The CREW lawsuit is one of several seeking to disqualify President Trump as an “insurrectionist” because of his actions in the wake of the popular vote in the 2020 presidential election. However, these suits face so many legal hurdles that they raise the question of whether they’re really about justice or about fundraising and publicity.
The Basis of the ‘Disqualification’ Suits
The disqualification suits are purportedly based on Section 3 of the 14th Amendment. This section disqualifies insurrectionists from holding most public offices. It reads, in part, as follows:“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 ... who, having previously taken an oath, as a member of Congress, or as an officer of the United States ... 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 vote of two-thirds of each House, remove such disability.”
We’ll call this the disqualification clause.
The suits claim that President Trump’s actions in challenging the 2020 election and allegedly inciting the Jan. 6, 2021, riot make him an “insurrectionist.” As we shall see, this claim rests on several dubious premises: an overly broad definition of the constitutional word “insurrection,” an arguable reading of the phrase “office ... under the United States,” a very cramped reading of the First Amendment, and a foolish belief that a local civil case is the way to resolve an issue of this magnitude.
Hurdle #1: Standing and Ripeness
In recent years, conservatives have been disappointed when the Supreme Court dismissed challenges to Obamacare and other overreaching federal actions because the challengers didn’t have “standing.” In the Trump disqualification cases, however, it’s the political left that may face disappointment.A party needs “standing” to pursue a legal case. Rules of standing are different in federal and state courts. In federal court, a plaintiff must allege that the defendant has caused him or her harm or poses a threat of imminent harm. The plaintiff must also show that the court can do something about it (“redress it”). These requirements are summarized as (1) injury in fact, (2) causation, and (3) redressability.
For a plaintiff to maintain a case because of impending harm, the harm must be “imminent.” If it isn’t imminent, the case is “not ripe for review.” This is because when the possibility of harm is contingent or far in the future, many events may intervene to prevent it. The damage is, in judicial language, merely “speculative.” If a case isn’t ripe for review, the plaintiff has no standing, and the court will dismiss the lawsuit.
Thus, all sorts of eventualities could prevent him from winning the presidency and directly raising the disqualification issue.
That’s why, as Mr. Hyman observed, disqualification proceedings have historically been initiated after a candidate is elected to office, not before.
In state courts, such as the Colorado venue where CREW has filed, the rules for “standing” are often looser than in federal courts. Still, state judges generally don’t hear cases where the only harm is speculative. In Colorado specifically, for a plaintiff to have standing, he or she must still demonstrate harm or the threat of harm. The Colorado courts dismiss the case when the purported future injury is “remote” or “overly indirect and incidental.”
The plaintiffs’ petition in the Colorado CREW case was, of course, drafted to allege standing in the strongest possible way. Yet even its wording illustrates the speculative, amorphous, and future nature of the alleged “harm:”
“If an ineligible candidate appears on the ballot ... the ineligible candidate would have affected the integrity and fairness of the election, and the party could end up with an ineligible nominee in the general election. ... If Trump is on the ballot, voters who would otherwise vote for Petitioners’ candidates of choice will instead vote for Trump [how do they know?—ed.], reducing the likelihood that Petitioners’ candidates of choice will win the election. And Republican voters could be deprived of the chance to vote for a qualified candidate in the general election.”
“Would have effected”—“could end up”—“likelihood”—“would otherwise.“
No responsible court should adjudicate such questions.
Hurdle #2: The Disqualification Clause May Not Cover the President
Sharp-eyed readers may note that while the disqualification clause mentions senators, representatives, and presidential electors, it doesn’t mention the president or vice president. Those suing to disqualify President Trump assume that the phrase “office ... under the United States” includes the presidency. But some modern scholarship concludes that they’re wrong about that. In other words, the president may not be covered by the disqualification clause at all.The drafters of the 14th Amendment may have had good reasons for excluding the president from the disqualification clause. First, the structure of the Electoral College helps ensure that successful candidates have wide popular support among many regions of the country. The disqualification clause permits Congress to remove a person’s disability for a lesser office. But election to the presidency or vice presidency is evidence that a higher authority—the people themselves—has forgiven a presidential or vice presidential candidate.
Moreover, there are separation-of-powers issues in requiring presidential candidates or elected presidents to petition Congress for absolution: The presidency was designed to be independent of Congress, and such a petition could place a future president in a position of subordination. It could also lead to political bargaining of the most disreputable kind.
To be clear: I’m not stating definitively that the phrase “office under the United States” excludes the presidency. This issue is still a matter of dispute. But there’s a respectable argument that it isn’t, and those arguing for disqualification will have to overcome that argument.
