Below is my column in the New York Post on the next step in the effort to disqualify former president Donald Trump in the 2024 election. I believe that the Colorado opinion will be set aside, but it is not finality but clarity that we need from the United States Supreme Court.
Here is the column:
In his book Profiles of Courage, John F. Kennedy discussed figures who answered the call of history and how such defining moments are “an opportunity that sooner or later is presented to us all.” That moment will now be presented to nine justices of the United States Supreme Court after a divided decision of the Colorado Supreme Court to disqualify Donald Trump in the 2024 election.
The test for the U.S. Supreme Court is not just what they should do, but how they should do it. As an institution, the Court is often called upon to seize such moments to bring unity and clarity on our core values. That is why this insidious opinion must not only be unequivocally but unanimously overturned.
The Colorado decision to bar Donald Trump from the ballot will be overturned because it is wrong on the history and the language of the 14th Amendment.
Dead wrong.
The question is whether the US Supreme Court will speak with one voice, including the three liberal justices.
As with the three Democratic state justices who refused to sign off on the Colorado opinion, these federal justices can now bring a moment of unity not just for the court but the country in rejecting this shockingly anti-democratic theory.
For years, the disqualification theory has been treated like some abstract parlor game for law professors.
While Democrats called for the disqualification of 120 House members, it was treated as a fringe theory.
It has now lost its charm as a legal brain teaser.
As I have previously written, the disqualification of Trump is based on the use of a long-dormant provision in Section 3 of the 14th Amendment.
After the Civil War, House members were outraged to see Alexander Stephens, the Confederate vice president, seeking to take the oath with an array of other former Confederate senators and military officers.
They had all previously taken the same oath and then violated it to join a secession movement that claimed the lives of hundreds of thousands of Americans.
That was a true rebellion.
January 6, 2021, was a riot.
That does not excuse those who committed crimes that day — but it was not an insurrection.
The majority on the Colorado Supreme Court adopted sweeping interpretations of every element of the decision to find that Trump not only incited an insurrection, but can be disqualified under this provision.
It does not matter that Trump has never been charged with even incitement or that he called for his supporters to go to the Capitol to protest “peacefully.”
In finding that Trump led an actual insurrection, the four justices used speeches going back to 2016 to show an effort to rebel before Trump was ever president.
There are ample grounds to summarily toss this opinion to the side.
However, that would not answer the call of this historic moment.
What these four justices did was a direct assault on our democratic process in seeking to bar the most popular candidate in the upcoming election.
Whatever the view of Trump, this is a decision that should rest with the voters.
No only are these four justices seeking to bar the votes of millions of voters (even barring the counting of write-in votes), but they are doing so in the name of democracy.
It is the ballot cleansing that is usually associated with authoritarian countries like Iran, where voters are protected from “unworthy” candidates.
Justice Robert Jackson once observed that he and his colleagues “are not final because we are infallible, we are infallible because we are final.”
A decision on Colorado could put this theory to rest by the sheer finality of the appeal.
However, it is not the finality that is needed at this moment. We need clarity. Clarity of purpose and principle.
The Supreme Court plays a unique role in our system at times like these.
It must at times defy us in rejecting racism as cases such as Brown v. Board of Education.
At other times, it has protected in rejecting government overreach as in cases such as Katz v. United States, demanding warrants to overcome the reasonable expectation of privacy.
This is a time where it can unify us.
The court holds the ultimate “bully pulpit” that can educate citizens on what defines us as a people.
Most people understand intuitively that what these four justices did in Colorado was wrong.
However, the court can speak as one — conservatives and liberals — in reaffirming the core values discarded by these state justices.
In that sense, it may be the greatest test of Chief Justice John Roberts.
Roberts once observed that “the most successful chief justices help their colleagues speak with one voice.”
Past chief justices from John Marshall to Earl Warren struggled to secure unanimous votes on fundamental cases to reaffirm such defining values.
The court could help unify this country in a way that may be unparalleled in its history.
It can show that justices who hold vastly different ideological views can be unified on core principles.
It can remind us that, as citizens, the Constitution is ultimately not a covenant with the government but with each other.
It is a leap of faith that, as a free people, we can decide our shared destiny and protect our shared identity.
The moment has come for nine justices to speak in one voice.
An American voice that transcends the personalities and divisions of our time.
It is a voice that speaks not to what divides us but what defines us as a people.
Jonathan Turley is the Shapiro professor of public interest law at George Washington University, where he teaches a course on the Constitution and the Supreme Court.
