On the 20th day of January, 2025, the next US President will take oath of office at an inauguration ceremony at the Capitol in Washington. While the race to the White house is heating up, former President Donald Trump, the Republican frontrunner, is facing tough legal challenges to remain in the ring. Few American Presidents’ have been as controversial as him. Yet, he never fails to outwit and outsmart all his competitors .

While Trump is almost certain to win the Republican nomination, court cases against him are closing in and the timing couldn't have been worse. Soon to begin is , 'Trump versus Anderson' in the US Supreme Court, a case that challenges a ruling from the Colorado Supreme Court, disqualifying him by virtue of Section 3 of the 14th Amendment and the outcome of the case may make or mar his chances of becoming President. This week the US Supreme Court will begin to hear arguments on ‘insurrection’ at Capital Hill, Trump’s alleged role in it and whether he can run for President in 2024. To give a brief summary , three years ago, on January 6, 2021, a mob of mostly white men stormed the Capital after attending the, “stop the steal” Trump rally. Five people died that day and at least 140 were badly injured in the riots. As a legal professional matters of court interest me and I gave in to the temptation of writing something on this.

What’s the debate about?

Will Donald Trump be barred from running for President under a provision of the 14th Amendment that forbids officials from holding office if they have been part of an “insurrection” against the United States of America? The US Supreme Court will deliberate on this novel question of law when the matter gets underway . So what does the word,” insurrection” mean? Legal expert, Hawa Allan, attorney, author and contributor for the ‘TIME’ Magazine’s online portal explains that,” by definition it is “a violent uprising against an authority or government.” The Court will need to decide if everything that happened on January 6, 2021 falls within the ambit of this definition. Does an attack on the Capitol count as an act of insurrection and whether the amendment covers Presidents or it applies to lesser federal officers of the US government. Did former President Trump aid or abet the rebellion at Capitol Hill ?

Call it an irony of sorts but the day when arguments formally begin in the US Supreme Court he will be facing the Nevada caucuses, which he is expected to win advancing his chances of getting the Republican nomination. However, an appeal against the ruling of the Supreme Court of Colorado against his alleged role in the Capitol riots and a litany of other cases are playing spoilers in an election year. The Colorado case requires the US Supreme Court to decide on the most basic question of the validity of Trump’s name on the primary ballot papers of the State of Colorado and the court will presently be weighing in on only this moot issue as of now. On 19th December , 2023, the Supreme Court of Colorado had disqualified Trump stating that he is “ineligible to be President again in 2024” because he engaged in an insurrection on basis of the 14th Amendment which includes a Clause disqualifying people who violated their oaths of office from holding government positions in the future.

Overview Of The 14TH Amendment & The Disqualification Clause

The 14th Amendment was adopted in 1868 as part of the post-Civil war Reconstruction era. It dealt with the problem of former Confederates holding positions of power in the government and its 3rd Section disqualifies former government officials who have betrayed their oaths while holding office. [https://bit.ly/3UImqcj] Specifically, the Clause says that people shall become ineligible to hold any federal or State office if they take an oath to uphold the Constitution in one of the various government roles, including as an “officer of the United States”, but thereafter engage in insurrection or rebellion against the United States or aide its enemies. The Clause also mentions that a supermajority vote in Congress could waive such a penalty.

Is the US President an ‘officer of the United States’ ?

Donald Trump was a unique President. He never held any public office before becoming President. And the only time he swore on oath to the Constitution was when he was elected as President of United States. That raises a basic question whether the disqualification clause covers the oath that he took. Ordinarily, the US President is an ‘officer of the United States’, but there is a dispute whether it includes Presidents as officers in a Constitutional term. In 2021, two legal scholars, Josh Blackman of the South Texas College of Law, Houston and Seth Barret Tillman of the National University of Ireland, Maynooth, published a law review article about the said clause arguing on ‘textualist’ and ‘originalist’ grounds that a US President does not count as an officer of the United States. Among other issues, they focused on the language about “officers’ in the original constitution as ratified in 1788 - including the language about oaths that can be read as distinguishing between appointed executive branch officers from elected Presidents. [ https://bit.ly/42m2z4l ]

Contrary to the interpretation of these legal scholars two others William Baude of the University of Chicago and Michael Stokes Paulsen of the University of St. Thomas reasoned differently. In their 126 pages of legal analysis they concluded that Trump is ineligible for the Presidency. [https://bit.ly/3HJ3rGv] They put forth that phrases like, “officer of the United States” must be read “sensibly, naturally and in context”.

