By Ken Zino

Let me start by saying that all roads on the journey to the 2024 election lead toward the politicized U.S. Supreme Court. The State of Colorado has ruled that Mr. Trump should be taken off the 2024 Republican primary ballot because he is an insurrectionist. Four Republicans and two independents in the state brought the challenge. Colorado ruled for the ballot removal after a trial that based on evidence presented by eight witnesses -- and no defense from Trump himself -- that he provoked a violent uprising after losing the 2020 election. 

Those actions occurred before and after the election, and in fact continue to this day. Trump defense lawyer Scott Gessler said the connections the plaintiffs had drawn between Mr. Trump and groups such as the Proud Boys were incorrect because the insurrectionists had deluded themselves into thinking Trump was speaking to them. He said this was a political question. Well, it is in the sense that politics that led to the Civil War resulted in a constitutional amendment to prevent insurrectionists or their abettors from ever holding office again. 

Section 3 of the 14th Amendment: “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.” 

This will end up in the Supreme Court because this ballot eligibility question has not happened since the aftermath of our Civil War that led to the amendment. The question has therefore never been legally vetted. There are challenges to Trump ‘s ballot eligibility in dozens of states. Arguments that he is immune because he was president –- the equivalent of the divine right of kings –- are laughable. We fought The Revolution over such thinking and then wrote the Constitution to say that we will be governed differently. See the Federalist Papers. No president or any inhabitant of the United States is immune from or above the law. 

Tuesday’s hearing in Washington before a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit in my view settles the argument. Trump’s lawyer D. John Sauer argued Trump should not be prosecuted for actions he took while in the White House, Sauer claimed. This was a so-called qualified “yes” after he repeatedly tried to duck the central issue; Could a president assassinate a political rival using the military (one judge chose the Navy SEALS as the example) and be shielded from prosecution unless the Senate first convicted him at an impeachment proceeding? Suppose the president had all the members of opposing political views killed? No impeachment is possible. Absurd on the face of it and were not the issue so serious to a constitutional democracy, laughable. 

Moreover, Judge Karen L. Henderson, the only Republican appointee, dismissed Trump’s argument that his efforts to overturn his loss to the current president, Joe Biden, is immune from prosecution because presidents have a constitutional duty to ensure that election laws are upheld. “I think it’s paradoxical to say that his constitutional duty to take care that the laws be faithfully executed allows him to violate the criminal law,” Judge Henderson said. We await the final ruling.

In my own state of Michigan, Trump remains on the primary ballot (voting is February 27) after the highest Michigan court ruled that a party can put anyone it wants on the ballot. Michigan’s secretary of state, Jocelyn Benson noted in a statement that the state’s court had correctly ruled that she lacked the authority to prevent Mr. Trump from appearing on the primary ballot. However, Benson said the U.S. Supreme Court should take up the matter. “I continue to hope they do this sooner rather than later to ensure that we can move forward into 2024’s election season focused on ensuring all voters are fully informed and universally engaged in deciding the issues at stake,” the statement said. The ruling is here.

“We are disappointed by the Michigan Supreme Court’s decision,” said Ron Fein, legal director of Free Speech for People, an attorney for the plaintiffs. “The ruling conflicts with longstanding U.S. Supreme Court precedent that makes clear that when political parties use the election machinery of the state to select, via the primary process, their candidates for the general election, they must comply with all constitutional requirements in that process. However, the Michigan Supreme Court did not rule out that the question of Donald Trump’s disqualification for engaging in insurrection against the U.S. Constitution may be resolved at a later stage. The decision isn’t binding on any court outside Michigan and we continue our current and planned legal actions in other states to enforce Section 3 of the Fourteenth Amendment against Donald Trump.”

Michigan Justice Elizabeth M. Welch said that Colorado state law made clear that political parties could only put forward “qualified” candidates in a primary presidential ballot. Michigan election law includes no such requirement, she wrote. Michigan’s secretary of state “lacks the legal authority to remove a legally ineligible candidate from the ballot once their name has been put forward by a political party,” Justice Welch said.

Trump’s strategy is clear to me. Delay legal actions against him until after the election, which he thinks he can win, then misuse his power as president to make all the legal cases go away. On to the Supreme Court…