Marcia Meoli: Will the highest court finally hold Trump accountable?

The U.S. Supreme Court will review the decision of the Colorado Supreme Court that former President Trump is disqualified from holding that office again under the Section 3 of the 14th Amendment to the U.S. Constitution, and then, under Colorado law, to exclude Trump the presidential primary ballot.

This case was brought by four Republican and two unaffiliated Colorado voters. The lower court held a trial where Trump and the Colorado Republican party participated. It found Trump was an insurrectionist but interpreted Section 3 did not govern the presidency. On appeal, the Colorado Supreme Court upheld the lower court on the insurrection finding, but ruled the presidency was included in Section 3. It further found that Colorado law granted the authority to remove a candidate from an election under those facts.

Section 3, the Insurrection Clause, says:

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.

Plain language is a basic approach to legal interpretation. Is the Insurrection Clause clear on its face?

It appears to apply broadly:

A. To people who previously took an oath to support the Constitution of the U.S. or any state; and

B. To people who engaged in insurrection or rebellion against the US or any State, or gave aid or comfort to the enemies thereof.

There is no limitation to Confederates here, even though the Amendment was passed as a result of the Civil War. There is no exception for the presidential oath. While different offices in the federal government have different oaths, such oaths all require the commitment to support the Constitution as that term would generally be interpreted. The presidential oath has specific words, required by Article II, Section 1: “preserve, protect and defend” the Constitution, all of which would support the Constitution.

The legal disability is automatic: No person (as described above) shall hold “any office, civil or military” under the U.S. or any state, in addition to jobs on a specific list. There is no exception for the office of the president. Article II addresses and defines the “office” of the presidency and uses that term repeatedly. Any plain meaning there to exclude the presidency from the Insurrection Clause would make no sense.

The Insurrection disability is written in the same way as the disabilities based upon foreign birth or age: “no person shall.” Article II, Section 1.

At the end of the amendment, it states that “Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” Congress did pass a law in 1948 which is still on the books: 11 USC 2383 which states that anyone who “incites, sets on foot, assists, or engages in” any rebellion or insurrection against the U.S. of its law, or gives aid for comfort thereto, shall be “incapable of holding any office under the United States.” The Insurrection Clause also gives Congress the power to remove the disability, by a two-thirds vote of each House. This happened a few times, some after the Civil War, some after the Spanish-American War and, posthumously, to Robert E. Lee and Jefferson Davis. Congress has not done this for Trump and, so far as I am aware, no one have even proposed it.

Assuming that the Insurrection Clause is not clear on its face, then one could review the legislative history. The Colorado Supreme Court did this analysis after finding the Clause clear on its face. This analysis goes on for pages and is well worth reading. It is open to the public. Case name: Anderson v. Griswold.

The Colorado courts, after evidence presented in a contested trial, found that Trump engaged in insurrection in connection with Jan. 6, 2021. The U.S. Supreme Court has ample authority to hold Trump responsible for this and declare him to be ineligible to be president again. Will they do this and spare our country from his divisiveness and threats to our democracy? We will see.

— Community Columnist Marcia Meoli is a Holland attorney and resident. Contact her at Meolimarcia@gmail.com.

This article originally appeared on The Holland Sentinel: Marcia Meoli: Will the highest court finally hold Trump accountable?