WASHINGTON, D.C. — On Wednesday, the liberal group Citizens for Responsibility and Ethics in Washington filed a lawsuit to bar former President Donald Trump from the primary ballot in Colorado – arguing he is ineligible to run for the White House again under a rarely used clause in the U.S. Constitution focused on candidates who have supported an “insurrection.”
Multiple indictments and a recent paper by prominent conservative legal scholars have sparked a nationwide debate over whether former President Trump should be disqualified from serving as president again under the 14th Amendment. The Leftist group Free Speech for People have filed requests with officials in ten states to disqualify Trump.
LEGAL STANDING
But this isn’t the first time a lawsuit has questioned Trump’s ability to appear on the ballot. In August, A federal court judge in Fort Lauderdale dismissed a lawsuit challenging Trump’s 2024 presidential candidacy under the 14th Amendment.
Section three of the 14th Amendment, enacted in the aftermath of the Civil War, states no person shall “hold any [state or federal] office” if they’ve previously taken an oath of office and then “engaged in insurrection or rebellion against the [U.S.], or given aid or comfort to the enemies thereof.”
Judge Robin Rosenberg, an Obama appointee, did not rule on whether the 14th Amendment was applicable in Trump’s case. Instead, Rosenberg ruled that the plaintiffs, Boynton Beach attorney Lawrence Caplan and two others, lacked “standing” to bring the challenge.
SPLIT LEGAL OPINIONS
Conservative legal scholars Michael Stokes Paulson and William Baude wrote that rebellion disqualifies Trump, arguing the section is still in effect and is “ready for use.” They contend that state officials can bar Trump from the ballot without any additional legislation or court rulings expressly permitting it.
“The bottom line is that Donald Trump both ‘engaged in’ ‘insurrection or rebellion’ and gave ‘aid or comfort’ to others engaging in such conduct, within the original meaning of those terms as employed in Section Three of the Fourteenth Amendment,” the paper states. “If the public record is accurate, the case is not even close,” Baude and Paulson wrote. “He is no longer eligible to the office of Presidency, or any other state or federal office covered by the Constitution.”
That opinion has been echoed by other legal experts, including Northwestern University law professor Steven Calabrisi, a founder of the conservative Federalist Society, who wrote that Trump encouraged his supporters to “fight like hell” ahead of January 6 and then failed to intervene once the insurrection began.
But others, including Stanford Law professor Michael McConnell, who said he has “low regard” for Trump, wrote that allowing secretaries of state to disqualify political opponents from the ballot would be “profoundly anti-democratic.”
McConnell also said he doesn’t believe January 6 reached the level of an insurrection, warning that disqualifying Trump “could empower partisans to seek disqualification every time a politician supports or speaks in support of the objectives of a political riot.”
“A BIT OF A STRETCH”
“The amendment should be interpreted as… an enormous last resort and maybe January 6 rose to that level,” McConnell told the Guardian. “It certainly was a much more serious civil disturbance than we usually see. But whether it’s actually an insurrection. I think it’s a bit of a stretch.”
In a Bloomberg op-ed, Harvard University law professor Noah Feldman opposed the 14th Amendment strategy, noting that an 1869 circuit court ruling held section three of the Amendment could only go into effect if Congress passed legislation implementing it.
Calabrisi, who encouraged candidate Chris Christie to sue, said the best shot at a successful lawsuit would likely be from a rival candidate. As of now, there is no sign that any of Trump's rivals plan to bring forth such a lawsuit. But ultimately, the issue is likely to be heard before the Supreme Court, McConnell said.
