Retired conservative judge J. Michael Luttig says the Colorado Supreme Court is correct in keeping Trump off the ballot in 2024

The Colorado Supreme Court ruled yesterday that Donald Trump will not appear on the ballot in 2024 because he is an insurrectionist and the 14th Amendment does not permit insurrectionists to hold federal office. Some of you may recall our August 2023 post on this matter. Both J. Michael Luttig, a retired George W. Bush-appointed federal judge whose judicial philosophy has drawn comparisons to the late Antonin Scalia, and Harvard law professor Laurence Tribe (who taught constitutional law to Supreme Court Justices John Roberts and Samuel Alito), believe that Section 3 of the 14th Amendment disqualifies Trump.

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Jordan Rubin: Judge, you’ve been thinking a lot lately about this 14th Amendment issue. Why is it so important to democracy, in your view?

J. Michael Luttig: Section 3 of the 14th Amendment … disqualifies any person who, having taken an oath to support the Constitution of the United States, thereafter engages in an insurrection or rebellion against the Constitution of the United States, disqualifying that person from holding high public office in the future, including the presidency. So it’s more than just a proscription and disqualification for anti-democratic conduct by an individual, but, in this circumstance, it is that and it would apply in this instance to disqualify the former president from holding the presidency again, because of his effort, plan and attempt to overturn the 2020 presidential election, knowing that he had lost that election to then-candidate Joe Biden. This is very, very important: Section 3 disqualifies one who has engaged in insurrection or rebellion against the Constitution of the United States, not an insurrection or rebellion against the United States, or the authority of the United States. And so that’s the issue in Colorado and in Minnesota, and in the other states that are currently involved in the constitutional process to determine whether the former president is disqualified.

JR: What do you think of criticism that suggests it’s wrong to keep Trump off the ballot using this process, as opposed to “letting the voters decide,” as a critic would say?

JML: I have seen that criticism, if you will, of applying Section 3 to the former president. And it concerned me because it’s a legitimate question to be asked. But I’ve responded publicly to that concern by explaining that the disqualification that’s provided for under Section 3 is not itself anti-democratic at all. Rather, it’s the conduct that can result in disqualification under the 14th Amendment that the Constitution says is anti-democratic. So there’s no question whatsoever that disqualification of an individual who satisfies the conditions of disqualification in Section 3 is not anti-democratic. Again, it’s the conduct that gives rise to disqualification that the Constitution tells us is anti-democratic.

JR: Sometimes when I’ve heard these criticisms, it almost sounds like more of a criticism against the Constitution itself — sort of a problem with having the ability to take someone off the ballot — more than an application of it.

JML: That’s exactly the way to think of it. And another way of saying it is: it is the Constitution itself that provides for disqualification. So there’s no possible way that the Constitution itself can be understood as anti-democratic.

JR: As you mentioned, we have these cases that are playing out across the country. Whatever happens in Colorado, Minnesota, Michigan or wherever else, the issue has to get to the Supreme Court somehow, doesn’t it?

JML: It does. This is the process contemplated by the Constitution. And the Constitution likewise contemplates that this decision will ultimately be entrusted to the Supreme Court of the United States, which will interpret the language, the clear language, of Section 3, and decide whether or not the former president is disqualified.

JR: To ask the natural follow-up, do you have any inkling about how the Supreme Court might look at this issue?

JML: I would only say this: All that any of us are able to do is evaluate the positive, objective law — in this instance, the Constitution and Section 3 of the 14th Amendment. Under the plain, clear terms of Section 3, the former president would be disqualified from holding the presidency again — specifically, for the reason that his plan and effort and attempt to overturn the 2020 presidential election and remain in power, notwithstanding that the American people had voted to confer the powers of the presidency on Joe Biden, constitutes a clear violation of the Executive Vesting Clause in the Constitution, which prescribes that a president will hold office for only a four-year term, unless and until he is re-elected to the presidency by the American people. The former president’s effort to overturn the election and remain in power is precisely what constitutes a rebellion against the Constitution of the United States.

14th Amendment, Section 3:

No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

The provision only applies to persons who, having previously taken an oath,

(1) as a member of Congress, or

(2) as an officer of the United States, or

(3) as a member of any state legislature, or

(4) as an executive or judicial officer of any state,

Trump was never any of those. An officer of the United States is an individual in a position appointed by the President of the United States. The President is not an appointed official and is not an officer of the United States. The term is a legal term with a specific definition.

The provision of the 14th Amendment does not apply to Trump, regardless of whether he committed insurrection or not. There was no insurrection, but Scotus need not decide that point. All they need decide is that the Amendment clause does not apply to Trump.

Article II, section 2, clause 2 of the U.S. Constitution, known as “the Appointments Clause,” states how federal officers must be appointed.

[The President] "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments."

https://www.loc.gov/item/usrep561477/

Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U.S. 477, 497-98 (2010), Roberts, CJ, Opinion of the Court

The diffusion of power carries with it a diffusion of accountability. The people do not vote for the “Officers of the United States.” Art. II, § 2, cl. 2. They instead look to the President to guide the “assistants or deputies . . . subject to his superintendence.” The Federalist No. 72, p. 487 (J. Cooke ed. 1961) (A. Hamilton). Without a clear and effective chain of command, the public cannot “determine on whom the blame or the punishment of a pernicious measure,or series of pernicious measures ought really to fall.” Id., No. 70, at 476 (same). That is why the Framers sought to ensure that “those who are employed in the execution of the law will be in their proper situation, and the chain of dependence be preserved; the lowest officers, the middle grade, and the highest, will depend, as they ought, on the President, and the President on the community.” 1 Annals of Cong., at 499 (J. Madison).

The People do not vote for Officers of the United States; they are appointed by the President.

The Colorado Kangaroo Court concludes:

But we stay our ruling until January 4, 2024 (the day before the Secretary's deadline to certify the content of the presidential primary ballot). If review is sought in the Supreme Court before the stay expires, it shall remain in place, and the Secretary will continue to be required to include President Trump's name on the 2024 presidential primary ballot until the receipt of any order or mandate from the Supreme Court.

Pinging AC because you might be in a position to remember how Luttig was lauded on FR back in the early 2000s.

We have to remember that Luttig is American nobility.

A young swarthy peasant named Napoleon Beazley [17 years old] killed "Lord" Luttig's father in a robbery.

Beazley's biggest surprise in life came in the form of his swift death - 8 years.

The system gave Beazley the bum's rush to the needle in 2002 - eight years, where an ordinary peasant family would have to wait decades to see justice done. "Four legs good, two legs better!"

In 2005, the Supreme Court (in Roper v. Simmons) banned the practice of executing offenders who were under the age of 18 when they committed their crimes.

Just a little too late for young Napoleon...

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.