If a couple hundred doofuses chanting, taking selfies, and in some cases rioting (although some opted for the capitol-police guided tour) in a vast country of 300 million + inhabitants can be framed as an “insurrection”, then any protest is an insurrection, and should be treated as such.
“then any protest is an insurrection, and should be treated as such.” Ignore the reason why don’t you.
The “riot” at the capitol was for the express purpose of keeping DJT president. BLM protests, riots anywhere else in the country that re for the purpose of protesting an arrest, police brutality, abortion, or anything not related to keeping a person in office that lost is not by definition an insurrection.
It does not matter if it was one person or 100,000,000 people. The purpose of the “riot” was to keep DJT in office. That is an insurrection. The insurrection was ran by a bunch of idiots, but it was an insurrection none the less.
If thousands of people had risen up against the police throughout the US in 1875, I guarantee many would have called it an insurrection.
Your arguments are so juvenile.
Trump should file a civil rights lawsuit against those who filed the petition to keep him off the ballot in Colorado and against the Judges who said he committed insurrection.
SCOTUS unanimity😂😂😂Sotomayor et al. Shoot from the hip at their feet..juridical by feel… .
Dear Prof Turley,
Bill Barr, no friend of Donald Trump, weighed in yesterday to say this whole ballot bruhaha lacks Due Process. .. and I don’t think he’s whistling Dixie.
No coup-plotters/insurrectionists in their right minds sends out engraved RSVP invitations to the revolution (the revolution will not be televised.). Even I, no friend of Trump either (politics doth make strange bedfellows indeed!), received such an invitation from the Orange Apostle himself (but had prior engagements.). It certainly was a Well Advertised coup/insurrection, to say the least.
In the past, I’ve found myself smack-dab in the middle of a couple of coups – J6 was no coup. It was a Pity Party for the weak-minded who questioned the legitimacy of the election vote counting. A rigged election.
A rigged election! They must be joking: Trump v Biden 2020 should be the definition of a rigged election. And it won’t matter much in 2024 if ONLY Biden v Trump can win. For varying reasons .. . although I believe Joe Biden is the greatest threat to civilization in the world today.
>”What these four justices did was a direct assault on our democratic process in seeking to bar the most popular candidate in the upcoming election.”
Are you a ‘Putin Lover’? Only a Putin Lover could say such a thing. .. and it has all the classic hallmarks of Russian disinformation.
*btw having read/investigated every major speech/policy statement by Putin (& Lavrov) going back over a decade, nothing we have been told about these people is true or correct. .. put that in your pipe and smoke it!
ps. how about an edit button around here .. . anonymous or not.
edit: And it won’t matter much *[how they count the votes]* in 2024 if ONLY Biden v Trump can win. For varying reasons .. . although I believe Joe Biden is the greatest threat to civilization in the world today.
The secession movement “claimed the lives of hundreds of thousands of Americans”? Talk about revisionism. It was the Union’s response to the secession movement that claimed those lives, sir.
Simple question. Where does the 14th amendment say a person must be convicted or even charged with insurrection?
What insurrection? Assumes facts not in evidence
iowan2, I’m asking where in the 14th amendment does it say a person must be charged or convicted of insurrection. I’m not asking if there was an insurrection.
Week then the word “Insurrection” means nothing.
Have a group of people chanting outside the capital building, white house.
Let’s call that an Insurrection as well.
1000 people in and around the capitol building chanting for the death of Mike Pence and Nancy Peolosi was no picnic. It was an insurrection. An attempt to keep DJT in office after loosing an election. That is the definition of insurrection. If you believe otherwise, it shows where you stand for democracy and having votes count.
Bill g its a moot point because no evidence supports an insurrection ever happened.
Directly to the question, I would ask how could make such a finding without facts? Bills of attainder?
What would you call a 5-day trial where expert testimony was heard on both sides to determine if Trump’s actions resulted in insurrection? “No evidence”?
There was a fact-finding process. So, did you fail to read the District Court’s findings?
The district court has no authority to find that the CRIME of insurrection was committed. End of story.
Or are you really arguing that it was 14A insurrection, but not 2383 insurrection.
Just listen to yourselves. As desperate as these libtards in Colorado.
That “court” has no authority, much less the evidence, one way or another that an insurrection against the united states occurred. Zero
So wtf would anyone read that jibberish.
you cant have an insurrection without insurrectionists. So 3rd grade. Sad really.
Where in the 14th amendment does it say Biden is not guilty of insurrection?
F*cking retard.
