The following are notes and comments about Section 3 of the Fourteenth Amendment which is the authority on which the Colorado courts focused when deciding former President Trump’s name should be removed from the ballots in Colorado. The allegation is that Trump is not eligible to hold office because he allegedly engaged in an insurrection against the United State Government on Jan. 6, 2021. The fact that Trump was President of the United States at that time raises the issue of how he could be engaged in Insurrection. when he was the Chief Executive Officer of the military and in charge of the Executive Department’s law enforcement agencies. Nevertheless, the Colorado courts held a five-day trial and argued that Trump received more due process than he used, needed or requested.
Due Process in the Colorado Courts. Nobody apparently argued that Trump was not allowed to present evidence or was denied opportunity to defend his case in the Colorado courts. The U.S. Supreme Court heard oral arguments from Trump’s lawyers and the State of Colorado last week and could announce its ruling at any time. Much of what follows is based on the writings of Law Professor Josh Blackman published at a link provided below.
Is Section 3 Self-Executing? One huge question before SCOTUS is whether Section 3 is self-executing. For a defendant or other litigant to seek affirmative relief in a Collateral Proceeding (the Griffin case discussed below), Congress must provide a cause of action. But Section 3 can be used as a shield in a trial court, or on direct appeal. For various reasons, Trump’s attorney was very tentative in answering questions that various Justices asked him regarding this issue. The issues herein seemed to serve Trump very well at the trial level of the Colorado courts and several Justices seemed to be open to ruling that Section 3 is NOT self-executing.
See Josh Blackman at Volokh Conspiracy.
Defendants in Criminal Cases Raising Fourteenth Amendment Issues as a Defense. Jefferson Davis raised Section 3 as a defense in his criminal prosecution. A defendant can argue that a criminal prosecution violates a provision of the Bill of Rights. And those arguments can be raised at trial, or on direct review.
Griffin’s Case. In Griffin’s Case, Chief Justice Chase (a federal Circuit Court Chief Justice and not Chief Justice of the U.S. Supreme Court as Justice Sotomayor seemed to assume) held that Section 3 could not be used as a sword to seek affirmative relief in a collateral proceeding.
Affirmative Relief & State Court Action. To seek the affirmative relief from a state court conviction that Griffin requested because they, Congress must provide a cause of action or the federal courts must make some additional determination. Such would not be the case were the issues related to state level office holders, state offices or other state matters. But a Presidential election, although in many respects governed by federal and state level rules, is a national matter – as even at least some of the Liberal justices on the Court strongly acknowledged.
Not Self-Executing in Collateral Appeals. Thus, the Fourteenth Amendment could be said NOT to be self-executing in Griffin’s Case, which was a collateral appeal from a state court conviction and not a direct appeal.
Section 3 & Fourteenth Amendment. The case law strongly indicates that the Fourteenth Amendment can be used as a shield in a trial court, on direct appeal or virtually at any other level. The Davis case, arguably a case in which Chief Justice Chase held Section 3 to be “self-executing, is the most relevant example.
Direct Appeal in Davis Case. Jefferson Davis raised a Section 3 defense in his criminal prosecution. Former Confederate President Davis argued that his criminal prosecution violated the Bill of Rights. As stated above, such arguments can be raised at trial, or on direct review. When Griffin, on the other hand, sought to invoke a federal habeas remedy in a federal collateral challenge, months after Chase decided the Davis case, the Chief Justice held that Griffin’s state court conviction should not be vacated. Griffin’s argument for vacating the conviction was that the judge in his case was allegedly a former insurrectionist who sided with the Confederacy during the Civil War. Nobody ever disputed such an obvious contention. If action had been taken at the federal level decreeing that the judge who presided over Griffin’s conviction had been an insurrectionist prior to Griffin’s trial, the outcome might have been different.
