The recent decision by the Colorado Supreme Court to bar Donald Trump from the 2024 Republican primary race might be missing the mark. Overlooked are three pivotal words in the 14th Amendment, words that could play a significant role in Trump’s quest to reclaim the White House post his failed coup in 2021.
Despite Trump’s intention to take the case to the United States Supreme Court, these three critical words are unlikely to take center stage in mainstream news reports. Why? Let’s break it down.
The Colorado challenge, just one among almost 20 cases filed, hinges on the 14th Amendment’s provision for a lifelong ban on holding office for those who engaged in insurrection or rebellion.
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This amendment, dating back to 1868, aimed to ensure that those who sided with the Confederacy would never hold any office unless granted forgiveness by Congress, whether at the federal, state, or local level.
The argument in the Colorado case, presented by six Republicans and one independent, asserts that Trump falls under the 14th Amendment’s office-holding ban. Their claim? Trump incited a mob outside the White House, leading them to the Capitol two miles away.
The Colorado Supreme Court, in a 4 to 3 decision, sided with this argument. Dissenters don’t deny Trump’s role in motivating the attack but argue that he was neither charged nor convicted of insurrection. This nuance may catch the attention of some U.S. Supreme Court justices, challenging the idea that the 14th Amendment’s prohibition on office-holding is self-executing.
However, proving insurrection or rebellion is a tough standard. The 14th Amendment’s prohibition also applies to those who provided aid or comfort to rebels and insurrectionists.
In Trump’s case, it’s indisputable that he gave aid and comfort to the coup attempt. During the Capitol attack, Trump did nothing to stop it, and instead, he reportedly watched the violence unfold on TV, finding certain scenes gratifying.
While the U.S. Supreme Court is unlikely to delve into the aid or comfort standard during appeals, it poses a challenge for justices like Samuel Alito and Clarence Thomas, who claim to interpret the Constitution based on its plain meaning. According to their legal reasoning, Trump shouldn’t be on any ballot, as the words “aid or comfort” are crystal clear.
The complexity of the situation is heightened by the pending 14th Amendment cases in nearly 20 states, with more likely to follow. If the U.S. Supreme Court opts to keep Trump on the Colorado ballot and sends the matter back for further consideration, other cases may determine Trump’s eligibility in 2024 based on the easily established aid or comfort standard.