Obviously this is a delicate constitutional issue and clearly Article 3 of the 14th Amendment could have been written more specifically. With that said, the most obvious reason this should be denied is the establishment of precedent. America simply does not need to have its political parties using the 14th Amendment in an attempt to remove candidates. I do have to disagree with Jonathon that January 6th was nothing more than a riot. Clear evidence continues to demonstrate that January 6th was coordinated from within and from outside of the White House. The effort was to disrupt the certification of the election, not only by violent means (the “riot), but also by the submission of fake electors from various states. Those folks are now being held accountable and should be. The former president is also being held to account, along with several of his minions, in both Georgia and Washington, DC. They will all be convicted by a jury of their peers, including the former president. Barring a re-election of the former president and subsequent political pardons, many of these folks are going to state and federal prison and should be. They are American traitors.
The time to remove the former president from this process has past. It was clear, and remains clear, that he should have been convicted after his second impeachment and barred from office in the appropriate manner. It is a sad day that we now have an obviously mentally ill man again within reach of the White House. The fact that we have to even debate the 14th Amendment is enough evidence alone.
Jeff,
Convicted by their “peers”. Really? Do you truly believe that any Republican can get an honest and fair trial when the judge is biased against Trump and his supporters, the prosecutor is a zealot, and the jurors come from a pool of people of which 95% typically vote for the Democrat party. In our politicized times those circumstances will not give us a fair result. And that is a very serious concern.
Jeff has had his Metamucil, and proudly lays his steaming turd at your feet.
Tom has made sure to pop off about steaming turds like he obsessively does. I’ve wondered why he’s fixated on steaming ones…, and it hit me, he needs fresh ones in his scat play.
If you don’t like the precedent, then repeal or revise the Constitutional Amendment. The courts do not have the authority to rewrite the law passed by a democratically elected Congress. Having the courts do that would be… wait for it… undemocratic.
The law may be poorly drafted, but that is a problem not for Congress, not the courts, to iron out. All the courts can do is interpret the laws Congress passes.
The 14th Amendment was passed by Congress June 13, 1866.
Before that time there were problems. William Quantrill & his Raiders.
The Copperheads: In the 1860s, the Copperheads, also known as Peace Democrats, were a faction of the Democratic Party in the Union who opposed the American Civil War and wanted an immediate peace settlement with the Confederates.
Then there are the secret societies: Scull & crossbones at Yale University, Freemasons, and Knights Templar (Freemasonry).
Who says the Star Chamber is disbanded? Charged with a crime (insurrection) and no appearance by the accused, an admitted unprecedented interpretation of the law along “equity grounds”, cherry-picked language of the accused cited against the accused yet mitigating language ignored or summarily dismissed, decision in secret by appointed judges who don’t feel the necessity to put a name to the decision. (Per Curium). It’s Merry Ol’ England and the rule of woke Kings.
It is perfectly legal and expected for a candidate to question the results of an election and to vigorously seek and find every possible loophole, legal action and to fight on every front for scrutiny of the results. That is a democracy.
Secondly, government buildings and state houses belong to the people. Many who were legally protesting the results of this election were just there. Many who entered the building were not being stopped, searched or barred.
This ruling will be overturned. But it highlights those who are vigorously working against the tenets of our system. There is a well organized activist movement to topple our way of governance. That is the real insurrection.
The current occupant of the White House is incompetent and diminished. Every family now pays 12,000 more per year for groceries and living expenses since he took office. Retail theft is out of control, a criminal can assault and spit in the face of a police officer without any consequences, and the world is a much more dangerous place. the border is overrun, and our schools and governments are overwhelmed with the millions of people who have come into this country illegally. If a person wants to see a primary doctor, it will be months and if they want to see a specialist. Sometimes it will take half a year or even up to a year. Welcome to the New World.
“The current occupant of the White House is incompetent and diminished.”
Which is a 25A argument for excluding Biden from the ballot. Only in this case, the Amendment and facts fit.
Are you listening Texas, Florida, et al.?
E.M.
Well said.
Notwithstanding what all the self-styled expert opinionators herein have to say regarding what they believe is the truth of events which might or might not have taken place prior to, on, and after January 6th, one thing is clear. Trump has yet to be charged, indicted, tried or sentenced for the crime of insurrection. It is an offense the language of which does not appear in any of the trial matters he is facing. Therein lies the rub, doesn’t it. While the rest of you attempt to fit a square peg in a round hole, I’ll wait and defer to SCOTUS in the matter. Let those who need to get a life, in these conversations and elsewhere, bandy about this further.
So Trump’s lawyers were traitors to try bending the Constitution in seeking to have Pence interrupt the count of delegates, and you’re also a traitor if you don’t agree with four Colorado justices that morphed it to remove Trump from the ballot.
Jack Smith agrees with your cogent analysis–no charge of insurrection.
