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.

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 âofficers of the United Statesâ who âengagedâ in âinsurrection or rebellionâ 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 âCREW,â seeks to enjoin Coloradoâs secretary of state from allowing Mr. Trump onto the Centennial Stateâs ballot. It is constructed to clear the constitutional requirement of standing, or the demand that plaintiffâs 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.
CREWâs 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 âan individual citizen does not have standing to challenge whether another individual is qualified to hold public office.â
Judge Rosenberg found that Mr. Caplanâs claims that he was injured by the events at Capitol Hill âââare not cognizable and not particularâ to him. The Supreme Court has held that those seeking a hearing in court need to show an âinjury in fact,â 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 âeligible electors,â or voters who would be affected by Mr. Trumpâs 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.
CREWâs president, Noah Bookbinder, on CNN called the petitioners âcourageous.â They comprise a former congresswoman, ââ 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 âif 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.â
This means that if Mr. Trump âis on the ballot, voters who would otherwise vote for Petitionersâ candidates of choice will instead voteâ for the former president, âreducing the likelihood that Petitionersâ candidates of choice will win the election.â 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 âRepublican voters could be deprived of the chance to vote for a qualified candidate in the general election.â 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 Coloradoâs secretary of state, Jena Griswold, a Democrat. It suggests that if Mr. Trumpâs name finds its way onto the ballot, she âwould have violated her duties under the U.S. Constitution and Colorado lawâ because his presence will affect âthe integrity and fairness of the election.â
In a statement, Ms. Griswold allowed that she is âunclearâ on how to resolve the issue, and looks forward âto the Colorado Courtâs substantive resolution of the issues and am hopeful that this case will provide guidance to election officials on Trumpâs eligibility as a candidate for office.â
Attorney General Mukasey, writing in the Wall Street Journal, offered âguidanceâ to the effect that the 14th Amendment does not disqualify Mr. Trump from office because he is not an âOfficer of the United States.â
General Mukasey explains that Mr. Trump âdidnât take and thus didnât violate an oath as an âOfficer of the United States,â and so cannot be barred by the 14th Amendment from seeking re-election.â
Mr. Mukaseyâs 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 âshall Commission all the Officers of the United States.â Were he an officer, such language suggests, he would have to commission himself.
Georgiaâs 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 âinvoking the 14th Amendment is merely the newest way of attempting to short-circuit the ballot box.â