The Efforts to Keep Trump Off the Ballot

Former President Donald Trump in New York on October 3, 2023. (Photo by Fatih Aktas/Anadolu Agency via Getty Images)

Happy Collision day! Let’s get right into it.

The Docket

  • Two of Donald Trump’s sons, Donald Trump Jr. and Eric Trump, testified this week in their father’s ongoing civil fraud trial in New York. Both claimed they were not involved in drafting their father’s financial statements—despite Don Jr.’s signature appearing on multiple statements of Trump’s financial condition. In its lawsuit against the Trump Organization, the New York Attorney General’s office has argued that Trump, his two older sons and his daughter Ivanka, and several other co-defendants worked together to inflate Trump’s wealth in order to secure better loan terms for the company.
  • The former president is certainly testing the limits of his gag order in his D.C. election interference trial, which Judge Tanya Chutkan reinstated on Sunday after pausing it nine days earlier. “REMEMBER, CROOKED JOE BIDEN AND HIS RADICAL LEFT THUGS WAITED THREE YEARS TO BRING THESE INDICTMENTS & LAWSUITS AGAINST ME,” Trump posted on Truth Social on Halloween. “RIGHT IN THE MIDDLE OF MY CAMPAIGN!” It was Trump’s reference last month to special counsel Jack Smith as a “thug” (among other epithets) that partially inspired Chutkan’s gag order, in which Trump is barred from “targeting” Smith, other federal prosecutors, court officials and staff, and witnesses. It’s hard to interpret Tuesday’s post as referring to anyone but Smith and his team, but Chutkan has not yet taken action with any additional fines.
  • Hunter Biden published an op-ed in USA Today on Thursday going after Republicans for the “political weaponization” of his drug addiction. The son of President Joe Biden decried Republicans for what he labeled a “sustained disinformation campaign” against his father and an “all-out annihilation” of his reputation.

On Trump and the 14th Amendment Cases

Courts in Colorado and Minnesota are hearing arguments this week about whether Donald Trump should be barred from appearing on the ballot in those states because he is constitutionally disqualified from serving as president. The proponents of keeping Trump off the ballot are citing, of all things, the 14th Amendment, one of the three post-Civil War amendments to the Constitution and the focus of some of the most consequential constitutional litigation in American history. 

Without writing our own law review article, let’s highlight some of the arguments underpinning this effort to use the courts to keep Trump out of the White House. The claim is that Section 3 of the 14th Amendment prohibits Trump from holding office because of his efforts to overturn the results of the 2020 election. So let’s start with that portion of the Constitution: 

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.

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