"If the President Does It, It's Not Illegal. No, Really."

 

(By American Zen's Mike Flannigan, on loan from Ari)

Sarah B. Wallace's ruling that Trump is exempt from Article Three of the 14th Amendment is not only ridiculous and a counterintuitive reading of it but it's also theoretically dangerous. If it isn't swiftly struck down on appeal, it could set a precedent that could prejudice the cases and investigations of the other 20 states that are currently looking into whether Trump should be on their respective ballots. 

    To say that the highest office holder in the land, the president, the one who's most entrusted with safe-guarding the constitution, the person who wields the most power in the country, isn't beholden to the 14th Amendment, is fallacious. Because all indications are that he's ready, willing and able to do it again the next time he doesn't get his way.

     Because what Wallace seems to be saying is, "Yes, Donald Trump engaged in an insurrection that killed nine people, a riot that nearly overthrew the government and overturned the results of a free and fair election, But he was the president and he was free to violate his oath to defend the Constitution. It sucks but, hey, what're ya gonna do?"
     Essentially, she seems to subscribe to Nixon's belief of, "If the president does it, it's not illegal." It's that "divine right of kings" of which the Founding Fathers wanted to divest us back in the 18th century. And the 14th Amendment, including its now well-known Article Three, was written right after a Civil War that nearly destroyed or sundered our nation in half. 

     That suddenly, first ever relevant Article Three states, in full:

    "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."

    It was ratified on July 9th, 1868 by the 40th Congress to weed out Confederate sympathizers from holding elected office. It was bitterly opposed by the Senators and Congressmen who'd left the federal government in the recently-defeated Confederacy. However, if they wanted elected office in Washington again, they were essentially forced to vote for the amendment.

    In my opinion, even a schoolboy reading of the 14th Amendment, including Article Three, never mentions the president and my interpretation is the 40th Congress didn't do so because they felt they didn't need to. If you're not going to hold the Chief Executive accountable for crimes (and it was during that 40th Congress in which Andrew Johnson was nearly impeached), then what's the point of having a 14th Amendment?

 

 A Narrow Reading

Judge Wallace's ruling, which is certainly up for some spirited debate and very subject to being overturned by the Colorado appellate courts and, ultimately, the CO Supreme Court, employs a razor-thin definition of Article Three. If it doesn't specifically mention the president, she seems to argue, then the president is not subject to that Amendment.

   But on Inauguration Day, the president doesn't take an oath of office to defend some of the Constitution but all of it. The presidential oath of office is slightly different from that taken by Senators, Congressmen and other federal officials. There's more than an inference we can take that in taking that presidential oath of office, the president doesn't get to pick and choose which parts of the Constitution he will defend from all enemies, foreign and domestic (and I think we can also safely infer Trump miserably failed on both counts) any more than he has line item veto powers.

   People on the left have been crowing that this is indeed a victory because Judge Wallace also admitted that Trump did indeed engage in insurrection on January 6th, 2021. But it's not as simple as that.

   The ballot eligibility challenge in Colorado, brought by four Republican voters and two non-affiliated ones, was not a trial to determine whether or not Trump was indeed guilty of insurrection (which wouldn't be within the legal purview of a state court, anyway. That's what Jack Smith is for.). The ballot eligibility litigation was a civil matter, not a criminal one, meaning Trump stood no risk of jail time whatsoever.

    And the fact that for the first time ever he was found guilty of committing insurrection on January 6th will not, nor should not, be used a precedent by Jack Smith or anyone else. The proceedings in Colorado was not intended to be an exhaustive enumeration of evidence of Trump's guilt but to present enough evidence to the court to show that Trump was ineligible for the Colorado ballot. In other words, Trump was not on trial- his eligibility was.

     That's not the legal precedent we should be worried about.

    The one we should be worried about is the possible domino effect coming from Wallace's ruling. Perhaps this will influence other judges, especially right wing judges in those 20 other states, that perhaps Article Three really doesn't apply to Trump, after all. That maybe the guy who wields the most power in the nation should also be the one least expected to use it wisely.

     Which, obviously, is as insane as Trump and his supporters.