In a spirited exchange on CNN this morning, legal analyst Elie Honig critically refuted arguments presented by a CNN pundit regarding former President Donald Trump’s potential disqualification from future office under the 14th Amendment.
Today, a Denver court has begun hearings to decide if former President Donald Trump should be excluded from Colorado’s 2024 election ballot.
Opening the discussion, CNN’s John Avalon expressed his optimism about holding Trump to a higher standard given his status as a former president. He argued that if proven guilty in Colorado, this suit could prevent Trump from appearing on future ballots.
“It’s not a dead letter, but enforced, saying basically: he took an oath to uphold the Constitution, and if you participated in or gave aid and comfort to an insurrection or rebellion, you are disqualified from holding any office, civil or otherwise,” Avalon said.
Honig, however, pointed out that neither Congress nor the Constitution provided clear guidelines on how to enforce this amendment. “The great thing about John Avalon is he paints a picture of how things ought to be in an ideal world. I would say, ‘I agree; that would be lovely.’ However, I’ve been coming in to say, ‘But here’s why it’s not going to work that way.'”
“Neither the Constitution nor Congress, in the one hundred fifty years since that amendment was passed, has clarified how this works,” Honig explained. “The problem is, you can’t just make it up now and apply it retroactively. Some scholars argue it’s ‘self-executing.’ What does that even mean? Clearly, someone has to enforce it. Why do you think we’re having legal debates in Colorado right now?”
Brought forward by six voters, the lawsuit references Section 3 of the 14th Amendment, suggesting Trump be deemed ineligible for upcoming elections due to his purported role in the Capitol breach of Jan. 6, 2021. The plaintiffs argue Trump breached his official oath in his endeavors to reverse the 2020 electoral outcome.
Adopted in 1868, Section 3 of the 14th Amendment states:
“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.”
In simpler terms, Section 3 disqualifies individuals from holding certain offices if they have previously sworn an oath to support the U.S. Constitution and then subsequently engaged in or supported insurrection or rebellion against the U.S.
The section was originally intended to prevent former Confederate officials and military officers from returning to positions of power after the Civil War, but its provisions are still part of the Constitution and can theoretically be applied today.
“The uncertain part is the decision of the state-level judge in Colorado. If she rules against Donald Trump, I can foresee two outcomes. First, there will be a significant political backlash that will likely favor Trump. If an unelected state judge decides to remove a major candidate from the ballot, it will disenfranchise millions of voters. Such a move would be perceived as the judge saying, ‘You can only vote for Joe Biden, as I’ve personally determined that Donald Trump committed insurrection,'” Honig argued.
“Secondly, any such decision is likely to be overturned on appeal. Even if the initial judgment goes against Trump, the case would move through the judicial system in Colorado and possibly into federal court.”
Colorado’s Judge Sarah Wallace recently overruled Trump’s motion to throw out the case, countering his claim that only Congress holds the power to settle ballot eligibility disputes. Trump is confronted with similar legal battles in other states including Minnesota, New Hampshire, Arizona, and Michigan.