Supreme Court prepares to decide the future of insurrectionist presidents 

WASHINGTON (CN) — Donald Trump’s presidential campaign will make a pit stop at the Supreme Court this week as the former president tries to convince the justices that the Constitution does not prohibit insurrectionist presidents. 

Section 3 of the 14th Amendment prevents any oath-taking officeholders — specifically members of Congress, state legislators, executive and judicial officers, or any officer of the United States — from returning to their posts if they have engaged in an insurrection or rebellion. But Trump claims the Disqualification Clause doesn’t apply to presidents. 

“The court should reverse the Colorado decision because President Trump is not even subject to Section 3, as the president is not an ‘officer of the United States’ under the Constitution,” wrote Jonathan Mitchell, an attorney with Mitchell Law who represents Trump.

Trump’s argument requires a strict reading of the Constitution’s text, a methodology sometimes favored by the conservative wing of the high court. But some historians say such a reading would abandon the framers' intent in enacting Section 3 in the wake of the Civil War.

“The meaning of Section Three of the Fourteenth Amendment is best discerned in the actual history of Reconstruction,” a group of American historians wrote in an amicus brief. “Haunted by the nation’s suffering and fearful of disloyalty and ongoing political violence, Congress conducted an investigation into conditions in the South and determined that the disqualification of office-holders who had engaged in an insurrection against the Constitution was necessary for the security of the republic.” 

Chief among the framers' concerns, according to the historians, was a potential presidential run by Jefferson Davis. 

The former Confederate leader was imprisoned and indicted for treason but never convicted. Under the Second Confiscation Act, anyone guilty of treason would be barred from ever holding office in the United States.

“For decades, Jefferson Davis stood as the cautionary tale through which Congress and the public understood Section Three,” the historians wrote. “No danger better illustrated the peril the nation would have faced without Section Three than the prospect of the leader of an insurrection running for president.” 

The historians said the framers were motivated by the difficulties in prosecuting Davis, seeking a solution to keep him out of office either way. 

“[The framers] knew that no one in the United States is above the law, not even the President, and that no republican government can afford to return insurrectionists to office,” the historians wrote.

A group of Colorado voters shared a similar sentiment in the case under review by the justices this week. The voters claim Trump engaged in an insurrection on and leading up to Jan. 6, 2021, and want him removed from the state’s presidential primary ballot. 

The Colorado Supreme Court used findings from a trial to rule that Trump should be removed from the ballot for engaging in an insurrection. Trump and the Colorado Republican Party asked the justices to overturn the ruling. 

The Supreme Court’s review of the case on Thursday could be complicated by the varying versions of history presented by different parties in the case. 

Former Attorneys General Edwin Meese III, Michael Mukasey and William Barr were joined by two conservative law professors to contest the argument that a Davis presidential run was a concern for the framers. The group argues that the founders were more worried about insurrectionist lawmakers than presidents, and that Section 3’s aim was to disqualify presidential electors, not presidential candidates. 

“Winning offices in states of the former Confederacy was the only realistic risk, and Section 3 was tailored to address that concern,” the group wrote in its amicus brief. 

Like Trump, the former attorneys general argue the textual interpretation of Section 3 should prevail. They claim the surrounding text supports this conclusion because the list is hierarchical with the public offices in descending rank order. If officers of the United States included the president, then the group would have been listed first, according to the theory. 

Just like the historical analysis, not all textualists are on the same page either.

Judge Michael Luttig cited the late Justice Antonin Scalia to urge the justices to “fair meaning” when reading Section 3. In Luttig’s view, reading Section 3 to not include presidents would unfairly narrow the clause. 

“Section 3 would be a dead letter if the court refused to apply it because an insurrectionist had popularity with large numbers of voters,” Luttig wrote. “Just as ‘it is not the role of this court to pronounce the Second Amendment extinct,’ it is not the role of this court to render Section 3 extinct.”

Colorado was just the first state to attempt to remove Trump from its ballot, later joined by Maine. Dozens of other states are also considering the former president’s ballot eligibility, setting up a Supreme Court showdown that will dictate ballots across the nation. 

Follow @KelseyReichmann

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit