Disclaimer: I am not now, nor have I ever been a lawyer. I never went to law school. Nor have I read law to a degree that my reading would give me credit in law school. I am just an American with a citizen’s understanding of legal matters.

Fact:

Currently, there is a matter before the United States Supreme Court(SCOTUS) regarding Donald Trump’s candidacy for President of the United States (POTUS) and the 14^th amendment to the United States Constitution.

Opinion:

For me, this all boils down to a single question: Would the 14^th amendment allow Jefferson Davis or Robert E. Lee become president in 1872? The obvious, and correct, answer is no. That would be something the authors 14^th amendment would not have allowed.

Discussion (Opinion):

I’ve seen analysts on CNN cite two reasons: Due process and the text of the amendment does mentions several offices, but not POTUS.

Due Process:

Analysts, as reported in the media, have asserted that Trump can not be labeled an insurrectionist because he has not been convicted of insurrection. For example, Brian Mounce, guest columnist, for The Tennessean on December 28, 2023 states:

Colorado did not hold a jury trial to determine if Trump was an insurrectionist, nor provide the evidence to be used against him. Colorado did not adhere to stringent rules of evidence or procedures. And the burden of proof used against Trump was not beyond a reasonable doubt. Rules matter. Due process matters. (www.tennessean.com/story/opinion/contributors/2023/12/28/colorado-supreme-court-trump-presidential-ballot-constitution-due-process-5th-14th-amendments/72049528007/)

Similar views have been expressed, a lot, since the Colorado rulings. This seems a bit odd. Couy Griffin, a county commissioner in New Mexico, was removed from office for his participation in the January 6, 2023 attack on the capitol. He was convicted trespassing and acquitted on disorderly conduct. He was not even charged with insurrection or rebellion, but a court ruled the 14^th amendment barred him from his county commissioner seat.

There are several other cases where people lose property for criminal activity without criminal conviction. Forfeiture comes to mind. From the FBI website (www.fbi.gov/investigate/white-collar-crime/asset-forfeiture) we see:

Civil Judicial Forfeiture: Civil judicial forfeiture is a judicial process that does not require a criminal conviction and is a legal tool that allows law enforcement to seize property that is involved in a crime. Referred to as an in rem (against the property) action, it is an action filed against the property itself, rather than a person. In civil judicial forfeiture, an individual has the right to contest the seizure through trial proceedings. The government then must prove that the property facilitated criminal activity or represents criminal proceeds.

Due process can simply mean as prescribed by law (as interpreted by courts). Additionally, the law must allow for appeals in a courts of law. In the Colorado case, there was a trial, evidence was presented and a judge made a ruling. Due process achieved. The judges ruling included an interpretation which will be discussed below.

Apparently, each state has its own election procedures and guidelines. In Maine, an elected official declared Trump ineligible for office. Trump can appeal that decision in Maine’s court. Even though there was no trial, due process is attained.

Of note: Neither Jefferson Davis nor Robert E. Lee were convicted of insurrection, rebellion. Davis was indicted for treason and spent time in prison awaiting trial.

Textual Disagreements:

One way to read Amendment 14 Section 3 is:

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof But Congress may by a vote of two-thirds of each House, remove such disability.”

The other is:

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof But Congress may by a vote of two-thirds of each House, remove such disability.

In short, the trial judge in Colorado read it the first way. The section lists specific elected officials and electors (appointed by states), but fails to list POTUS and Vice POTUS. This is a rather narrow reading of the section. The Colorado Supreme Court read it the second way, a very broad way.

For some reason, again I’m not a lawyer, the Colorado Supreme Court reaffirmed the lower court’s factual finding that Donald Trump engaged in insurrection. That seemed unnecessary.

To me, the issue before SCOTUS should be which way to read Section 3. The amendment was ratified in July 1868.

Opinion:

July 1868 seems too close to election day to mount an effective campaign, so let’s use 1872.

For me, the answer to the textual issue boils down to the question above. Would the 14^th amendment allow Jefferson Davis or Robert E. Lee become president in 1872? I think, that back then, the answer would be NO. That should be the answer now. There is no way the Union would welcome either men, nor any other confederate, as POTUS. I hope SCOTUS sees it the same way.

I doubt it will. Republicans have a 6-3 majority in the court. Three supreme court Justices are Trump appointees and Clarence Thomas’s wife, Virginia, agreed with the Trump election conspiracy theory. If several actual lawyers pontificating in the media seem inclined to the first reading of Section 3, then there is room for SCOTUS to rule that way. I think it is wrong. Do they really think Jefferson Davis could have run for president in 1872?

A trickier question goes something like this: If SCOTUS confirms the Colorado Supreme Court’s decision, does that bar Trump from the presidency?

On one level, it is up to each state to put him on the ballot. I think SCOTUS will find splitting the US into red states and blue states the most expedient course. States will appoint electors and their ballots will be cast in the Electoral College.

Should Trump be duly elected, can his claim to office be challenged under the 14^th amendment? That can be a little trickier. Trump and the Republicans can put laws in place to make that impractical. Who knows, Trump could extend his one day dictatorship and execute anyone who tries.