IE 11 is not supported. For an optimal experience visit our site on another browser.

The absurd claim that Trump hopes keeps him on the ballot

The former president is arguing that the 14th Amendment ban on insurrectionists holding office doesn't apply to former presidents.


There are many issues that the Supreme Court can address at Thursday’s hearing over Donald Trump’s presidential eligibility. But there’s one that Trump himself focused on in his final reply brief this week: the argument that the president isn’t an “officer of the United States” who’s subject to disqualification under Section 3 of the 14th Amendment. 

It’s not a strong claim — and its implications are absurd — but it’s worth understanding heading into the oral argument, because Trump’s counsel apparently thinks there’s something to it. Indeed, he may think that it’s the best shot at staying on the ballot.

As you’ll see from the text of Section 3, it doesn’t specifically mention presidents: 

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.

From that absence and the way the term “officer of the United States” is used elsewhere in the Constitution, Trump’s lawyers argue that the disqualification clause therefore doesn’t cover presidents. It would amount to a Trump-specific exception, because every other former president besides George Washington previously swore a constitutional oath in holding state or federal office.

But in the ruling under review, the Colorado Supreme Court rejected that position for four reasons. First, because the normal and ordinary use of the term “officer of the United States” includes the president. Second, because Section 3’s drafters and their contemporaries understood the president to be such an officer. And third and fourth, the state court cited both the structure and purpose of the section. On the latter point, the justices wrote that it would be “flatly unfaithful to the Section’s purpose” to let a former president who broke his oath not only participate in the government again but “run for and hold the highest office in the land.”

Likewise in their high court brief, the voters who brought the case wrote that “given Section 3’s focus on insurrectionist leaders, it would make no sense to read Section 3 as disqualifying all oath-breaking insurrectionists except the one holding the highest office in the land.” 

The amicus briefs from outside groups that have lined up to further demolish Trump’s claims also make clear that Section 3 covers presidents. To take one example, historians with expertise in the Civil War era that produced that provision explained to the justices how congressional debate from that time “demonstrates directly that backers of the 14th Amendment included the Presidency.” 

Despite all of that, will the Supreme Court nonetheless rule for Trump on that ground and condone the election of insurrectionist presidents?

Thursday’s hearing should indicate what the justices are thinking about this and other issues. If the court is looking for a way to rule in Trump’s favor that settles the eligibility matter nationwide — as opposed to a ruling focused on Colorado-specific procedure — then the “officer” issue could be an attractive one. But to reach that result, the court would need to go against history and common sense. That this result may be Trump’s best hope, or even one of them, shows that he has his work cut out for him — as do the justices, if they're intent on overturning the Colorado ruling in a way that settles the issue nationwide.

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.