Never Trump Judge Reacts to 14th Amendment Disqualification Criticism – A Never Trump Republican judge who penned a column in The Atlantic together with liberal former Harvard Law Professor Lawrence Tribe arguing that the 14th Amendment to the U.S. Constitution disqualifies Donald Trump from a second term defended his position in an interview with MSNBC.
“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,” retired Federal Judge Michael Luttig said. “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.”
The Colorado case will be decided before Thanksgiving.
The judge in the case has implied that she might be inclined to decide against the president.
Colorado’s Democrat Secretary of State, Jena Griswold, is on the record claiming that what happened on Jan. 6, 2021, was an “insurrection.”
Not everyone is convinced.
Dershowitz Disputes Luttig’s Interpretation
Former Harvard Law Professor Alan Dershowitz, who defended Trump in his first impeachment trial, countered that no one other than the president himself is competent to decide if an insurrection occurred.
“It was fairly evident who participated in the Civil War on the part of the South. No formal mechanism was needed for making that obvious determination. If the disqualification had been intended as a general rule applicable to all future elections, it would have been essential to designate the appropriate decision maker, the procedures and the criteria for making so important a decision,” Dershowitz wrote. “In the absence of any such designation, it would be possible for individual states to disqualify a candidate, while others qualify him. It would also be possible for the incumbent president to seek to disqualify his rival, or for a partisan congress to do so. There is no explicit provision for the courts to intervene in what they might regard as a political question.”
Constitutional Crisis Likely if Donald Trump Disqualified
Dershowitz also warned that removing Donald Trump from the ballot would trigger a constitutional crisis, one that Luttig and those who agree with him apparently want.
Minnesota Supreme Court Chief Justice Natalie Hudson appeared to agree with Dershowitz’s reasoning during deliberations over excluding Trump from the ballot in her state.
“Let’s say we agree with you that Section 3 is self-executing, and that we do have the authority under the relevant statute to keep Mr. Trump’s name off the ballot. Should we – is the question that concerns me the most,” Hudson said.
Associate Justice Barry Anderson called it a “political” question that federal courts have thus far tried to avoid and questioned why the state should accept the argument.
Luttig Calls on SCOTUS to Decide Case
Luttig argues that the U.S. Supreme Court has already passed on deciding the 14th Amendment question and will now have to determine the issue.
“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,” Luttig said. “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.”
Luttig shifted his argument to claim that the former president’s effort to stay in power and overturn the 2020 election violated the Executive Vesting Clause of the Constitution.
“As a consequence, there’s no doubt in my mind that absolute immunity does not extend to the former president for that conduct. I am as confident as I am of anything that, were this case to make its way to the Supreme Court, the Supreme Court would so hold,” Luttig said.
However, the political nature of case would make it highly unlikely that the U.S. Supreme Court would intervene should Trump beat back the challenges to his place on the ballot.
John Rossomando is a defense and counterterrorism analyst and served as Senior Analyst for Counterterrorism at The Investigative Project on Terrorism for eight years. His work has been featured in numerous publications such as The American Thinker, The National Interest, National Review Online, Daily Wire, Red Alert Politics, CNSNews.com, The Daily Caller, Human Events, Newsmax, The American Spectator, TownHall.com, and Crisis Magazine. He also served as senior managing editor of The Bulletin, a 100,000-circulation daily newspaper in Philadelphia, and received the Pennsylvania Associated Press Managing Editors first-place award for his reporting. He writes opinion articles for this publication.
