In the wake of the recent oral arguments concerning the historic case of former President Trump’s disqualification under the 14th Amendment’s insurrection clause, the Supreme Court now faces another significant decision. Scheduled for consideration this week is the case of a New Mexico county commissioner involved in the Capitol attack on January 6, 2021.

Couy Griffin’s Appeal: A Parallel to Trump’s Legal Battle

Couy Griffin, founder of Cowboys for Trump, found himself ousted from office by a state judge after being found guilty of breaching a restricted area during the Capitol riot. In a parallel legal move to Trump’s case, Griffin is fervently urging the Supreme Court to hear his appeal, which coincides with the court’s deliberations on Trump’s eligibility.

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14th Amendment’s Insurrection Clause: Historical Relevance Resurfaces

Originally crafted to prevent ex-Confederates from reclaiming power post-Civil War, the 14th Amendment’s Insurrection Clause has gained newfound attention in the aftermath of the Capitol attack. While Trump’s case has drawn significant attention, Griffin’s situation underscores the broader application of this provision to public officials involved in rebellious acts.

Legal Challenges and Their Outcomes

Efforts to disqualify public officials under the 14th Amendment have faced mixed results—challenges against figures like Rep. Marjorie Taylor Greene and Reps. Paul Gosar and Andy Biggs saw varying outcomes, with some cases dismissed and others still pending. Trump, meanwhile, has encountered numerous lawsuits, with only Colorado and Maine moving to exclude him from their Republican primary ballots, pending the Supreme Court’s ruling.

Griffin’s Disqualification: Legal Proceedings and Pending Supreme Court Decision

Griffin’s disqualification occurred swiftly following a challenge from New Mexico voters, preceding his guilty verdict in the criminal case related to January 6. His appeal to the Supreme Court contends that his actions didn’t constitute insurrection, but rather a riot or civil disturbance, challenging the grounds for his disqualification.

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Supreme Court’s Conundrum: Balancing Trump and Griffin Cases

As the Supreme Court grapples with Trump’s case, Griffin’s appeal presents an additional layer of complexity. Justices must navigate whether to address Griffin’s disqualification alongside Trump’s, particularly regarding the authority of states to enforce the 14th Amendment against state-level officials.

Jurisdictional Debate and Call for Action

Beyond the substantive legal issues, a debate over the Supreme Court’s jurisdiction in Griffin’s case has emerged. Plaintiffs argue against the court’s power to review the disqualification, emphasizing its meritlessness. However, both sides advocate for swift action from the Supreme Court, urging a resolution independent of Trump’s case.

In conclusion, the Supreme Court faces a critical juncture in considering the disqualification of public officials under the 14th Amendment, with Griffin’s appeal adding complexity to an already intricate legal landscape.

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Former President Donald Trump is seeking to overturn the Colorado Supreme Court’s decision that removed him from the state’s ballot for the 2024 presidential election. In a brief submitted by Trump’s attorneys to the US Supreme Court, they argue that the state court’s ruling was in error and unprecedented. Here are the key points:

Trump’s Legal Argument

Trump’s attorneys contend that the Colorado Supreme Court wrongly applied Section 3 of the 14th Amendment, claiming that as a former president, Trump is not an ‘officer of the United States’ under the Constitution. They further assert that even if Section 3 applied, Trump did not engage in conduct that qualifies as ‘insurrection’ on January 6, 2021.

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Potential Chaos and Bedlam

According to Trump’s legal team, upholding the Colorado decision could lead to chaos and bedlam if other state courts follow suit, excluding Trump from their ballots. They argue that this would have far-reaching consequences for the electoral process and potentially impact the Republican presidential nominee’s candidacy.

US Supreme Court’s Involvement

The US Supreme Court has agreed to hear Trump’s appeal, accepting the case brought forward by the former president. The court is simultaneously dealing with other matters that could impact the federal criminal case against Trump. The Colorado ruling is on hold pending the US Supreme Court’s resolution.

House Speaker and GOP Support

House Speaker Mike Johnson, Senate Minority Leader Mitch McConnell, and numerous GOP lawmakers have expressed their support for Trump in a friend-of-the-court brief. They argue that the Colorado Supreme Court’s decision infringes on Congress’ power by enforcing the ‘insurrectionist ban’ without proper authorization. The Republicans fear that this ruling could encourage state officials to label political opponents as insurrectionists, urging the Supreme Court to overturn the decision.