Ambiguous or Esoteric? There is a lot of arcane usage in the text of Section 3 of the Fourteenth Amendment. Much of it seems almost unintelligible to lawyers trying to dissect exactly to whom it applies based on today’s understanding of who is an officer and what qualifies as an office. The simplest interpretation of Section 3 is that it states anyone who having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the United States, shall not hold office:
Section 3 Disqualification from Holding Office
“No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.”
Section 3; Fourteenth Amendment
Justice Thomas started out by asking Jonathan Mitchell, counsel for Trump, “You didn’t spend much time on your argument with respect to whether or not Section 3 is self-executing, so would you address that?”
Implementation of Section 3. Mitchell explained that under Griffin’s Case “a state is not allowed to implement or enforce Section 3 of the Fourteenth Amendment unless and until Congress enacts.” The primary issue in the Trump vs Anderson case is whether Section 3 is “self-executing,” or whether some additional action needs to be taken at the federal level; i.e., something additional in the form of congressional action, or an adjudication by the courts to make the Section 3 prohibition on holding office effective.
Did Trump’s Lawyer Fumble the Ball? The Justices tried to get Trump’s attorney to focus on questions regarding the Griffin case and the Davis case, also decided by the same Chief Justice. Both cases were argued very successfully during arguments in the lower courts. Mr. Mitchell briefed the issues which were also addressed more thoroughly in amicus (Friends of the Court) briefs.
Distinguishing Davis from Griffin’s Case. Notwithstanding the self-evident fact that Jefferson Davis led the rebellion against the United States as President of the Confederacy, Chief Justice Chase ruled the case against Davis should be dismissed. Although not explicitly stated in the case (there is some question about the actual text of Chase’s decision because of variations in the reports and the vagaries of how decisions were reported back in those days), the Circuit Court Chief Justice (Chase) ruled Jefferson Davis could assert Section 3 of the Fourteenth amendment as a shield against a state court prosecution.
Federal Preemption & the Supremacy Cause. It can be inferred that the reason Chase protected Jefferson Davis from a state court prosecution accusing Davis of insurrection against the United States was because Chase deemed the Section 3 prohibition against holding federal office as preempting other penalties such as the state court prosecution against Jefferson Davis. Had there already existed a statute, or some other enactment of Congress or had the federal courts provided other remedies apart from Section 3, the Section 3 provisions would thereby have become effective. Therefore, the characterization of Section 3 as being “self-executing” in the Davis case is probably accurate. Nevertheless, views attributed to Chief Justice Chase in the Davis case, allegedly grounded in a statement added to the case report much later by an alleged Confederate sympathizer, most probably were not in the original decision as announced orally by the Chief Justice.
Defensive Use of Fourteenth Amendment. The best theory is that the Fourteenth Amendment (including but not limited to Section 3) can be asserted as a defense (a shield) in a direct appeal from a state court prosecution. No further action is needed at the federal level. No further federal action is necessary because argument based on the U.S. Constitution can be asserted at any level of the case, including when a defendant asserts it in the trial court.
Fourteenth Amendment Protects Citizens Against the States. At this point, it’s important to understand that the reason the constitution applies to the states is by virtue of the Fourteenth Amendment. Congress enacted the Fourteenth Amendment in order to curtail the power of the Southern states that continued to subjugate newly freed Black people and violate their unalienable rights. Section 3 was added to the Fourteenth Amendment in order to prevent state and federal officer holders from conspiring to raise another insurrection against the United States government.
Facts in Griffin’s Case. The Griffin case dealt with a state court prosecution in which the Petitioner-Defendant had already been convicted of crimes and was arguing that the judge who had presided over his trial was a Confederate insurrectionist who had aided and abetted the South. The argument was that the state court judge did not have authority to convict or sentence the defendant, who was already on his way to prison when a Writ of Habeas Corpus issued, bringing him before the Federal Circuit Court of Appeals and Chief Justice Chase.
