Rescuing the ballot

MARY REICHARD, HOST: It’s Tuesday, the 9th of January, 2024.

You’re listening to today’s edition of The World and Everything in It. Good morning, I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher. First up: Trump’s place on the 2024 ballot.

Last month, the Colorado Supreme Court and Secretary of State in Maine removed Donald Trump from their primary ballots. They argued that Trump was ineligible to run for office, citing an obscure part of the 14th Amendment to the Constitution.

REICHARD: Section 3 of the 14th Amendment was originally drafted to prevent former Confederates from returning to government office after the Civil War, and now the U.S. Supreme Court will consider whether it applies to Trump’s behavior on January 6th, 2021.

EICHER: Joining us now to talk about it is Daniel Suhr. He is an attorney in Milwaukee, he served as a senior adviser to the Governor of his state, Scott Walker. He’s also a contributor to World Opinions.

REICHARD: Daniel, good morning.

DANIEL SUHR: Good morning, Mary. Thanks for having me.

REICHARD: Well Daniel, let’s start with the text. What does Article 3 of the 14th Amendment say, and how has it traditionally been interpreted?

SUHR: I don't know that it's ever really been interpreted, Mary, that's one of the unique parts of this whole case. Article, or Section 3, rather, of the 14th amendment was adopted in the wake of the Civil War. And it had a very clear purpose. It was to say that Confederates who had fought against the United States were traitors, right in a very real sense, in particular, that those who had taken an oath to serve the United States, and then betrayed that oath, had done something even more objectionable, even more wrong than the other Confederates who served in the rebellion. And so the Section 3 lays down a rule. It says simply, if you had taken an oath, and then turned around and engaged in insurrection or rebellion against the United States, you cannot run for office in Congress, you cannot run for President or Vice President.

EICHER: Well, given that background, what grounds did the Colorado Supreme Court cite to justify its decision last month?

SUHR: So obviously, January 6th, 2021, was a minimum unique moment in our nation's history. And one of the hot interpretations from that day was what role President Trump's public statements had in prompting the protesters who eventually went on to take over the Capitol. So how does that apply in this legal context? Well, if the 14th Amendment says that any person who is engaged in insurrection or rebellion against the United States cannot serve as president, well, then President Trump, if he engaged in insurrection or rebellion, if that's how one characterizes his role in January 6, then he's ineligible to serve as president again in 2024.

REICHARD: Daniel, some who oppose what Maine and Colorado have done point out that Donald Trump has not been convicted of insurrection. Even special counsel Jack Smith avoided charging Trump with committing insurrection in his recommendations for indictment last year. But Maine’s Secretary of State Shenna Bellows says that doesn’t matter.

BELLOW: This is not a criminal matter. And Section 3 of the 14th Amendment does not require a conviction.

Daniel, how would you respond to that argument?

SUHR: So I would characterize this the same as impeachment, right? Impeachment is provided in the U.S. Constitution, and it says high crimes or misdemeanors. But ultimately, impeachment is a political decision. Does a majority of the U.S. House of Representatives, does a super majority of the U.S. Senate, find what the President has done is wrong? Right, and so that is that is something they vote on, and it's not a legal conclusion. It is a political conclusion ultimately reached by political actors. And so I have some sympathy for the argument that insurrection, as that term is used in the 14th Amendment, doesn't necessarily require conviction of the crime of insurrection. That said, if you ask a lawyer, did what President Trump engaged in on January 6, did that constitute insurrection? There's a reason Jack Smith didn't charge him with it. It's because he couldn't convict him of it, right? In fact, he didn't even want to try to convict him of it, because he didn't feel like the facts would support it. And so once again, when political actors make these sort of political decisions, it's hard not to see what, for instance, the Maine Secretary of State is doing through a political prism, that this is about retaliating against Donald Trump because they don't like him, not because he broke some statutory or constitutional legal standard.

EICHER: The Supreme Court will hear Trump’s appeal against Colorado’s Supreme Court on February 8th less than a month before Colorado’s presidential primary election on March 5th. What do you expect to see?

SUHR: Yeah, as though the Supreme Court didn't have a hot enough docket already this term, right? We've got two major abortion cases, we obviously had huge cases the last several terms, and now we get this one. Ultimately, I think this Supreme Court is going to do what it has always done, which is look at the text, look at the original history and meaning of these words as they were understood at the time, and then apply them to the facts. And I think if you do that in a fair and unbiased way, you'll see that President Trump's remarks the morning of January 6, we're at well within his first amendment rights to free speech, that he did not engage in or even incite others to engage in insurrection or rebellion, that he was simply making a valid legitimate political point that several United States senators and members of Congress agreed with that was well within the realm of mainstream political discourse at the time. The fact that other people at the end of that rally got out of control and that their protests, you know, turned into something more like a riot, it's a very high standard to say that he incited that, and I think the U.S. Supreme Court will ultimately recognize that these are questions that the American people should be empowered to resolve in the ballot box, rather than having judges make the decision and denying people the opportunity to vote on these questions.

REICHARD: Daniel Suhr is an attorney and regular contributor to WORLD Opinions. Daniel, thank you for your time!

SUHR: Thanks for having me on, Mary.

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