Trump is literally the guy 14.3 was written for. Colorado is correct in the decision. And states administer elections in this country. So many places you’re wrong in your commentary, Turls.
Eb
Commit to honest dissembling much?
Are you retarded?
Elvis Bug has had his Metamucil and his 4th whiskey sour already this morning. Lays a steaming turd and attacks. Typical.
Next to no chance for a unanimous opinion,. There will be concurrences all over the place, not least because there’s immense pressure to get out an opinion fastfastfast. No time for a consensus to form.
Professor Turley,
I was hoping you would actually address the legal issue you have with this ruling, but alas this is no longer a legal blog.
I have a couple of pretty straightforward questions:
1. Does the 22nd Amendment deprive a term-limited president with “life, liberty or property” under the due process clause of the 14th Amendment by denying such a candidate the right to hold the office of the President for a third term? If it does not, then why does Section 3 of the 14th Amendment deprive Trump of due process, while the 22nd Amendment does not?
2. Even if Trump has DP rights, were they not met with a 5 day trial where both sides presented expert testimony? SCOTUS has held that a “quasi-judicial” hearing is sufficient to meet this requirement in other contexts, such as the deprivation of welfare benefits. (Goldberg v. Kelly). Why does Trump deserve a higher level of due process? There is no case law pertaining to procedural due process (that I am aware of) that requires the level of DP afforded to criminal defendants if the deprivation of life/liberty/property coincides with some claim that has parallels in criminal law. For example, if the government deprives an individual of welfare benefits because of suspected fraud, does that individual get DP on par with that of a criminal defendant?
The DP rights argument seems weak at best, but perhaps I am missing something. An employee’s employment in a public position can be deemed a property interest deserving of procedural due process, but a term-limited president would seemingly have a better claim to such due process rights than an applicant, who does not currently hold the position. Thus, the 22nd Amendment comparison still remains apt.
To put the kibosh on one Leftist lie:
The Colorado suit “was not brought up by the Democrats. It was republican and independent voters.”
That is a quarter-truth.
The suit was spearheaded by a *democrat* secretary of state and decided by 4 *democrat* justices.
More importantly, the case was filed and funded by “Citizens for Responsibility and Ethics” — a Leftist attack dog organization that began hounding Trump days after he became president.
Several commenters point to the fact that “engaging in” an insurrection is the standard, not conviction of insurrection. I agree to the extent that if Trump had physically led or been a part of the riot, there could be a plausible argument that he engaged in an insurrection. He did neither. In fact, he implored people to protest peacefully.
If this dangerous decision is not struck down unanimously, it will have a chilling effect on political speech going forward and propel us even closer to one party rule which is a quasi dictatorship.
Also, Republicans like to focus on Jan 6 and say it I was just a riot. They ignore that the attempted coup by Trump happened over two months. He tried to get Pence to violate the constitution, the tried to get the SoS of GA to falsify the votes, and many other acts.
Al Gore Jr., over the course of several weeks, tried to force Florida election officials to change the result of the 2020 Presidential election in that state. He must also have been an insurrectionist.
There were valid legal issues to resolve in 2000. Gore used only legal means, and stopped when he ran out of legal options. He also refused to entertain objections to the EC vote count.
Gore didn’t try to “force” anything. He made legal arguments that ultimately failed and he walked away.
“Also, Republicans like to focus on Jan 6”—-Sammy the turd layer bwahahahahaha
It’s amazing how many seemingly rational adults have swallowed the magical “insurrection pill”. The events of J6 wouldn’t even be a slow night during Mardi Gras for heaven’s sake, let alone a REAL insurrection. Apparently, most Democrats are true believers of Joseph Goebbels philosophy of the Big Lie. Who knew !! Let’s see if Justices Ketangi-Brown Jackson, Sotomayor, and Kagan will actually follow the law on this one. Thank you, Jonathan, for an excellent article.
What Mardi Gras did you attend, where public documents were forged and signed in several states by individuals under oath?
Is Bourbon street where you picked up that steaming turd?^^^^
I don’t understand. Would it be an insurrection if 100 people died? tanks were used? The capital was broken into ruble? Because this insurrection was ran by a bunch of imbeciles does not make it less of an insurrection. It was just a terribly ran one by an orange man that thinks everything he does is golden. If you rob a bank with a rubber band as a weapon, drop it on the floor as you walk out, trip over your own shoelaces, Could that be used as a defense and say you really didn’t rob the bank because you are an imbicile?
Bill G digs deep for a really smelly turd ^^^^
The law is straightforward on this. Trump should be ineligible.