Among the points backing Donald Trump’s argument that the 14th Amendment doesn’t disqualify him from office is one that, at first glance, is a mix of laughable and disturbing: He never took an oath to “support” the Constitution.
Why would the former president emphasize such a thing? That’s because Section 3 of the amendment disqualifies insurrectionists who have “previously taken an oath … to support the Constitution.” Thus, the argument goes in his Colorado Supreme Court appeal, he’s eligible for the presidency again in 2024 because he swore to “preserve, protect, and defend” the Constitution, not support it.
It’s a level of hairsplitting that seems absurd, and perhaps it is. But his lawyers actually didn’t make it up. Indeed, in District Judge Sarah Wallace’s ruling earlier this month, aspects of which are being attacked by both sides, she ultimately rejected the challenge to Trump’s eligibility based partly on that same idea. She found that Trump engaged in insurrection but that the constitutional provision at issue doesn’t apply to presidents.
The voters who brought the case have countered in their own brief to the state’s top court that protecting Trump from disqualification on that basis is counterintuitive. The “natural reading” of “oath to support the Constitution,” they wrote, “includes the stronger Presidential oath to ‘preserve, protect, and defend the Constitution.’” More broadly, they argued the “common sense” point that there would be “no reason to allow Presidents who lead an insurrection to serve again while preventing low-level government workers who act as foot soldiers from doing so.”
We should get a better sense of which side may prevail when the state Supreme Court hears argument in the case on Dec. 6. Subscribe to the Deadline: Legal newsletter for weekly updates on the top legal stories, including news from the Supreme Court, the Donald Trump cases and more.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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