This is probably the most interesting legal issue I have dealt with recently, as there are so many parts to it - legal, factual, and constitutional. Also, I am very opinionated on the subject, but I am going to try to be as strictly neutral in this thread as I think I can be. There is a very good chance that the Supreme Court will find a way to avoid the question, and I have a suspicion how they will do it. But before I get to that, I thought I'd lay out what I think the issues that are included will be.
In the interim, the D.C. Circuit is going to be deciding the Immunity claim that Trump has made, and
I think that case is going to catch up and be consolidated with this one. It only makes sense.
The first Question is: Does the 14th Amendment apply to the President? If not (as the Colorado District Court held), then the case is over. This turns on the wording of the 14th Amendment itself:
Section 3 Disqualification from Holding Office
No person shall ... 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,... 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.
The argument that Trump has made is that this does not apply to the President. I think that argument is absurd, but it is just the kind of thing that can persuade a judge (or Justice). The argument turns on whether the "Presidency" is an "office" and the President an "officer" of the United States. Since the Constitution, in 25 separate instances refers to the "Office of the President", it seems pretty obvious to anyone, but there is a way out of it, because Congress members are specifically mentioned, but the President is not.
In dealing with this issue, the Colorado Supreme Court did a very careful analysis: "Section Three applies to President Trump only if (1)the Presidency is an “office, civil or military, under the United States”; (2) the President is an “officer of the United States”; and (3) the presidential oath set forth in Article II constitutes an oath “to support the Constitution of the United States.”
Without repeating all of their citations, they concluded, "our reading of both the
constitutional text and the[b]
historical record[/b] counsel that the Presidency is an “office... under the United States” within the meaning of Section Three." In that regard, they have a pretty good point.
In determining, additionally, that "the President" is an "officer" they listed "four reasons":
"First, the normal and ordinary usage of the term “officer of the United States” includes the President. As we have explained, the plain meaning of “office...under the United States” includes the Presidency; it follows then that the President is an “officer of the United States.”"
....
"Second, Section Three’s drafters and their contemporaries understood the President as an officer of the United States."
....
"Third, the structure of Section Three persuades usthat the President is an officer of the United States."
....
"Fourth, the clear purpose of Section Three—to ensure that disloyal officers could never again play a role in governing the country—leaves no room to conclude that “officer of the United States” was used as a term of art."
Finally, the Colorado Supreme Court determined that "The Presidential Oath Is an Oath to Support the Constitution", specifically because "Article VI of the Constitution provides that “all executive and judicial Officers... of the United States . .. shall be bound by Oath or Affirmation, to support this Constitution.” and that "The language of the presidential oath—a commitment to “preserve, protect, and defend the Constitution”—is consistent with the plain meaning of the word “support.” U.S. Const. art. II, § 1, cl. 8."
