Colorado Buys in to Federalist Society View of the 14th Amendment

I wrote this post four months ago.  At the time, I considered the likelihood that this argument would hold up and have any practical impact on the 2024 election to be remote, for reasons detailed below.  Now, however, with the Colorado supreme court ruling Trump off the ballot, the case will go to the United States Supreme Court.  Ordinarily, the 6-3 conservative majority would have made short work of such an arcane contention, but, also as detailed below and as I’ve written a number of times, the Republican donor class has grown increasingly desperate to get Trump off the ballot.  As such, while a Court ruling upholding the Colorado decision is still way less than a 50-50 proposition, it is no longer an impossibility.

One of the most overused words in modern news coverage is “bombshell.” Nonetheless, reports that two hard-right constitutional law professors wrote an article in which they made a powerful case that Donald Trump is not legally eligible to again run for president certainly rates that term. 

Their thesis rests on Section 3 of the 14^th Amendment, which states that any person who had previously taken “an oath to support the Constitution,” and then “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof,” is prohibited from holding national or state office, unless granted amnesty by 2/3 of both houses of Congress.

Section 3 was drafted after the Civil War to keep former Confederates from re-entering government. In this new, dense, minutely detailed, 70-page dissertation, the authors spend almost all their time demonstrating that the clause is appropriate to what transpired following the 2020 presidential election.  Only in the last pages do they get to where, as they put it, “the rubber meets the road.”

“Consider the overall package of events,” they write, “the dishonest attempts to set aside valid state election results with false claims of voter fraud; the attempted subversion of the constitutional processes for states’ selection of electors for President and Vice President; the efforts to have the Vice President unconstitutionally claim a power to refuse to count electoral votes certified and submitted by several states; the efforts of Members of Congress to reject votes lawfully cast by electors; and, finally, the fomenting and incitement of a mob that attempted to forcibly prevent Congress’s and the Vice President’s counting of such lawfully cast votes, culminating in a violent and deadly assault on the Capitol (and Congress and the Vice President) on January 6, 2021.”

That these sentiments are coming from ultraconservatives is surprising enough, but after concluding that the “January 6, 2021 attack qualifies as an insurrection within the meaning of Section 3,” they go on to assert that “former President Donald J. Trump is constitutionally disqualified from again being President (or holding any other covered office) because of his role in the attempted overthrow of the 2020 election and the events leading to the January 6 attack… All who are committed to the Constitution should take note and say so.”

Pretty stunning stuff.  But even more stunning is that after tens of thousands of words, they arrive at their…bombshell…conclusion despite the fact that Trump has not been convicted of a crime nor has he been definitively linked legally to any of the events on which that conclusion is based.

The authors are aware of this rather glaring hole in their argument and attempt to shimmy past it by evoking an impeachment proceeding in which Trump was acquitted. “The Senate’s vote to convict Trump of this charge, while falling short of the two-thirds majority required by the Constitution’s impeachment process, constituted a substantial majority (57 to 43) of the Senate endorsing the House’s charge and characterization. Majorities of both houses of Congress thus determined—at least twice—that January 6th was an insurrection; and in the impeachment proceedings majorities of both houses determined that Trump was responsible for having incited that insurrection.”

Not exactly the sort of linkage many—or any—conservatives have previously made between Trump and January 6.  From the moment the article became public, legal analysts in both print and broadcast media have been debating the Constitutional merits of the argument and wondering if any state will actually use that interpretation to prevent Trump from being on the ballot.

Interesting speculation to be sure, but it misses the most important point.

Key here is not what the article says but rather where it came from.

The authors, William Baude and Michael Stokes Paulsen, are both active members of the Federalist Society, an organization heretofore among Trump’s most fervent supporters, even well after these events transpired.  In writing this condemnation of their former hero, they were neither apostates nor working in secret, as the long list of Federalist Society scholars receiving acknowledgements will attest.  Nor is it possible that society head Leonard Leo was unaware or even disapproving of what Baude and Paulsen were doing.  (Whether Judge Aileen Cannon previously knew of the article is not known, but she surely does now. Time will only tell if these sentiments work their way into her handling of the classified documents case.)

Thus, the question is, what possible motive could Leonard Leo and his cohorts, dedicated advisors and supporters of Donald Trump, instrumental in getting justices Gorsuch, Kavanaugh, and Barrett both nominated and confirmed, have for selling him out?

Panic. 

Last month, I wrote a piece, “One, No Trump,” in which I postulated that with the Republican Party cleaved in two, and a growing number of moderates and even conservatives having announced that they will find it extremely difficult to vote for Trump a second or third time, the party’s only means of avoiding disaster was to find a suitable replacement.  For a while, they pinned their hopes on Ron DeSantis, but he has fallen off a cliff so high that he seems, like Wile E. Coyote, to have been reduced to a speck of dust at the bottom.

I wrote further, “Savvy operators like the Koch brothers are all too aware that Trump’s negatives could easily doom them nationally, in addition to perhaps costing them the Senate, with Trump-backed candidates losing in Ohio, Montana, West Virginia, and Arizona.” 

But without DeSantis, these party professionals did not have any obvious alternatives. With Trump dominating the early polling and no other Republican able to even crack double figures, there seemed only one avenue open to preventing Trump from winning the nomination and then bringing the party down with him…

Changing the rules to disqualify him from getting on the ballot.

“Ordinarily,” I noted, “Republicans have proven themselves adept at such actions—some would call it cheating—as witness Neil Gorsuch and Amy Coney Barrett’s presence on the Supreme Court.  In this instance, however, it will be more difficult to, for example, make anyone under indictment for a felony ineligible to enter a primary, without causing a pro-Trump rebellion.”

At the time, I saw no other way that conservatives could bar Trump from running.

Desperate though the Section 3 idea may be, perhaps they have found one.