Supreme Conundrum: High Court to Decide Trump's Eligibility for Any Public Office.

In a month, the U.S. Supreme Court will take up the case of Donald Trump's disqualification for holding any public office under Section 3 of the 14^th Amendment to the Constitution of the United States. This provision disqualifies anyone from holding public office who has participated in an insurrection or given aid or comfort to insurrectionists. The Colorado Supreme Court has found that Section 3 of the 14^th Amendment disqualified Donald Trump from appearing on the state's primary ballot. Without question, the Supremes will be deciding the most critical case in the nation's history.

To many, this case before the nation's highest court will seem uncomplicated and easy to decide. To many others, the ramifications of the case are far more riveting than the facts of the case. Indeed, the consequences of finding that Donald Trump either engaged in an insurrection or gave aid or comfort to those who did seem too draconian to contemplate. Nonetheless, the Supremes have no responsibility other than to contemplate. That is their job. That is their only job.

That there was a violent riot on January 6, 2021, the purpose of which was to stop the peaceful transfer of power as mandated by The Constitution of the United States, shouldn't be subject to debate. The world watched the violence at the Capitol in real-time. Nonetheless, there will be plenty of debate about whether the melee at the Capitol constituted an insurrection or just a deadly dust-off between people defending the Capitol and those who came at Donald Trump's urging to stop the ceremonial counting of ballots.

On the eve of the attempted insurrection, Trump confidant Steve Bannon broadcast the news that what was going to go down on January 6, 2021, would not be what anyone expected. "Buckle up, it's not going to happen like you think," he advised his followers, just as Trump had advised his minions when he exhorted them to come to Washington on January 6 because it was "going to be wild."

That an attempted violent insurrection took place on January 6, 2021, has been well established. Many police officers were brutalized as they defended the Capitol, and the ceremonial counting of ballots was abandoned for several hours. The marauders occupied the legislative chambers and rummaged through and vandalized congressional offices. People died as a result of the violence. The only real question is whether or not Donald Trump had anything to do with the violence that day. One can choose to believe that Donald Trump had nothing to do with the events at the Capitol, or one can choose to believe their own eyes and ears, which saw and heard the former President exhort the crowd to fight like hell, or they wouldn't have a country anymore. And fight like hell they did.

Former President Trump will, no doubt, claim he tucked in the word "peacefully" when exhorting the crowd to march on the Capitol, but his hour and sixteen-minute rant to the crowd to go to the Capitol and fight like hell speaks for itself. That he shared the podium with other agitators, including Rudy Giuliani, who called for trial by combat, merely adds to the insurrectionist fervor of the rally.

According to Cassidy Hutchinson, a former White House aide who was backstage at the rally at the ellipse, when Secret Service warned the President that protesters were carrying weapons, he responded, “I don’t fucking care that they have weapons, they’re not here to hurt me. Take the fucking mags (magnetometers) away. Let my people in. They can march to the Capitol from here, let the people in, and take the mags away.”

One might assume that the Supremes will be reluctant to find that the former President engaged in insurrection or gave aid and comfort to those who did, given the unprecedented ramifications of such a finding. Still, they will have to engage in rather absurd gymnastics to conclude otherwise. The entire spectacle on the ellipse on that dark day, from Rudy Giuliani's call for "trial by combat" to Trump's "fight like hell," was a sad but historic call to force a halt to the counting of ballots at the Capitol. They were determined to stop the peaceful transfer of power.

Those whom Trump sent to the Capitol and urged to fight like hell did precisely what he asked them to do. In addition to Section 3 of the 14th amendment, Section 2383 of the U.S. Criminal Code (Rebellion or Insurrection) states that "Whoever 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 to it, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States."

J. Michael Luttig, a staunch conservative and former U.S. Court of Appeals for the Fourth Circuit judge, referred to the Colorado Supreme Court decision that disqualified Trump from appearing on the Colorado primary ballot as unassailable in every respect. He called the Colorado high court's 120-page judgment a masterful judicial opinion.

Liberal law scholar Professor Laurence Tribe agrees, "The people who wrote the 14th Amendment were not fools. They realized that if people who tried to overturn the country and tried to get rid of our peaceful transitions of power are again put in power, that would be the end of the nation, the end of democracy."

Two members of the conservative Federalist Society, Professors William Baude and Michael Stokes, wrote in the University of Pennsylvania Law Review, "In our view, on the basis of the public record, former President Donald J. Trump is constitutionally disqualified from again being President (or holding any other covered office) because of his role in the attempted overthrow of the 2020 election and the events leading to the January 6 attack…The case for disqualification is strong."

To be sure, some prominent legal scholars disagree. Harvard Law professor Lawrence Lessig writes "that while electing Donald Trump to a second term of office would be catastrophic, removing him from the ballot based on a forgotten snippet of the 14th Amendment would be catastrophic as well. Trump's actual intent on January 6 could not qualify as insurrection or rebellion. His aim, I believe, was to get Congress to send the decision back to the states."

The Colorado Supreme Court decision disqualifying Trump from appearing on Colorado's primary ballot has severe ramifications, but a decision by the U.S. Supreme Court to vacate the Colorado high court's ruling would also have draconian implications, given the license such a decision would provide to other politicians to engage in similar abuses in future elections.

Donald Trump's behavior on January 6, 2021, was irresponsible and dangerous. Many people were hurt, and some died. A constitutionally mandated procedure was almost aborted because of Donald Trump's exhortations, which were unprecedented in the entire history of the United States. The courts have found hundreds who participated in the insurrection to be guilty, and scores have been sentenced to prison for their violent behavior. Many said they were sent to the Capitol by former President Trump to stop the counting of ballots.

Determining that an attempted insurrection occurred on January 6, 2021, will not be difficult. Determining who was responsible for the attempted insurrection should also not be difficult.

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Please consider our Of Thee I Sing 1776 Premium option. While my weekly column is always free, for just $5/month, you’ll also receive my annual ebook, “Essays For Our Time,” and my new Podcasts.

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