On Dec. 19, the Colorado Supreme Court ruled former President and frontrunner for the Republican nomination Donald Trump ineligible to hold the office of president under Section 3 of the 14th Amendment to the US Constitution. This section states that no one who has taken an oath to uphold the Constitution can be eligible to hold various offices, if they have “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.” This decision, as well as an application of Section 3 by the Secretary of State of Maine, follow the attack on the Capitol that occurred on Jan. 6, 2021 in an effort to prevent the certification of the 2020 presidential election. On Feb. 8, the Supreme Court of the United States will hear a challenge to the Colorado ruling that could have national ramifications.

While both Gaughan and Granahan personally support disqualification, Gaughan will argue in their favor here, while Granahan will argue against. Both acknowledge their legal non-expertise.

For (Gaughan):

The tragic scenes of Jan. 6, 2021 have been seared forever in the minds of every patriot and lover of American democracy who witnessed them: images of rioters waving political and Confederate flags climbing the white marble and storming the halls, of crowds chasing and beating Capitol police officers, of an unhinged man with painted face and buffalo horns occupying the vice president’s seat at the head of the US Senate. As newly elected officials and elder statesmen alike were escorted to uncertain fates, insurrectionist traitors chanted for the hanging of the vice president who refused to conduct their illegal scheme to overturn the presidential election, and physically built the gallows to do the deed. To add insult to injury, their insurrection was staged at the very heart of our republic, against the shrine to self-determination completed at the insistence of President Lincoln, amid the last great rebellion against the United States.

But this event was not unprovoked. For months following the 2020 election, President Trump publicly undermined its results, refusing to concede defeat. After exhausting every legal mechanism to challenge its results, he and his team went yet further. On Dec. 14, a carefully constructed, patently illegal scheme was executed across seven states to substitute false Trump electors for the real ones recognized by their states.

On Jan. 6, the day the 538 electoral votes were legally required to be counted and certified by Congress in a session presided over by the vice president, the scheme reached its climax. Despite Vice President Pence’s refusal to ignore the law and the will of the voters in favor of these false electoral votes, President Trump demanded that his supporters “walk down to the Capitol” and “fight like hell” or “you’re not gonna have a country anymore.” He knew that members of the crowd would be armed and dangerous, and of an inflamed mindset. He did it anyway.

It's true, of course, that many of his statements were fitted with possible liability shields such as his call for his insurrectionists to “stay peaceful,” but against context, little more should be taken from these half-hearted implorations than that. He bombarded his supporters with lies of a stolen election and told them that their only reprieve was to take their battle right to Congress.

In the three subsequent hours, Trump watched on television, refusing to call his supporters off, even as members of Congress — under attack — pleaded with him to do so. He told some that perhaps the insurrectionists simply cared more about his attempted electoral subversion, while they ran and hid for their lives.

America watched in horror as its leader’s acolytes rebelled against its institutions and then sat back to watch his insurrection unfold. He groomed them to fight, called them to the Capitol, and set them loose. Even those who argue that — somehow — he could be anything but the inciter of the Jan. 6 Insurrection must admit that his reluctance to defuse it and words of support constituted engagement therein, and aid and comfort to these self-positioned enemies of our republic. He is thus rendered ineligible to serve as an “officer of the United States.” On this matter, the Colorado Supreme Court rightfully observed through historical review that the presidency easily and obviously fits within this category. It is therefore imperative that — in the interest of upholding the binding, sanctified nature of our Constitution, and protecting the continuance of American democracy from the menace who tried to undo it — Donald J. Trump is ineligible to run for, or serve as, President of the United States.

Against (Granahan):

Donald Trump’s presidency can be described, in many ways, as an anomaly. The lack of faith in elections that Trump has introduced to the American political system is one such example. As of Jan. 2024, fewer than one-third of Republicans believe that Joe Biden legitimately won the 2020 presidential election. Despite the widespread belief among opponents of Trump that his recent criminal indictments would be the nail in the coffin for his political career, these charges have so far only served to inflame his voters. It is not a stretch to say that Trump’s supporters may well view his disqualification in a similar light, which will only propel him to victory in 2024.

Although it is absolutely within reason to infer that Trump’s incitement of insurrection on Jan. 6, 2021 makes him ineligible to hold the office of president under Section 3 of the 14th Amendment, the vague wording of this provision raises enough questions to create doubt in the legality of such a disqualification. For one, Section 1 of the aforementioned 14th Amendment states that “no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States [...] without due process of law.” The ability to hold political office could be considered a privilege or immunity, and for all of Trump’s reprehensible conduct during the attack on the Capitol, he has not been found guilty of inciting this attempted insurrection, and thus has arguably not experienced the due process of law for this crime.

Moreover, while Section 3 does not specify which institutions in the U.S. government can or cannot declare a candidate ineligible to hold political office for incitement to insurrection, it does hold that “Congress may by a vote of two-thirds of each House, remove such disability.” If Congress in particular is tasked with removing a candidate’s ineligibility to hold office, one could infer that, by extension, those who drafted the 14th Amendment intended for Congress to also be responsible for instituting the same ineligibility. This would mean that Congress, not any state government, must declare Trump ineligible to hold office under Section 3.

Although it may seem like the most trivial of legal questions surrounding Trump’s disqualification under the 14th Amendment, the dispute over who constitutes “an officer of the United States” in taking an oath to uphold the Constitution was actually the primary point of contention in the Colorado case. Prior to the Colorado Supreme Court’s ruling, a Colorado district court found that Trump had incited an insurrection on Jan. 6, but also held that a president is not an officer of the United States and therefore is not necessarily subject to Section 3 of the 14th Amendment.

It is entirely possible that all of these legal questions will be answered in a way that upholds Trump’s disqualification, but removing the former president from the ballot will not remove his ideology from the hearts and minds of his many supporters. Trumpism has already bred a disregard for democratic values, and with so many legal questions up in the air, a disqualification would almost certainly fan these flames. Regardless of whether or not Trump’s supporters react to his disqualification with violence, as some did to his defeat in the 2020 election, nothing can definitively prevent a Trump-like Republican from taking advantage of the outrage at the electoral process, and contributing to the democratic backsliding that has occurred since 2016. Instead, Donald Trump should be defeated at the ballot box in 2024. To use one of the former president’s favorite terms, this is perhaps the only way for the former president’s supporters to finally be convinced that Trumpism is the ideology of a loser.