Former U.S. President Donald Trump returns from a short break to speak to members of the media upon arrival to the court on day two of his civil fraud trial, Manhattan Supreme Court, New York, NY, October 3, 2023. (Photo by Anthony Behar/Sipa USA)(Sipa via AP Images)
Attorneys for Donald Trump this week argued that the U.S. Constitution's insurrection clause does not and cannot apply to a president, or someone running for president, of the United States.
"Section Three of the Fourteenth Amendment does not prohibit someone from running for office—it prohibits someone from holding office, and even then, only if Congress chooses not to lift the prohibition," a Monday filing by the ex-president's lawyers reads.
The argument was made in response to a recent series of back-and-forth motions and court orders filed in an ongoing Colorado court case. That case is the first lawsuit of any real consequence that aims to bar the 45th president from appearing on the 2024 ballot.
Filed by Citizens for Responsibility and Ethics in Washington (CREW) attorneys on behalf of several voters and anti-Trump conservatives, the lawsuit names Colorado Secretary of State Jena Griswold and Trump himself as defendants. The heart of the Colorado case is similar to many such efforts across the country: Trump's actions leading up to and during the Jan. 6, 2021, attack on the U.S. Capitol Complex disqualified him from ever again holding federal elected office under Section III of the Fourteenth Amendment.
Trump has responded to the lawsuit by claiming that the effort is both unripe – because the major party presidential candidates have yet to be determined and, therefore, the ballots have not been finalized – and a violation of his First Amendment right to free speech. In Colorado, Trump's free speech claim is being adjudicated under the state's anti-strategic lawsuit against public participation (anti-SLAPP) laws.
In late September, the judge overseeing the case ordered the parties to offer arguments about the admissibility of certain evidence.
On Monday, in a 26-page motion filed in Denver District Court, Trump's attorneys Scott E. Gessler and Geoffrey N. Blue reiterated the basic thrust of their legal argument: that the 45th president is being sued because of his speech – not because he actually "engaged in" a "purported insurrection."
While typically understood in the domain of defamation law, Trump's attorneys claim the Mile High State's anti-SLAPP statute, passed in 2019, applies to the state's election laws as well. The people suing Trump, however, claim the state's election code does not allow for anti-SLAPP laws to be applied.
"Petitioners want to punish President Trump for speaking about his belief that the 2020 election was marred by fraud and by Democrats' manipulation of the process to stack the deck against him," the Trump motion reads. "It is his right to make those claims—even if he is wrong. Petitioners cannot be permitted to strip him of his right to challenge their anti-free speech and anti-civil liberties lawsuit through an anti-SLAPP motion merely based on their preferred choice of procedure, especially when no procedural conflict exists."
The present state of the litigation is premised on the basic question of whether or not the anti-SLAPP law applies. But in their recent motion, Trump's attorneys sketched out the basis of their broader case as well.
"Section Three does not apply to President Trump," the filing reads. "Section Three disqualifies a person from holding office only if he "previously [took] an oath, as a member of Congress, or as an officer of the United States, or as member of any State legislature, or as an executive or judicial officer of any State…' Because President Trump was never a congressman, state legislator, or state officer, Section Three applies only if he was an 'officer of the United States.' But as that term was used in Section Three, it did not cover the President."
In essence, the Trump motion has wholly endorsed the legal argument advanced in a recent Wall Street Journal op-ed by former U.S. Attorney General Michael Mukasey. To hear Mukasey tell it, the term "officer" in Section III only refers to "appointed officials," not elected ones.
"The phrase 'Officers of the United States,' as used in the Constitution of 1788, does not refer to elected positions," Trump's attorneys argued in their Sept. 29 special motion to dismiss. "This established meaning had not changed by 1868, when the Fourteenth Amendment was ratified."
In the latest motion, Trump's legal team reiterates the argument about the meaning of officers – and elaborates on another argument first offered in late September.
"[T]he Presidential oath, which the framers of the Fourteenth Amendment surely knew, requires the President to swear to 'preserve, protect and defend' the Constitution—not 'to support' the Constitution," the motion reads. "Both oaths put a weighty burden on an oath-taker. However, because the framers chose to define the group of people subject to Section Three by an oath to 'support' the Constitution of the United States, and not by an oath to "preserve, protect and defend" the Constitution, the framers of the Fourteenth Amendment never intended for it to apply to the President."
Their latest version of this argument seeks to stake out new territory as to what the insurrection clause demands in a broader constitutional context and who it demands such things from.
"If they wanted to include the President in the reach of Section Three, they could have done so by expanding the language of which type of oath would bring an 'officer' under the strictures of Section Three," the Monday motion argues. "They did not do so, and no number of semantical arguments will change this simple fact. As such, Section Three does not apply to President Trump."
In other words, Trump's attorneys seem to say that the requisite oaths applied to (1) the presidential swearing-in ceremony and (2) the insurrection clause are substantially different in key respects. And since they are both contained in the Constitution, the argument would hold the insurrection clause's oath simply isn't broad enough to cover the executive.
Brandi Buchman contributed to this report.