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GOP Secretaries of State’s Concerns

A group of GOP secretaries of state from various states, including Missouri, Alabama, and Ohio, submitted a brief urging the court to prevent disqualification of candidates based on Section 3. They express concerns about potential abuse if partisan elected officials can make unreviewable disqualification decisions without constitutional protections.

National Implications

The outcome of this case extends beyond Colorado, as Trump has been removed from the ballot in Colorado and Maine. Judges across the country are closely monitoring this case, with the Oregon Supreme Court dismissing a similar case last week, advising challengers to potentially refile based on the US Supreme Court’s decision in the Colorado case.

The oral arguments for the Colorado case are scheduled for February 8, setting the stage for a significant legal battle with implications for Trump’s candidacy and the interpretation of the 14th Amendment.

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In a forthcoming law review article set to be published in the University of Pennsylvania Law Review, two conservative law professors assert that former President Donald Trump is disqualified from holding public office under the 14th Amendment due to his alleged engagement in insurrection. The scholars, William Baude from the University of Chicago Law School and Michael Stokes Paulsen from the University of St. Thomas School of Law, conducted a detailed analysis using methods of originalism to examine the “insurrection” phrase in Section 3 of the 14th Amendment.

Section 3 of the 14th Amendment restricts individuals who have taken an oath to support the U.S. Constitution from holding office if they have “engaged in insurrection or rebellion” against the Constitution, or if they have “given aid to the enemies” of the United States. This ban can be lifted through a supermajority waiver by Congress. While initially aimed at barring former Confederate legislators and officers from taking office after the Civil War, Section 3 remains applicable beyond that context, as Baude and Paulsen emphasize.

The law professors highlight several factors that they argue support Trump’s disqualification from office under the 14th Amendment. They reference Trump’s claims that the 2020 presidential election was “stolen” and “rigged,” along with his alleged attempts to influence state officials, courts, and legislatures to overturn the election results. Baude and Paulsen also point to Trump’s actions in assembling competing state electors and pressuring Congress not to count electoral votes. They underscore his role in the events leading up to the January 6, 2021, U.S. Capitol riot, including an “incendiary address” to his supporters and his subsequent failure to immediately condemn the violence.

See also: Former President Trump Enters Not Guilty Plea in Election Obstruction Case

The scholars put forth four key arguments in their article:

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• Continued Legality: Contrary to the perception of being a dead letter, Section 3 of the 14th Amendment remains legally operative, despite amnesty votes in 1872 and 1898. Those years’ votes removed legal disqualifications already in effect, indicating that the disqualification was inherent.
• Self-Executing Clause: Baude and Paulsen contend that Section 3 is legally self-executing, requiring no additional legislation or court decision to trigger the disqualification. This makes it applicable to state election officials and federal and state lawmakers alike.
• Superseding Conflicting Provisions: The scholars assert that Section 3 supersedes previous constitutional provisions with conflicting terms, even those protecting free speech under the First Amendment.
• Sweeping Disqualification: The authors emphasize the broad scope of disqualification for individuals who have “engaged in” insurrection, which they argue encompasses Trump’s actions aimed at overturning the 2020 presidential election.

Conservative legal scholar Steven Calabresi, from Northwestern University Pritzker School of Law, supports Baude and Paulsen’s conclusions. He suggests that former New Jersey Gov. Chris Christie could challenge Trump’s eligibility for the ballot, prompting a Supreme Court decision on whether Trump incited an insurrection.

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However, not all legal experts agree with Baude and Paulsen’s interpretation. Lawyer James Bopp Jr., who has represented House members contesting Section 3 allegations, criticized their view as overly broad and “completely anti-historical.” Michael McConnell, a Stanford Law School professor, argues that terms like “insurrection” and “rebellion” imply larger-scale uprisings using violence and should not be diluted to include mere civil disturbances. McConnell also warns against granting partisan authorities the power to disqualify opponents from the ballot, citing concerns about undermining democratic processes.

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In a joint statement, law school deans from more than 150 law schools across the country have expressed their strong concern over the violent attack on the Capitol. Previously, leaders and politicians from around the world expressed their condemnation of the incitement of violence by an armed mob of Trump supporters. 

