Trump v. Anderson Why the U.S. Supreme Court Might Resolve the Case Even Though Its Decision Probably Won’t Affect the Colorado Presidential Primary Election Ballot

Balkinization: A User’s Guide to Trump v. Anderson, Part One: Why the U.S. Supreme Court Might Resolve the Case Even Though Its Decision Probably Won’t Affect the Colorado Presidential Primary Election Ballot

Marty Lederman (Georgetown Law)

Early in 2021, overwhelming majorities of both the U.S. House of Representatives (by a vote of 232-197) and the Senate (57-43) determined that Donald Trump engaged in an insurrection on January 6, 2021; that such conduct amounted to “high crimes and misdemeanors”; that Trump’s conduct disqualified him from holding any office under the United States by virtue of Section 3 of the Fourteenth Amendment (which the Article of Impeachment expressly cited); and that Trump accordingly “warrants … disqualification to hold and enjoy any office of honor, trust, or profit under the United States.” 

Of course, that unprecedented bicameral congressional determination did not have any formal legal effect because “convict[ion]” under the Impeachment Clause of Article I, Section 3 requires “the Concurrence of two thirds of the [Senate] Members present,” and the Senate fell short of the necessary 67-vote mark.  Had ten more Senators voted to convict, then the constitutional system would have operated as it was designed, Trump wouldn’t be running for President, and there’d be no Colorado case.

Unfortunately, however, 43 Republican Senators voted not to convict Trump despite his indefensible efforts to undo the election results.  And although a grand jury has charged Trump with several criminal offenses related to those efforts, that indictment does not include an alleged violation of the criminal “insurrection” statute, 18 U.S.C. § 2383, which provides that “[w]hoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto … shall be incapable of holding any office under the United States.”  (Indeed, although DOJ has charged hundreds of individuals in connection with the January 6 attack on the Capitol—some even with “seditious conspiracy” under 18 U.S.C. § 2384—it has not (yet) charged anyone with involvement in an insurrection under section 2383.) 

Despite the fact that neither Congress nor DOJ has yet taken steps sufficient to disqualify Trump from holding federal office, he might nevertheless be constitutionally ineligible to hold any future state or federal office, including the presidency, by virtue of Section 3 of the Fourteenth Amendment, which provides: