December 23, 2023
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The five-day bench trial that found Donald Trump “guilty” of engaging in insurrection saw hours of testimony from so-called 14th Amendment subject matter experts, most notably the petitioners’ witness, Gerard Magliocca. In fact, having rejected or greatly discounted the testimony from other subject matter experts, Denver District Judge Sarah Wallace based her ruling largely on Magliocca’s testimony. Although Judge Wallace ultimately ruled that Section 3 of the 14th Amendment was not applicable to the Presidency, her finding that President Trump engaged in insurrection according to Section 3, and Magliocca’s testimony during the November trial, can account for the majority decision of the Colorado Supreme Court’s ruling to remove President Trump from the 2024 presidential primary race. Setting aside the automatic stay that the Colorado Supreme Court Justices applied to their ruling, there are problems with the bases of their decision that stem from the November trial.
Less than three weeks after the January 6 event that precipitated all of this, Gerard Magliocca was interviewed by CBS News. He was interviewed because of his 14th Amendment expertise and legal scholars and some legislators in the US were already wondering how political partisans would use Section 3 in the 2024 election cycle. Magliocca’s interview in 2021 is vastly different than his testimony before Judge Wallace. In fact, had he made the same statements in Judge Wallace’s courtroom as he did to CBS, it is questionable whether that judge, and subsequently the Colorado Supreme Court, would have made the same decisions.
Section 3 has little history behind it beyond its application in the wake of the Civil War as a way to punish and coerce fealty from former Confederates. Magliocca himself even said “nobody then gave any thought to what other insurrections look like,” meaning that the framers of the 14th Amendment “knew the insurrection meant the Confederacy.” Applying Section 3 insurrection to a situation that doesn’t involve the Civil War “would be something done for the first time, and it would be challenging.” But most telling is Magliocca’s hypothetical process for a means to apply section 3 in a post-Reconstruction America. He told CBS that “lawmakers would first make findings of fact about the events of January 6, followed by a declaration of their opinion on whether Mr. Trump engaged in insurrection and is ineligible to hold public office again, potentially through a concurrent resolution. Then, in a federal statute, lawmakers would lay out the procedure for Section 3 claims to be tested.” This is a big deal. The expert testimony upon which two courts based their rulings clearly describes a legislative process that must precede a judicial process. In other words, there is no clearly defined meaning of Section 3 in order to apply it correctly, effectively, or justly: “There’s no enforcement mechanism for this right now, for Section 3…So somewhere in there has to be an act of Congress to create enforcement authority and a process.” It’s up to Congress to pass legislation to prescribe the meaning behind Section 3 and a process to enforce it. Even the petitioners’ own expert did not envision or endorse a purely judicial process—a five day bench trial—to establish a Section 3 precedent. Both the 14th Amendment and Magliocca’s 2021 interview clearly assign authority and responsibility to Congress as regards the 14th Amendment and Section 3 in particular. This was not ever supposed to be the domain of the judiciary; it falls on Congress to answer this question and provide a clear pathway to applying and enforcing Section 3.1
One has to wonder why none of this came out during Magliocca’s testimony. Judge Wallace (and presumably the Colorado Supreme Court) seemed to feel that Magliocca spelled out a very clear-cut rationale as to why President Trump committed insurrection and why Section 3 was self-executing. There have been no substantive Constitutional and/or legal changes between his January 2021 interview and his mid-November 2023 testimony to account for such a different point of view. What has developed, however, is a clear and urgent need to torpedo the obvious leader in the Republican polls.
One Way to Avoid a Constitutional Crisis
We should be very troubled by the fact that the judiciary’s go-to solution in a murky-at-best question regarding an election is to remove a candidate from the ballot. If the petitioners’ cry is that they are disenfranchised by placing Trump on the ballot, how is unceremoniously removing him from the ballot not the same thing? In normal times this would be left to the electorate. In the absence of clear legislation to inform the decision, this should absolutely be left to the electorate. It would be far more prudent for the judiciary to call upon Congress to pass legislation that a court could actually rule on rather than the courts using their ideological sensibilities to write laws from the bench. Denying people a vote and publicly punishing and shaming President Trump is bombastic, but sober, evenhanded justice seldomly gets notoriety. And if it is notoriety the petitioners and courts were after, their heavy-handed, authoritarian application of a partisan interpretation of an obscure, archaic provision of law has indeed earned them that.
Another Way to Avoid a Constitutional Crisis
The courts also missed (or ignored) another means to resolve matters of presidential qualifications: The 20th Amendment. Specifically Section 3 of the 20th Amendment which seems to offer the remedy to the problem presented by the petitioners:
…if the President-elect shall have failed to qualify, then the Vice President-elect shall
act as President…
In other words, if Congress determines that President Trump is not qualified to serve as President, they can refuse to seat him in that office and seat his running mate instead. So, even if President Trump clears all the hurdles to become elected (primary races, conventions, and the dubiousness of a general election) the Congress still has the final say as to determining his qualifications, and that is what the case against him alleges: That he is not qualified because of Section 3 of the 14th Amendment. There is no way to rationalize or excuse rogue secretaries of state, disgruntled and disaffected petitioners, or activist judges legislating from the bench and interfering in an election. The 20th Amendment is the legitimate mechanism for preventing a Constitutional crisis.
Having determined that Section 3 of the 14th Amendment did not apply to the presidency, the issue of ballot access is moot and the trial judge should have left the issue of insurrection alone. Reminds me of how the US Supreme Court mucked up the Dred Scott decision.
I also note that the party's nominee is not determined by the presidential primary. In Colorado, it simply determines the number of delegates a candidate gets for the national convention, a convention that is not limited to nominations but also determines other issues such as the platform. Voters should not be denied the opportunity to send Trumpy candidates to the convention even if Trump could eventually be determined ineligible for office.
Finally, the idea of Congress determining the winner of an election to be ineligible smack of an unconstitutional bill of attainder. If Congress wants to legislate on the 14th Amendment, it should do that specifying enforcement procedures and due process before the election and before the campaign. Let's leave the selection of electors and how they vote to the states where it belongs.