Former President Donald Trump faces indirect challenges in two states to keep him from appearing on the 2024 presidential ballot. The prosecution argues that, according to the 14th Amendment, his actions on and around January 6, 2021, disqualify him from holding or running for office again. Make no mistake, if either of these trials in Minnesota or Colorado are successful, the efforts will spread nationwide. But is this interpretation of America’s founding document valid? And what are the broader ramifications?
We spoke with Liberty Nation Legal Affairs Editor Scott D. Cosenza, Esq. – a constitutional attorney – to fathom whether the case against Trump holds water and what his accusers hope to achieve.
What Does the 14th Amendment Mean for Trump?
Mark Angelides: Scott, could you start by giving us a brief overview of the relevant section of the 14th Amendment that is being argued in these two cases?
Scott D. Cosenza: Section 3 of the 14th Amendment prohibits anyone from holding office in the United States if they previously swore an oath to uphold the Constitution and then later “engaged in insurrection or rebellion” against the Constitution. Passed in the wake of the Civil War, this Amendment was designed to punish those disloyal to the Union.
Today, the issues for courts considering these cases are whether Trump was an insurrectionist and if the President of the United States is included in who is covered by the Amendment as an “officer of the United States.”
MA: It seems to me that this is just an extension of Democrat operatives trying to keep President Joe Biden’s chief competitor off the ballot. I tuned in to the Colorado case and saw California Democrat Rep. Eric Swalwell speaking in court (via video). Am I way off base in considering this more a 2024 play than a pearl-clutching attempt to redress a perceived wrong?
SDC: Mr. Swalwell has multiple conflicts of interest in this case. Swalwell ran for president in the last election and has a massive political interest in seeing Mr. Trump lose his ballot access. A lesser-known fact is that Swalwell is suing Donald Trump in a DC federal court for personal injury damages he suffered at the Capitol riot on January 6. Trump’s lawyer evoked testimony from the California congressman that he would benefit financially in the DC case if the Colorado judge declared Trump an insurrectionist.
MA: Let’s talk briefly about who’s behind these first two suits and who’s picking up the almost undoubtedly huge tab for them.
SDC: Groups leading the charge on some of these efforts have and will continue to benefit via contributions and other support, Mark. Funding legal wranglings to keep Trump off the ballot offers a twofer for the Trump Derangement Syndrome sufferers. Their contribution will be used to damage Trump’s chances for office but don’t generally count as political contributions. A nice trick is allowing money to pour into these efforts that may otherwise be forbidden under the law and Federal Election Commission rules.
MA: Because this is a funding appeal for legal action, does that mean there are technically no limits on how much one individual can donate – and with anonymity, I might add? So, theoretically, Joe Biden could send a million dollars to this without restrictions or restraint?
SDC: Political contributions are strictly regulated. Other spending that may benefit a candidate that isn’t a contribution to a candidate or committee is not a part of the regulations.
MA: Scott, you’re a constitutional lawyer by training. What’s your take on the argument’s validity, and where do you think it falls short of what is claimed in the suits?
SDC: Nothing is approaching persuasive evidence that Donald Trump is guilty of insurrection against the Constitution. For instance, Trump’s words to his supporters to “fight” for him are identical to and, in some cases, even less strident than Swalwell’s own. It’s hard to understand how a judge could rule Trump is an insurrectionist without damning just about every politician out there.
MA: If this goes badly for Trump, it will almost certainly end up in a higher court, right? And presumably, that will happen with some haste as we are fast approaching the election year, won’t it?
SDC: Yes, and I don’t think it’s too wild to predict the Supreme Court is where any state will wind up if they try to keep him off the ballot. I expect the Court will respond promptly to Trump’s legal requests.
MA: If they are ultimately successful in keeping Trump off the ballots in these states, he can’t possibly win, can he? Absent a Reaganesque blowout in the rest of the country, the electoral college vote threshold will become too high.
SDC: Agreed, Mark – his path to victory becomes a dead end if he loses these cases.
MA: While it seems to me, admittedly a layman, that there’s no way reasonable people can look at the evidence and conclude that Trump should be barred from the ballot based on what the 14th Amendment says, I wonder how this trial will go because there is no jury here. It’s all decided by a judge. What does this mean, and does it impact Donald Trump’s chances of success?
SDC: Our republic cannot abide a judiciary that functions like party advocates. A Democrat appointed Colorado Judge Sarah Wallace to her position on the bench. It’s a fair assumption she does not support Trump’s presidential aspirations. And yet, one hopes that she can apply the law dispassionately. Despite the many examples that are exceptions to the rule, I think it’s still true that judges are better suited to address such questions free from emotion, politics, and concerns outside the rule of law. The country depends on it.