Three former GOP attorneys general, including Bill Barr, file brief siding with Trump in Supreme Court 14th Amendment 'insurrection' case

 January 19, 2024

The U.S. Supreme Court will hear arguments next month in former President Donald Trump's challenge against the Colorado Supreme Court's ruling that he is barred from appearing on that state's primary election ballot under the "insurrection" clause of Section 3 of the U.S. Constitution's 14th Amendment.

On Thursday, three former GOP U.S. attorneys general filed a brief with the Supreme Court in support of Trump's position that the 14th Amendment's "insurrection" clause doesn't apply to the president and therefore can't be used to bar him from state ballots, Breitbart reported.

Those three former attorneys general include Edwin Meese, who served under Ronald Reagan, Michael Mukasey, who served under George W. Bush, and Bill Barr, who served under Trump but is certainly otherwise no longer a supporter of his former boss. They were joined by constitutional law professors Steven Calabresi and Gary Lawson, along with the conservative advocacy group Citizens United.

14th Amendment's Section 3 doesn't apply to presidency

The 39-page brief stated unequivocally, "Whatever one thinks of the behavior of former President Trump in the wake of the 2020 election, Section 3 of the Fourteenth Amendment does not disqualify him from the presidential ballot, and it cannot do so based on the finding of a county court in Colorado that he 'engaged' in an 'insurrection' on or leading up to January 6, 2021."

The former AGs and professors pointed out that Section 3 doesn't cover or include the president among the various offices mentioned, and observed, "This is evident in Section 3’s text, which omits the President, instead specifying certain offices such as Senator and Representative. Earlier versions of the proposed text included President and Vice President, but later versions excluded those offices, and instead disqualified presidential electors who would choose the occupants of the presidential and vice presidential offices."

They further explained that, based on historical records from the post-Civil War era in which the 14th Amendment was debated and ratified, there were virtually no worries expressed about former Confederate officers and politicians -- the true targets of Section 3 -- attaining the presidency, though there were concerns about them being elected to the House and Senate, hence those offices getting a specific mention.

It was also noted that the presidency, given its status as the highest office in the nation -- setting aside the inconclusive debate over whether the president even counts as an "officer" of the U.S. -- would have been listed first if it was meant to be included "instead of grouped with a catch-all phrase toward the bottom of the list."

There is already an applicable law that Trump has not been charged with or convicted of

The former AGs and law professors also sought to debunk the notion that the 14th Amendment's Section 3 is "self-executing" and instead argued that "Section 3 is entirely dependent upon legislation passed pursuant to Section 5, suggested in part by Section 3’s reference to a supermajority vote needed to reverse the Section’s effects."

In other words, Congress needed to pass a law "enabling" Section 3's "insurrection or rebellion" clause, which it did with legislation in 1870 and again in 1894 with what is now on the books as 18 U.S.C. § 2383.

That statute says: "Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States."

"But President Trump has never even been charged with violating Section 2383, much less convicted under it," the brief asserted. "And, for any potential defendant, proceedings following such a charge would be governed by all the rights secured by the Fourth, Fifth, Sixth, and (for proceedings by a State) Fourteenth Amendments."

Opposite hypothetical situation offered for comparison

"For practical and institutional reasons, too, this Court should resist any interpretation of Section 3 that empowers partisan public officials to unilaterally disqualify politicians from the opposing party -- and especially in this case, the current leader of the opposition party -- from the ballot," the former AGs and law professors wrote.

"The danger of the Colorado Supreme Court’s approach becomes readily apparent when one considers a hypothetical in which the partisan shoe is on the other foot," they continued. "If the Colorado decision were correct, the Georgia Secretary of State, a Republican, could unilaterally disqualify President Biden, a Democrat, from that swing State’s ballot one day before the ballot certification deadline -- perhaps finding that some of President Biden’s policies were lawless in such a manner as to constitute, in the Secretary’s view, an 'insurrection.'"

"Other Republican officials are threatening to do just that. This Court should resist any understanding of Section 3 that permits such political gamesmanship, from either side," the brief concluded.

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