Donald Trump’s new Supreme Court brief throws a bunch of arguments at the wall in the hopes one of them will stick and he can become president again. One of his claims stands out as especially silly — that he never swore to “support” the Constitution and so, his argument goes, he’s not subject to the provision disqualifying people who violate their sworn support.
His lawyers make that argument because Section 3 of the 14th Amendment applies to insurrectionist officeholders who previously swore to “support the Constitution of the United States.” Since presidents swear to “preserve, protect and defend” the Constitution, Trump argues in his brief, this section doesn’t apply to him.
You don’t have to be a lawyer to see the absurdity of the claim. In rejecting it, the Colorado Supreme Court explained that the inaugural oath is consistent with the “plain meaning of the word ‘support.’” The state justices noted that modern dictionaries and ones at the time of Section 3’s drafting both define “support” to include “defend” and vice versa.
“The specific language of the presidential oath does not make it anything other than an oath to support the Constitution,” they wrote, adding: “President Trump asks us to hold that Section Three disqualifies every oathbreaking insurrectionist except the most powerful one and that it bars oath-breakers from virtually every office, both state and federal, except the highest one in the land. Both results are inconsistent with the plain language and history of Section Three.”
So, does the weakness of Trump’s argument on this score mean he’ll lose the appeal? No. Importantly, he doesn’t need to win all of the several issues at play. He just needs to win one of them. Put differently, the voters defending the Colorado Supreme Court ruling need a complete victory to maintain their state court win — which, despite the notion that the justices will find some way to keep Trump on the ballot, isn’t an impossibility either. The voters will respond in writing by Jan. 31 and Trump can file a final reply by Feb. 5, ahead of the Feb. 8 oral argument at which we’ll get a better sense of where the justices — and Trump’s 2024 eligibility — are headed. 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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