Harvard legal scholar Laurence Tribe blasts “preposterous” Trump exemption in “insurrection” ruling

Donald Trump Michael Gonzalez/Getty Images
Donald Trump Michael Gonzalez/Getty Images
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A Colorado judge ruled that Donald Trump engaged in insurrection during the January 6, 2021, assault on the U.S. Capitol, but decided that this would not prevent the former president from appearing on the state's primary ballot.

The lawsuit, which was brought by watchdog group Citizens for Responsibility and Ethics in Washington on behalf of a group of Republican and independent voters, sought to disqualify Trump from Colorado’s 2024 ballot under the 14th Amendment’s “insurrection clause.” The plaintiffs argued that Trump is ineligible to hold office again under Section 3 of the 14th Amendment, which disqualifies anyone who “engaged in insurrection or rebellion” against the Constitution.

While Denver District Judge Sarah Wallace found that Trump “acted with the specific intent to disrupt the Electoral College certification of President Biden’s electoral victory through unlawful means,” and found that “Trump incited an insurrection on January 6, 2021,” she ruled his efforts wouldn’t keep him off the state’s primary ballot.

Wallace determined that Section 3 does not apply to Trump because, although it mentions individuals who are an "officer of the United States," it does not explicitly include the presidency. Instead, the clause refers to “elector of President and Vice President,” along with civil and military offices.

The judge wrote those who wrote Section 3 “did not intend to include the President as ‘an officer of the United States’” although she acknowledged that the amendment’s provision technically applied to those who swear an oath to “support” the Constitution. Notably, the oath Trump took after his election in 2016 was to "preserve, protect, and defend" the Constitution, The Washington Post reported.

“Section 3 by its terms covers every ‘Senator or Representative in Congress, or elector of President and Vice President,’ and ‘any office, civil or military, under the United States,’” longtime Harvard constitutional law scholar Laurence Tribe told Salon. “In my view, and that of nearly every other expert in this field, ‘any’ means ANY, and there is no genuine ambiguity about the presidency being an ‘office . . . under the United States,’ as the Constitution elsewhere makes clear and as Mr. Trump has himself conceded in other courts on other occasions.”

So there is no “genuine ambiguity,” but instead an opportunity for lawyers to “make mischief” by “exploiting” the oversight of the Fourteenth Amendment's authors who assumed certain principles would be universally understood, he argued.

“As Judge Wallace herself conceded in footnote 18 of her opinion, excluding the president would seem to be ‘preposterous,’” Tribe said. “The reason it would seem preposterous is that is exactly that. To exempt the one office that most clearly needs to be included if the Constitution is to be protected against attempted insurrections and rebellions by those with the potential to succeed is, of course, the highest office in the land and the one in which the greatest power is reposed.”

Wallace issued the ruling a week and a half after the Minnesota Supreme Court ruled Trump could not be removed from the primary ballot in that state. In Michigan, a judge arrived at a similar conclusion just three days prior to Wallace's ruling.

CREW celebrated the ruling for determining Trump incited the insurrection and said they would appeal to the Colorado Supreme Court.

“The court’s decision affirms what our clients alleged in this lawsuit: that Donald Trump engaged in insurrection based on his role in January 6th,” CREW President Noah Bookbinder said in a statement. “We are proud to have brought this historic case and know we are right on the facts and right on the law.”

If the Colorado Supreme Court agrees with the insurrection aspect but disagrees with the trial court's exception for the presidency, Trump may be removed from the Colorado primary ballot unless he persuades the U.S. Supreme Court to grant discretionary review, or “certiorari,” which it would likely do, Tribe explained.

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“Whichever way the U.S. Supreme Court rules will set a national precedent binding throughout the country,” Tribe said. “If, on the other hand, the Colorado Supreme Court upholds the trial court’s exemption of the presidency, then the U.S. Supreme Court is likely to disregard whatever the Colorado Supreme Court says about the trial court’s ruling as to insurrection because any such statement by the highest court of Colorado won’t affect its bottom line if it ends up agreeing with the somewhat bizarre ruling of the trial court that Mr. Trump gets an exemption from the Disqualification Clause on the theory that the presidency isn’t an ‘office under the United States’ or that, if it is, the slightly different wording of the presidential oath takes it outside the ambit of the Disqualification Clause, an equally preposterous supposition.”

The recent ruling by the Colorado district court is the “first fully reasoned judicial examination” of the Disqualification Clause, exploring its meaning and scope, he added. It delves into whether Trump violated his oath to the Constitution by inciting a “violent insurrection,” and did so in a way that was not protected by the First Amendment.

“[The ruling] is bound to reshape the broader conversation around the legal consequences not just of the events of January 6 but of the entire plot to overturn the election’s lawful results, a plot that is central both to the four-count federal indictment of Mr. Trump in DC and the multi-count RICO indictment of Mr. Trump and numerous co-conspirators in Atlanta,” Tribe said.