Some Reasons Why Lawsuits to Disqualify Trump Will Fail—Part I

Former U.S. President Donald Trump speaks at the Hilton Anatole in Dallas on Aug. 6, 2022. Brandon Bell/Getty Images

Commentary

Amid much media hullabaloo, a group called “Citizens for Responsibility and Ethics in Washington” (CREW) recently filed a petition in a Colorado trial court demanding that former President Donald Trump be disqualified from the Colorado presidential ballot on the grounds that he’s an insurrectionist. CREW seems to exist largely to sue Republicans, especially President Trump.

Several years ago, for example, it launched a groundless suit accusing him of violating one of the Constitution’s emoluments clauses (pdf).

CREW’s filing was, of course, followed by an appeal for donations to—you guessed it—“protect our democracy.”

The CREW lawsuit is one of several seeking to disqualify President Trump as an “insurrectionist” because of his actions in the wake of the popular vote in the 2020 presidential election. However, these suits face so many legal hurdles that they raise the question of whether they’re really about justice or about fundraising and publicity.

This two-part essay enumerates some of those legal hurdles. This Part I addresses standing to sue and the first of several other hurdles. Part II examines additional ones.

A clarification: As regular readers of my columns know, I’m not a Trump partisan. And unlike most who write in this area, my original constitutional research isn’t crafted to benefit particular political causes. I examine the evidence, and the chips fall where they may.

The Basis of the ‘Disqualification’ Suits

The disqualification suits are purportedly based on Section 3 of the 14th Amendment. This section disqualifies insurrectionists from holding most public offices. It reads, in part, as follows:

“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 ... who, having previously taken an oath, as a member of Congress, or as an officer of the United States ... 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 vote of two-thirds of each House, remove such disability.”

We’ll call this the disqualification clause.

The suits claim that President Trump’s actions in challenging the 2020 election and allegedly inciting the Jan. 6, 2021, riot make him an “insurrectionist.” As we shall see, this claim rests on several dubious premises: an overly broad definition of the constitutional word “insurrection,” an arguable reading of the phrase “office ... under the United States,” a very cramped reading of the First Amendment, and a foolish belief that a local civil case is the way to resolve an issue of this magnitude.

The remainder of this installment focuses on whether the petitioners have the legal right to sue at all and on the first problem they face if the court doesn’t dismiss their suit immediately.

Hurdle #1: Standing and Ripeness

In recent years, conservatives have been disappointed when the Supreme Court dismissed challenges to Obamacare and other overreaching federal actions because the challengers didn’t have “standing.” In the Trump disqualification cases, however, it’s the political left that may face disappointment.

A party needs “standing” to pursue a legal case. Rules of standing are different in federal and state courts. In federal court, a plaintiff must allege that the defendant has caused him or her harm or poses a threat of imminent harm. The plaintiff must also show that the court can do something about it (“redress it”). These requirements are summarized as (1) injury in fact, (2) causation, and (3) redressability.

For a plaintiff to maintain a case because of impending harm, the harm must be “imminent.” If it isn’t imminent, the case is “not ripe for review.” This is because when the possibility of harm is contingent or far in the future, many events may intervene to prevent it. The damage is, in judicial language, merely “speculative.” If a case isn’t ripe for review, the plaintiff has no standing, and the court will dismiss the lawsuit.

Andrew Hyman, a Massachusetts scholar who’s my co-author on an unrelated project, has pointed out that cases alleging that President Trump is disqualified from office clearly aren’t “ripe” by federal standards. President Trump hasn’t won the 2024 presidential election and may never do so. He hasn’t even won the Republican nomination. At this point, he hasn’t won a single Republican delegate because the first caucuses and primaries are still months in the future.

Thus, all sorts of eventualities could prevent him from winning the presidency and directly raising the disqualification issue.

That’s why, as Mr. Hyman observed, disqualification proceedings have historically been initiated after a candidate is elected to office, not before.

In state courts, such as the Colorado venue where CREW has filed, the rules for “standing” are often looser than in federal courts. Still, state judges generally don’t hear cases where the only harm is speculative. In Colorado specifically, for a plaintiff to have standing, he or she must still demonstrate harm or the threat of harm. The Colorado courts dismiss the case when the purported future injury is “remote” or “overly indirect and incidental.”

The plaintiffs’ petition in the Colorado CREW case was, of course, drafted to allege standing in the strongest possible way. Yet even its wording illustrates the speculative, amorphous, and future nature of the alleged “harm:”

“If an ineligible candidate appears on the ballot ... the ineligible candidate would have affected the integrity and fairness of the election, and the party could end up with an ineligible nominee in the general election. ... If Trump is on the ballot, voters who would otherwise vote for Petitioners’ candidates of choice will instead vote for Trump [how do they know?—ed.], reducing the likelihood that Petitioners’ candidates of choice will win the election. And Republican voters could be deprived of the chance to vote for a qualified candidate in the general election.”

“Would have effected”—“could end up”—“likelihood”—“would otherwise.“

No responsible court should adjudicate such questions.

If the petitioners really think they can make the case that President Trump personally engaged in insurrection, then their proper course is either (for reasons explained in Part II) to address the state legislature or wait to see if the people choose an Electoral College with a majority of Trump electors. If the people do choose an Electoral College with a Trump majority, then the petitioners can ask for expedited judicial review, including Supreme Court review.

In the highly unlikely case that President Trump is both elected and disqualified, there need be no constitutional crisis: Under the 20th Amendment, President Trump’s vice presidential running mate would assume the presidency.

Hurdle #2: The Disqualification Clause May Not Cover the President

Sharp-eyed readers may note that while the disqualification clause mentions senators, representatives, and presidential electors, it doesn’t mention the president or vice president. Those suing to disqualify President Trump assume that the phrase “office ... under the United States” includes the presidency. But some modern scholarship concludes that they’re wrong about that. In other words, the president may not be covered by the disqualification clause at all.

The drafters of the 14th Amendment may have had good reasons for excluding the president from the disqualification clause. First, the structure of the Electoral College helps ensure that successful candidates have wide popular support among many regions of the country. The disqualification clause permits Congress to remove a person’s disability for a lesser office. But election to the presidency or vice presidency is evidence that a higher authority—the people themselves—has forgiven a presidential or vice presidential candidate.

Moreover, there are separation-of-powers issues in requiring presidential candidates or elected presidents to petition Congress for absolution: The presidency was designed to be independent of Congress, and such a petition could place a future president in a position of subordination. It could also lead to political bargaining of the most disreputable kind.

Finally, as explained in Part II, extending the disqualification clause to include the president and vice president would create some major administrative problems.

To be clear: I’m not stating definitively that the phrase “office under the United States” excludes the presidency. This issue is still a matter of dispute. But there’s a respectable argument that it isn’t, and those arguing for disqualification will have to overcome that argument.

Views expressed in this article are opinions of the author and do not necessarily reflect the views of The Epoch Times.