Calling the attack as an assault on the nation’s democracy and the rule of law, the statement terms the protests as ‘an effort to disrupt the certification of a free and fair election.’ The statement notes that the incident caused loss of lives, desecrated of the seat of democracy and shamed the country.

The statement also expresses strong concerns over the involvement of many big names in challenging the election results. Calling it as a betrayal of the values of the legal profession, the statement notes that the claims that challenged the outcome of the election were not supported by either facts or evidence. It highlights that lawyers must demonstrate respect for the values of the legal profession and emphasizes that when lawyers pursue legal action, they must do so in good faith, grounded in facts and evidence. Recently, two BigLaw partners, Cleta Mitchell and Alex Kauffman resigned from their law firm partnership after their names surfaced publicly for their participation in the controversial Trump Georgia calls.  Mitchell was a partner at Foley & Larder and Kauffman was a partner at Fox Rothschild.

Calling the incident as a moment of reflection for legal educators and members of the legal profession, the statement calls for sustained and joint efforts from members of the legal community.  It underlines the need to train the next generation of lawyers to uphold the core values of the legal profession and to sustain the rule of law.

While the statement makes it clear that the law deans do not use their position to advance any particular political view, it does call the current moment as one where their obligations demand that they speak up to defend the fundamental commitments to their profession and to support the rule of law.

Commenting on the recent attacks, Yale Law School’s Dean, Heather K. Gerken said, “I am deeply distressed by the grave concerns raised about the role of lawyers in recent events, including some who have graduated from the Law School. It is not my role as dean to comment on individual proceedings against specific graduates, but I support efforts to hold accountable any lawyer — from any law school — who fails to uphold the duties of our profession.”

Clearly, the joint statement and the views of Gerken show the serious disappointment felt by the legal fraternity over the involvement of certain lawyers in the continued legal challenges to the election results. The full list of signatories to the joint statement can be accessed here:

https://law.yale.edu/yls-today/news/message-dean-gerken-joint-deans-statement-released-today

Previously, law professors from law schools across the country issued a joint statement calling for immediate action against President Trump and suggested his removal. The statement said, “Donald Trump’s refusal to abide by the judgment of the American people has sabotaged a peaceful transfer of power from his Administration to that of President-Elect Biden. Donald Trump has violated his Oath to faithfully execute the Office of President of the United States” and to “preserve, protect, and defend the Constitution.”

The statement calls on the United States Congress Vice President Mike Pence, and the Cabinet invoke the 25^th Amendment Act and begin the impeachment process to remove President Donald J. Trump from office immediately.

The full list of law professors who were signatory to the joint statement can be accessed here: https://www.acslaw.org/inbrief/statement-of-law-professors-calling-on-the-immediate-removal-of-trump-from-office/

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What does it mean that we have a right to bear arms? The logic of the original amendment stipulated that we need guns to take on our own government, if need be. A recent poll shows that exactly the same mindset still predominates, especially among Republicans. A poll released Wednesday by Fairleigh Dickinson’s University, which TPM reported on, asked, among other things, whether those interviewed agreed with the statement, “In the next few years, an armed revolution might be necessary in order to protect our liberties.” 29 percent of Americans agreed with the statement, and 44 percent of Republicans agreed.

18 percent of Democrats also agreed with it, and less educated voters were more likely to concur. Why would so many Americans agree with what sounds like a Ted Nugent scenario? Perhaps the literalism of fundamentalists affects our take on the Constitution as well, which is the equivalent of a sacred document to Americans (“The Third Testament” one American philosopher, Mortimer Adler, called it). If we are a nation of free people, who once even considered naming the country “Freedonia,” then any laws limiting those freedoms, whether they sound reasonable or not, must be received as an attack to our central identity.

Equally troubling, if not more so, is that another question was asked on the survey: “Some people are hiding the truth about the school shooting at Sandy Hook Elementary in order to advance a political agenda.” 25 percent of those interviewed agreed with this statement, and only 41 percent disagreed, with 22 neither agreeing nor disagreeing, and 11 percent being unsure. That means that one in four Americans believes the government is manipulating major news events in order to deny our constitutional rights.

That so many Americans have images of a civil insurrection in mind, a revolution against the government, is chilling, to say the least. The survey was conducted with 863 registered voters contacted by telephone nationwide between April 22 and April 28.

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