Collateral Appeals. Therefore, in a collateral attack, as opposed to a direct appeal, Section 3 is NOT self-executing. 42 USC 1983 is sometimes called the Ku Klux Klan Act because it creates a federal cause of action for violations of federal civil rights. State court causes of action for violation of federal civil rights exist due to the text of federal statutes enacted by Congress. Statutes like 42 USC 1983 effectuate the Fourteenth Amendment, thus acting like a sword, as opposed to a shield. The sword is in the hands of a plaintiff seeking a remedy for his or her federal civil rights, by virtue of a statutory act of Congress or some other Congressional action like conviction in an impeachment proceeding.
Sword & Shield Theory. In a situation where a party seeks to enforce the Fourteenth Amendment as a sword to make claims against the opposing party, there is no need for a state court to seek a determination at the federal level that certain facts exist. Congress has already enacted statutes like 42 USC 1983, and others, authorizing federal courts and state courts to litigate civil rights claims. Trump’s appeal, on the other hand, is a direct appeal on a federal question stemming from Colorado taking matters into it’s own hands, possibly in order to obtain a ruling from SCOTUS.
Off Ramp To Hell. The State of Colorado is deploying Section 3 more like a sword against Trump, while Trump, on the other hand, is defending against extraordinary efforts to keep him off the ballot. The possibility that the Court could rule against Trump as an insurrectionist would be extremely remote even without the Conservative composition of the Court. The Court would certainly find an “off ramp” because the nation is being torn apart by political chaos and it is important to dial down the passions. Expect to see maximum fury next week if the court takes up former President Trump’s emergency appeal thereby almost certainly delaying a trial, if any, until after the November election.
Unanimous Opinion With Various Nuanced Concurrences? The most likely decision in which all the justices may be likely to join, albeit with various concurring opinions, is that Colorado and other states have created a situation that verges on chaos if SCOTUS permits the states to remove Trump’s name from the balloting. The Griffin case has stood for so long and been cited with historical approval so many times by so many judges that it is regarded as “liquidated” case law; i.e., stare decisis on steroids, according to one law professor’s characterization.
Insurrection Act. Thus, Colorado and other states can only decide that Trump will not be on the ballot if Trump is convicted under the Insurrection Act in federal court (he has never been charged with insurrection) — or Congress deems him to be an insurrectionist. Arguably, had Trump been convicted in the 2021 impeachment proceedings, the conviction might have triggered Section 3.
What Comes Next? It is unlikely that under the existing balance of power in Congress that Congress will enact statutes authorizing states to make legal determinations triggering Section 3. SCOTUS will probably decide this week whether to rule on President Trump‘s emergency appeal regarding the question of whether or not he’s immune from prosecution under the Presidential Immunity clause. If the Court accepts Trump’s appeal on an emergency basis, it may take until 2025 before the Immunity issue is resolved.
Disqualification Issues Hanging Fire. Therefore, it could remain an open question as to whether former President Trump is eligible to hold office even at the time of the 2024 election! This is because Section 3 could come up again regarding Presidential Immunity and could still be pending after the election in November. The fact that the same issues could still be pending in 2025 raises the issue of WHY OR WHY NOT the U.S. Supreme Court might hesitate to decide the immunity issue in the near future.
Some scholars suggested immunity from arrest and criminal prosecution. There is no express Constitutional provision that confers immunity on a president. Immunity has become the practice of the Department of Justice per memoranda previously written by the Office of Legal Counsel.
November, 2024. Whether Trump will be tried before the November, 2024 election or retakes the White House brings up another issue. Section 3 is ambiguous as to whether or not the presidency is an “Office” and whether or not the president is an “officer” under the Fourteenth Amendment. Lots of discussion is likely to appear in the Court’s upcoming decision. But those are other issues that Jonathan Mitchell, Trump’s Counsel, mostly avoided despite lots of enthusiastic encouragement from the bench. Lots of talking heads are now commenting about the Court seeking an “off ramp.” But it seemed like Mr. Mitchell wanted an off ramp. Trump is likely to prevail despite a few of his Counsel’s arguments that sounded like he was arguing for the State of Colorado!
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