The Colorado Case

The Colorado case against Trump began when a Judge in a lower Court in Colorado ruled that the Clause does not cover Presidents of United States and hence rejected the plea to remove Donald Trump’s name from the ballot. The Colorado Supreme Court overturned the order of the lower court citing evidence of people in the immediate post-Civil war era describing the President as an officer of the government, while focussing on ordinary use of the term. Having said this, however, there was no major disagreement between judges in Colorado who unanimously affirmed that the riots of January 6, 2021, was an insurrection. Critics of Donald Trump believe likewise. Problem is the US Constitution does not define the word “insurrection”. It was written when the Southern States launched an armed rebellion against the Union. Four Colorado Supreme Court judges held that the January 6 event was an “insurrection”. Three Judges dissented but not on this issue. Interestingly, even the lower Court Judge who had rejected the case on grounds that a President is not an “officer of the United States”, agreed that the January 6 event constituted an “insurrection”. This issue is now formally sealed and settled.

Trump: innocent or guilty ?

Donald trump concluded his speech, on the Ellipse of January 6, 2021 with the words,’’We fight. We fight like hell. And if you don’t fight like hell, you’re not going to have a country anymore”. These words of Trump are going to be the mainstay of the case against him. Also to be an issue of scrutiny will be Trump’s actions on January 6 and deliberate whether they fall within the ambit of insurrection or not. Defendants of the former President argue that he did not storm the Capitol or the Congress on January 6 since he wasn’t physically there. How then does this amount to him engaging in an ‘insurrection’ against the government or giving aid to enemies of the United States? But the US House committee constituted to investigate the riots had a different take on his involvement by drawing attention to the minute by minute timeline of the riots that shook the capital on January 6 affirming that it met the ‘standard of an insurrection’. They called attention to Trump’s fiery speech on that day summoning his supporters to Washington and concluded that it was incendiary enough to incite a mob. As part of evidence they also adduced Trump’s refusal to take measures to quell the unrest for hours or take steps to call off the rioters and his inflammatory tweet about Vice President Mike Pence while the riots were raging as proof of his involvement .

Not just Insurrection , The Other Trump Trials

Controversies and Trump are strange bedfellows. Besides the Colorado case in the US Supreme Court there are 4 other serious criminal cases filed against him in New York, Florida, Washington and Georgia. The Supreme Court’s hearing in one of these is coming up in two weeks after Donald Trump was ordered to pay $83 million in damages for defaming the writer E. Jean Carrol, who had accused him of raping her decades ago. A New York Court is expected to give a ruling in a civil fraud case whereTrump has been accused of inflating the value of his real estate portfolio. Punishments in this case are severe where Trump stands to lose not just control of his companies but will also be facing fines upto $370 million.

Donald Trump has been calling all cases against him a ‘witch hunt’ intending to damage his electoral credibility. He has been attacking prosecutors and Judges taking up his cases. Even Judges of the US Supreme Court have faced his ire. Trump is angry at the Court whose power balance he facilitated to tilt to a conservative supermajority while he was the President and he feels now it has failed to side with him on election related issues.

The US Supreme Court has a daunting task.

The New York City Bar Association has recently filed an Amicus brief urging the Supreme Court to decide the Trump Versus Anderson case promptly. [https://bit.ly/4bs3mVq.] The Amicus brief states, "The city Bar submits this brief as Amicus Curiae because it believes the Constitutional issues before the Court should be decided in a manner and on a schedule that permits voters throughout the nation to cast informed ballots with a uniform understanding of who the eligible candidates are for the Presidency."

The Supreme Court may be reluctant to wrest from American voters the power to assess Donald Trump’s conduct. This appears to be the general view taken by many in the US presently. At the same time the US Supreme Court will also be wary of giving Trump an electoral boost by way of an unqualified victory. Currently, the Supreme Court has six Republican appointees and three Democratic ones. Chief Justice John G. Roberts will attempt to avoid a partisan split. If the Court holds that Trump is an ‘insurrectionist’ who therefore can't be President again, then it would be a colossal loss for him. If the Supreme Court rules otherwise that Trump is not an ‘insurrectionist’ then it will be a stinging blow to his opponents. Be this as it may legal experts in America in one voice want the Supreme Court to act for the sake of the country and they want resolution of the issue as early as possible.

The writer, Rajiv Chavan, is a Senior Advocate & former President of Advocates Association of Western India (2013-2015 & 2015-2018)

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