Three judges from three states, Minnesota, Michigan and Colorado, have ruined the aspirations of those who seek to prevent Donald Trump from running in the presidential elections next year based on his role in the assault on the Capitol on January 6, 2021. and from a provision included in the fourteenth amendment of the US Constitution.
The last to do so was this Friday night Judge Sarah Wallace, who refused to remove the former president’s name from the Republican primary ballots in Colorado, two months before they begin in Iowa.
The Constitution does not prohibit someone investigated for a federal crime from being president; nor aspire to it, although, as is the case, he faces 94 charges in four different cases, for his alleged involvement in the attack on the Capitol, for electoral crimes and for his handling of classified papers. There is not even that reservation in the fundamental text if he ends up in jail.
But the Fourteenth Amendment does provide an exception in its third section, known as the “disqualification clause,” which says: “No person may be […] president […] if, having previously taken an oath of support for the Constitution of the United States, he has participated in an insurrection or rebellion against the same, or given aid or comfort to its enemies.” The text also warns that Congress can lift that veto if it meets a two-thirds majority.
Passed in 1868, the amendment served to grant citizenship to any person “born or naturalized in the United States,” including those who had been enslaved, and guarantee the equality of all citizens before the law. The third section was designed to prevent the recurrence of the Confederation rebels, defeated in the Civil War (1861-1865). It has been applied very rarely, only twice since 1919.
The Colorado judge justified her decision by arguing that, according to her interpretation, the Fourteenth Amendment cannot apply to presidents. Her decision does conclude that “Trump participated in an insurrection on January 6, 2021, which he incited.” She also does not skimp on reprimanding her, saying that she knew that “[Su] inflammatory rhetoric [de aquel día]coming from a speaker who routinely embraced political violence and who had inflamed the anger of his supporters before certification [del triunfo legítimo de Biden]would likely incite imminent anarchy and disorder.”
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The third clause talks about senators and congressmen, but does not specifically refer to the office of president, Wallace believes. “After considering the arguments of both parties, this court is convinced that, for whatever reason, the drafters of that text did not want to include anyone who had taken the presidential oath,” he writes in his argument.
Friday’s was the third splash of cold water in just over a week for defenders of a legal theory defended in a 126-page scientific article for the University of Pennsylvania Law Review. Graduated The extension and strength of the third section, It is signed by William Baude and Michael Stokes Paulsen, two renowned conservative academics, who argue that the disqualification clause is far from being a nineteenth-century anachronism and that there is no doubt that Trump’s actions fit its description.
The Minnesota Supreme Court justified that Trump could run for primaries by saying that it is up to the political parties to decide who appears on their ballots. A few days later, a Michigan judge disregarded the responsibility of deciding the matter, which he considers to be up to Congress.
Possibility of appeal
The Colorado plaintiffs will be able to appeal the decision to the state Supreme Court, as well as take the case to Washington, which has a conservative supermajority of six to three. Three of its members are appointments from Trump’s years in the White House (2017-2021).
The lawsuit had been filed by a Washington organization called Citizens for Responsibility and Ethics (CREW), with experience in judicially confronting Trump. In an interview with EL PAÍS last September, Donald Sherman, its vice president, declared: “There is overwhelming evidence that the clause can be activated in this case. The concept is simple to understand, although the litigation is not going to be.” CREW achieved the application last year of the clause to prevent Cuoy Griffin, founder of the group Cowboys for Trump, from holding public office in New Mexico.
“We applaud today’s ruling in Colorado, which is another nail in the coffin of anti-American election challenges,” a Trump spokesman, Steven Cheung, said in a statement on Friday. “The voter has the constitutional right to vote for the candidate of his choice.”
The former president leads with a notable margin all voting intention surveys to be designated as the candidate for the Republican Party in the November 2024 polls.
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