Let me briefly address this Colorado disqualification issue. Does it apply and should it apply to ex-President Donald Trump, disqualifying him from serving again as President?
Before delving into the constitutional text, let’s discuss how we should think about this issue, because there’s a lot going on here besides the plain text of the 14th Amendment. Criticisms that I hear are that barring Trump from the ballot is simply undemocratic. Trump has many supporters and they should be allowed to vote for him. At least in the abstract, good point. Another is that attempting to disqualify Trump and barring him from the ballot may actually help him, allowing him to play the victim and, perversely, to wear the mantle of democratic legitimacy.
For myself, I’m equivocal about the whole idea. Trump is going to win or lose the old-fashioned way — based on the votes. I have no time to be distracted by strategies to short circuit that electoral reckoning. I’m not totally sure the disqualification provision applies to his set of facts. I have some small questions about whether this passage applies to presidents. I have bigger questions about whether the passage’s “insurrection” matches Trump’s insurrection. But I’m not the one bringing the lawsuits to disqualify him. So I don’t need to make that decision. My approach — and the one I would recommend to anyone interested in my opinion — is one of open-minded disinterest.
I don’t buy the idea that litigating this question is going to give Trump some perverse advantage. That’s twelve-dimensional chess hokum. We shouldn’t go down the rabbit hole of trying to ferret out how things that are on their face bad for Trump may by some twelfth-order reasoning actually be good for him. The merits of any argument are almost secondary. That whole thought process amounts to being afraid of your own shadow, a kind of intellectualized or sublimated timidity. Judgment, good; timidity, bad.
Whatever complaints Trump or anyone else might have about this, it’s the logical and inevitable result of trying to overthrow the United States government. Don’t want the hassle? Don’t try to overthrow the state. In other words, he brought it on himself. His problem, not ours.
While I’m confident the Supreme Court will decide the question in Trump’s favor, I see nothing but positive things coming from the Court being forced to review or render some judgement, if not a verdict, about what happened on January 6th, 2021. The Court could simply rule that the decision is Colorado’s to make, thus leaving the disqualification in place while ignoring most of the substantive questions (highly doubtful). It could decide that the language doesn’t apply to the presidency, thus ducking the big issue of what happened on January 6th. That also seems unlikely.
On the merits, as I said, I’m equivocal, leaning toward skeptical. But I cannot get past the fact that the plain language of the amendment seems to speak directly to Donald Trump’s actions and say he is disqualified from serving as President. That isn’t the final word on it. There are real questions about its applicability that I noted above. But this isn’t some wild constructive theory, a technicality, a platinum coin version of constitutional jurisprudence. At a minimum it’s a hurdle you earn when you try to overthrow the government. He did that. We watched it happen.
I look forward to seeing how it shakes out. It’s no bad thing to have this Court put on the spot and tell us just what they think happened on January 6th 2021.