Only a month has passed since the U.S. Supreme Court agreed to hear, on an expedited basis, a legal challenge to the Colorado Supreme Court’s determination that Donald J. Trump is disqualified from holding any state or federal office by reason of §3 of the 14th Amendment.
Both the CO trial and state Supreme Court expressly found that Trump “engaged in” an “insurrection” on January 6, 2021. The CO Supremes ordered Trump’s name removed from the Centennial State’s Republican presidential primary ballot. However, the CO Supreme Court stayed their order pending the outcome of a final determination by SCOTUS.
A final SCOTUS decision will likely have profound electoral and constitutional impacts, irrespective of whether our nation’s highest court upholds or overturns the CO Supreme Court’s ruling…
In addition to receiving briefs on the merits of the case from the parties involved, the High Court has received no less than fifty (50) amicus curiae (friend of the court) briefs during the short time since SCOTUS accepted the petition to review the matter.
The extraordinary number of amici briefs — not to mention the impressive array of expertise embodied in them — underscores the enormity of the decision now before the Court. It also accentuates the solemnity of the oral arguments that will commence this week on February 8 at 10am Eastern. This was underscored by the 50th amicus brief that Harvard Law Prof. Laurence Tribe described as “masterful”, J. Michael Luttig, the very well respected and conservative former U.S. 4th Circuit Court of Appeals Judge not only urged a finding that Trump is disqualified from the ballot, but also argued that the High Court must offer a definitive ruling on the matter. “The Constitution confers the judicial power to adjudicate presidential qualifications first on the state officials and courts designated by state law, and ultimately on the Supreme Court”. He noted that “under the Supremacy Clause, the Supreme Court’s ruling [will be] binding in all 50 States.”
If, as urged by Judge Luttig — and that’s a big IF — SCOTUS upholds the findings by the Colorado courts that Trump “engaged in insurrection” and is therefore “disqualified” by reason of the 14th Amendment’s §3, the 45th President would be barred from further re-litigating his eligibility under the doctrine of collateral estoppel.
One group of law professors and legal scholars, in an amicus brief filed “in support of neither party”, stressed that if the “Court decides by June 2024 that Mr. Trump is not eligible, then the delegates to the Republican National Convention will have an opportunity to select a different nominee.”
Legally, that’s accurate, but finality of a SCOTUS disqualification decision does not eliminate the possibility of defiance. Just as Texas Governor Greg Abbott is arguably acting in defiance of a recent SCOTUS order to allow U.S. Border Patrol agents access to the US/Mexico border so those agents can carry out functions that are mandated by federal statutes, so too, there’s a possibility that Trump and MAGA Cult delegates at the Party’s July convention could simply attempt to defy a SCOTUS disqualification decision. If that happens, the Republican National Convention could descend into chaos that could both cripple GOP chances at the polls and/or create a temporary period of disorder in the streets that would require heightened security, especially at the polls and at locations where votes will be tabulated in November.
A final SCOTUS determination that Trump is disqualified could also alter the dynamics of the four state and federal felony cases where the former President is facing 91-criminal charges. Disqualification would defeat Trump’s core strategy to delay those cases until after the election. “If he wins the presidency”, The New York Times observed, “he could order the charges…dropped.”
A SCOTUS determination that Trump is disqualified, of course, would enhance the core principle that “no one is above the law”.
Ernest A. Canning is a retired attorney, author, and Vietnam Veteran (4th Infantry, Central Highlands 1968). He previously served as a Senior Advisor to Veterans For Bernie. Canning has been a member of the California state bar since 1977. In addition to a juris doctor, he has received both undergraduate and graduate degrees in political science. Follow him on twitter: @cann4ing
In their brief, a group of legal scholars noted that a ruling that DJT is disqualified by June would permit delegates to the Republican National Convention to select a different, qualified candidate.
I noted the potential for defiance that could lead to chaos. The potential for defiance has now been enhanced by Donald Trump’s effort to seize control of the RNC.