OPINION: This article may contain commentary which reflects the author’s opinion.
The U.S. Supreme Court has spent years avoiding inquiries about former President Donald Trump, but now it must decide the most important of them all: Does the 14th Amendment prohibit him from seeking the presidency because he is allegedly an insurrectionist?
Adding further political heat to an already contentious court case, a simple “yes” or “no” may not suffice. Despite the case’s abundance of novel and complex legal issues, the justices may attempt to sidestep a decision that would disqualify Trump from the election or give him an unqualified triumph in terms of public relations and the law.
The Supreme Court announced that it will hear Trump’s appeal of a Colorado ruling disqualifying him for his actions leading up to the Jan. 6, 2021, assault on the Capitol at an expedited hearing on February 8.
“I certainly could understand if the court would like any of the procedural avenues that would avoid squarely addressing any of the merits. As a matter of first instinct, I think that would be attractive,” said Ned Foley, an election law professor at Ohio State University.
“It may help the court out from that perspective, but it may hurt the country,” he added while speaking with Politico.
Foley argued that if the decision is too technical or just puts off dealing with the main issue — which is whether or not Trump is eligible to hold public office again under the Constitution — then it could lead to even more chaos if the Democrats try to use the insurrection argument to prevent Trump from retaking office after he wins the election.
“The time to resolve a disqualification issue is before the ballots are cast, not afterwards,” Foley said.
The “insurrection clause” of the 14th Amendment specifies several jobs that a person who has “engaged in insurrection” after swearing to “support the Constitution” cannot hold. Members of Congress, senators, and the electorate for the presidency and vice president fall under this category.
There is a curious omission of the presidency from the clause’s list of covered positions, but it does prohibit insurrectionists from “any office, civil or military, under the United States” in its catch-all language.
It should come as no surprise that Trump denies any involvement in or promotion of rebellion. However, his legal team has countered that the insurrection clause does not apply to him, so the argument is irrelevant. His legal team cites two grounds: No “office” falls under the purview of the catch-all provision, and Trump’s 2017 presidential oath does not constitute the “support the Constitution” oath referred to in the insurrection clause.
The Supreme Court would avoid the question of whether Trump committed insurrection by tampering with the 2020 election results and fueling the riot on January 6 if it were to accept either of these theories, which would allow him to remain on the ballot.
As noted by Politico:
It’s arguably the cleanest of the Supreme Court’s options. A narrow, technical reading of the clause could get support from both Republican and Democratic appointees, or even potentially unanimous backing. And it would likely be a complete resolution to the 14th Amendment issue because it would preclude efforts to knock Trump off the ballot in other states, and it would shut down post-election challenges to Trump’s eligibility to serve if he won in November.
A ruling that turns on the meaning of “office” or “officer” would be hyper-technical and hard for average voters to understand. Moreover, scholarly consensus seems to favor the president being covered by the amendment, as does common sense. And a decision declaring presidents not to be federal officers could have unintended legal consequences, even for pending civil lawsuits against Trump.
“Such a broad holding could have significant, unwarranted effects on longstanding practices involving several other provisions of the Constitution that use such a term,” said Georgetown University law professor Marty Lederman, who served as the No. 2 in the Justice Department’s Office of Legal Counsel earlier in the Biden administration.
Using similar language, he pointed out that the prohibition on religious tests for federal offices, the prohibition on officials taking so-called emoluments from foreign governments, and the provision allowing the Senate to disqualify impeached officers from future posts are all part of the same bill.
Politico noted: “While there are several variations of this argument, the basic thrust is that the trial that led the Colorado Supreme Court to rule that Trump should be kicked off the ballot didn’t do enough to safeguard Trump’s rights and allow him to contest the allegations that he led an insurrection.”