’ candidates of choice will instead vote” for the former president, “reducing the likelihood that Petitioners’ candidates of choice will win the election.” The harm the suit envisions is that the preferred candidate of those who brought it will suffer by sharing a ballot with the former president.

The theory of standing, then, relies on the proposition that “Republican voters could be deprived of the chance to vote for a qualified candidate in the general election.” A vote for Mr. Trump would in effect be a wasted vote, because it would accrue to a candidate who could, CREW implies, never live at the White House.

The suit is addressed to Colorado’s secretary of state, Jena Griswold, a Democrat. It suggests that if Mr. Trump’s name finds its way onto the ballot, she “would have violated her duties under the U.S. Constitution and Colorado law” because his presence will affect “the integrity and fairness of the election.”

In a statement, Ms. Griswold allowed that she is “unclear” on how to resolve the issue, and looks forward “to the Colorado Court’s substantive resolution of the issues and am hopeful that this case will provide guidance to election officials on Trump’s eligibility as a candidate for office.”

Attorney General Mukasey, writing in the Wall Street Journal, offered “guidance” to the effect that the 14th Amendment does not disqualify Mr. Trump from office because he is not an “Officer of the United States.”

General Mukasey explains that Mr. Trump  “didn’t take and thus didn’t violate an oath as an ‘Officer of the United States,’ and so cannot be barred by the 14th Amendment from seeking re-election.”

Mr. Mukasey’s argument that the president is not an officer of the United States could find support in another phrase in the Constitution, which ordains that the president “shall Commission all the Officers of the United States.” Were he an officer, such language suggests, he would have to commission himself.

Georgia’s secretary of state, Bradley Raffensperger, has likewise come out against using the 14th Amendment to bar Mr. Trump, or anyone else, from office. He writes in the Journal that “invoking the 14th Amendment is merely the newest way of attempting to short-circuit the ballot box.”

The New York Sun

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