Former judge urges Supreme Court to disqualify Trump from the ballot

February 1, 2024
by
Matthew Boose

A former federal judge who is one of the main sponsors of the legal theory behind efforts to remove Donald Trump from the ballot has submitted a brief with the Supreme Court arguing he "disqualified himself."

J. Michael Luttig advanced familiar arguments in his amicus brief, which held Trump responsible for an "armed insurrection" that Luttig compared to the Civil War. 

The untested theory claims that Trump is ineligible to be president under an obscure clause of the Fourteenth Amendment that bars "insurrectionists" from federal office.

Anti-Trump judge...

Luttig's argument focused on the notion that Trump did, in fact, engage in an insurrection as the Fourteenth Amendment's framers understood it.

"As on January 6, 2021, the December 20, 1860 insurrection in South Carolina was against the forthcoming transfer of executive power to a newly-elected President,” he wrote.

Luttig attempted to sway the court's conservatives by arguing that a "textualist" approach requires finding Trump ineligible. The court's conservative justices are often described as textualists or originalists, who interpret the Constitution as written.

Luttig also attempted to counter one of the most logical arguments in Trump's favor - that removing him from the ballot is undemocratic.

In response, Luttig noted that the Constitution includes some undemocratic features like the Electoral College.

“Not much would remain of our Constitution if this Court narrowly enforced the Constitution’s provisions when they potentially frustrate large numbers of voters,” he wrote.

Trump warns of chaos

Despite Luttig's confident assertions, the issue of Trump's eligibility has - naturally, since it is so unprecedented - divided the courts.

The Colorado Supreme Court, which issued the ruling that the Supreme Court is now reviewing, was narrowly split 4-3, and challenges have been thrown out in a number of states, although on procedural grounds.

In his own brief to the Supreme Court - which hears oral arguments on February 8 - Trump warned that removing him from the ballot would disenfranchise voters and unleash "bedlam" throughout the country.

Trump's "bedlam" comment has sometimes been twisted as a call for political violence, but Trump - and even critics of his like former attorney general Bill Barr - say the precedent being set in removing Trump could destabilize the American political system.

Trump has not been convicted of or charged with insurrection, something Trump and his defenders have been quick to point out.

Some of Trump's critics on the right have filed briefs in his support, including Barr and Mitch McConnell.

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