Retired conservative judge: ‘Trump disqualified himself’ from ballot

Sarah Fortinsky
·4 min read
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Retired federal judge J. Michael Luttig filed an amicus brief with the U.S. Supreme Court on Monday arguing that former President Trump is disqualified to run for public office under Section 3 of the 14th Amendment.

Luttig, a longtime conservative jurist on the 4th U.S. Circuit Court of Appeals, argued the Supreme Court justices, when they hear arguments next month in the case involving the Colorado Supreme Court decision to bar Trump from the ballot, should take a “textualist” approach to interpreting the constitution.

“The ‘textualist’s touchstone’ is to give every constitutional provision its ‘fair meaning,’” Luttig wrote. “A narrow construction to promote judicial restraint is just as bad as an ‘unreasonably … enlarged’ construction. Scalia and Garner approvingly quote Justice Story that it is forbidden to narrowly construe a constitutional provision ‘as if it were subversive of the great interests of society, or derogated from the inherent sovereignty of the people.’”

“Every provision of the Constitution is part of ‘the supreme Law of the Land,’” he continued, “not the inferior law of the land.”

The friend-of-the-court brief, which included other prominent names such as conservative lawyer George Conway, sought to refute several key arguments from Trump and his allies. Luttig has been among the most high-profile promoters of the case to bar Trump under the 14th amendment, as Colorado and Maine have moved to do.

Having “incited, and therefore engaged in, an armed insurrection” against the Constitution, Luttig wrote, Trump “disqualified himself under Section 3.”

While critics sometimes note that the 14th Amendment was ratified after the Civil War, Luttig dismissed the argument that the amendment no longer applies today and is irrelevant to Trump’s role in the Jan. 6, 2021, attack on the Capitol.

“The January 6, 2021 insurrection sought to prevent the vesting of the authority and functions of the Presidency in the newly-elected President. The Civil War generation certainly understood that the threat and use of force to prevent a newly-elected President from exercising executive power is an insurrection. Indeed, the activities of federal officials to prevent Lincoln’s inauguration were one basis for Section 3 of the Fourteenth Amendment,” he wrote.

“As on January 6, 2021, the December 20, 1860 insurrection in South Carolina was against the forthcoming transfer of executive power to a newly-elected President,” he added.

Luttig said that while “of course, the cause of secessionists was uniquely odious — to protect slavery” — the 2021 insurrection, in a geographical sense, was “broader than the South Carolina insurrection that triggered the Civil War.”

“Mr. Trump tried to prevent the newly-elected President Biden from governing anywhere in the United States. The South Carolina secession prevented the newly-elected President Lincoln from governing only in that State. The threat or use of armed force to prevent a newly-elected President from exercising executive power, whether on December 20, 1860 or January 6, 2021, is an insurrection against the Constitution,” Luttig continued.

Luttig also addressed the argument that barring Trump from the ballot would be anti-democratic. He said there were other restrictions on who can run for office in the Constitution, and noted the fact that the popular vote has so frequently favored the losing candidate shows that the American people do not have an absolute power to select their leader.

“Section 3 and these other provisions are not improperly anti-democratic,” he continued, “but rather they set forth foundational rules of the Republic adopted by the People through ratification.”

“Not much would remain of our Constitution if this Court narrowly enforced the Constitution’s provisions when they potentially frustrate large numbers of voters,” he added. “The Electoral College, separation of powers, bicameralism, six-year rotating terms for Senators, judicial review, the First Amendment, the Second Amendment, and the many Amendments protecting criminal defendants — and much more — often lead to binding results that are contrary to the majority preferences of voters in many states and nationwide.”

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Several states have seen voter-led efforts to bar Trump from appearing on the ballot in the 2024 elections. After Colorado became the first state to bar Trump from office, citing the insurrection clause of the 14th Amendment, Trump appealed, and the U.S. Supreme Court said it would hear arguments in the case in February. Maine’s top court has put a similar decision from its secretary of state on hold pending the decision in the Colorado case.

Trump is the current front-runner in the GOP presidential primary. He also has been indicted four times, on a total of 91 felony charges on a variety of matters, including his efforts to stay in power after losing the 2020 election; his retention of national security information and refusal to return the documents; and his alleged involvement in a hush money payment ahead of the 2016 election.

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