The Colorado Supreme Court’s decision to disqualify Donald Trump from the state’s primary ballot under Section 3 of the 14th Amendment (14:3) — which states that a person who has taken an oath of office to support the Constitution and then engages in insurrection against the government is barred from holding office again — has drawn a lot of criticism. Then Maine’s secretary of State took the same action in her state, eliciting a similar reaction.
Much of the criticism of these decisions is simply wrong and needs to be corrected. Among the six most frequent and mistaken criticisms: Congress must act to implement 14:3; Trump was denied due process; disqualification requires a prior (criminal) conviction; conviction after impeachment is the exclusive remedy; 14:3 by its terms does not encompass the presidency; and disqualification is wrongly antidemocratic.
The claim that congressional implementation is needed is the easiest to debunk. Several constitutional scholars and the majority opinion in the Colorado case have concluded that 14:3 is, in legal parlance, “self-executing” — that is, it can be applied by its own terms without the need for implementing legislation.
But if you want congressional action, it’s right there! Majorities of both the House and the Senate voted in 2021 in the second impeachment proceeding that former President Trump was guilty of exactly the conduct proscribed by 14:3, conduct clearly stated in the Article of Impeachment, which was titled “Incitement of Insurrection.”
Of course, after impeachment by the House, the Senate did not vote to convict by the required two-thirds; that would have automatically precluded a second term. But let’s not forget or ignore that 57 senators did vote to convict, endorsing a finding that Trump had engaged in conduct covered by 14:3.
There’s no question that Donald Trump is entitled to constitutional “due process.” The question is, how much? And, what does “due process” require in this unprecedented context?
The ballot dis-qualification process is a civil matter, not a criminal prosecution, which would require stricter standards. The district court proceeding in Colorado included a five-day trial with evidence and witnesses, in which Trump’s lawyers fully participated.
There was ample opportunity for Trump and his counsel to make his case, and they did, both at trial and on appeal. Colorado’s election laws imposed tight deadlines for the trial and appeal because the primary ballot had to be certified by Jan. 5. Would additional time and engaging in pretrial discovery have afforded additional “due process”? Yes. But that does not mean Trump has been denied constitutionally required due process.
(Let’s not forget that the 2021 impeachment proceedings noted above involved substantial “due process.” There, too, Trump was represented by counsel before the Senate jury, where a majority voted to convict.)
Now for the repeated assertion that disqualification under 14:3 requires a previous criminal conviction. It is just that: an assertion. It lacks any basis in the text or history of 14:3. It is a classic red herring. And, again, we should acknowledge the majority’s finding in the former president’s second impeachment: that Trump committed the conduct laid out in 14:3 as the basis for disqualification.
Is a conviction after impeachment the sole remedy? The drafters of 14:3 were certainly aware of the impeachment provisions of the Constitution. If they had thought impeachment was the only way to deal with an insurrectionist former president, they could have said so. Most likely, the prospect would not have occurred to them. So, we are left with the plain meaning of the text of 14:3, and its obvious applicability.
The question remains, what does the term “officer of the United States” mean? Does it include the president?
The Colorado trial court decision turned on a reluctance to read that term as including the office of the president. The Colorado Supreme Court majority was not so reluctant. It noted the several references in the Constitution to the “office” of the president, holding that the president is an “officer” of the United States. The majority opinion cut through the semantics to reach the clear meaning of the text.
So, the profoundly serious complaint remains: that to apply 14:3 to disqualify Trump would be wrongly antidemocratic. This is a policy or political issue, not a legal question.
The antidemocratic lament goes to the essence of our system of constitutional government as a democratic republic. The Constitution is replete with provisions that constrain democratic majoritarianism. We may not always like them, but they are there.
The Bill of Rights proscribes what a majority in Congress can (not) do; the Electoral College is anti-democratic in overriding the popular vote; the age and citizenship minimums for House, Senate and president limit democratic choices; representation in the Senate is of states, not people. And so on.
I do not make light of applying 14:3 to disqualify a leading presidential candidate. It will cause an uproar and a crisis. But it is a crisis which the Constitution compels and which the country can survive.
Let me end by confessing my biases as a citizen, a constitutionalist, a democrat, and a Democrat. I cannot exaggerate the threat I believe a second Trump term would present to our democracy, the rule of law, and the nation I love.
The matter is now in the hands of the nation’s highest court. We can only hope they rule to preserve the republic.
David Skaggs is former six-term Democratic representative from Colorado. He is a lawyer, a graduate of Yale Law School and a member of the American Law Institute.