The lawsuit to remove former President Donald Trump from the ballot in Colorado heard oral arguments in the state Supreme Court last week. However, according to legal expert Robert Delahunty, the case’s allegations sit on faulty legal grounds.
The lawsuit, filed by left-wing group Citizens for Responsibility and Ethics, alleges that Trump is ineligible for presidential office after engaging in insurrection on Jan. 6, 2021. However, even though the Denver District Court judge determined that Trump “engaged in insurrection” under its meaning in the 14th Amendment, she also ruled that the insurrection law in question doesn’t apply to the former president.
Trump’s candidacy is allowed to continue for now after the case against him failed in the Denver District Court last month. However, the case was appealed to the Colorado Supreme Court, and it will most likely be appealed again to the United States Supreme Court.
Delahunty, Trump’s lawyer in the Colorado case and the mastermind behind his district victory, offered his analysis recently in an online briefing hosted by the Claremont Institute.
Trump won in district court because of Section 3 of the 14th Amendment, which brought into question whether the claims against the former president even apply to him. The section bars any officer of the United States who has engaged in insurrection from holding office. However, under the appointments clause, only those who are appointed to federal office are considered officers of the United States. Because the president is elected rather than appointed, the court decided that the section doesn’t apply to Trump.
“It took Congress months and months to draft Section 3. It was debated. It was discussed nationwide — every term — and it had a particular valence. It was drafted and then ratified against the backdrop of the original Constitution…” Delahunty said. “This language is recycled and used again in Section 3 in the same meaning that it had elsewhere. Under that language, the president is an officer of the United States and does not take out an oath to support the Constitution of the United States.”
The media rushed to accuse the court of misreading the section or arguing the founders accidentally left out the president. Delahunty said these arguments are out of the question. Multiple constitutional examples confirm the difference between officers and the president.
“It’s just impossible to believe that the framers of Section 3 failed to include the president. It’s just impossible. I’ve read so many op-eds that say that ‘it’s obvious, it’s obvious’…” Delahunty said. “It’s not obvious to anybody who reads the language of the Constitution.”
The oath taken by officers of the United States written in Section 3 includes the phrase “support the Constitution.” In contrast, the presidential oath requires the president to “preserve, protect and defend the Constitution of the United States.” It does not include the word “support.” When President Donald Trump said he never took an oath to support the Constitution, the media reacted with shock and horror. But he was correct.
In another example, the Constitution’s article of impeachment states, “The President, Vice President and all civil officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” Here, the president is again identified separately from “all civil officers” of the United States.
Trying to unravel language used in the Constitution to determine the meaning in other clauses — which Delahunty did here using the appointments clause, the impeachment clause, and the provisions clause — is a commonly used legal strategy known as intertextual analysis.
“The framers understood that this is a really important thing,” Delahunty said. “So they fashioned language, against the backdrop of centuries, of thinking about what is to be put in the oath when the head of state takes [it].”
Determining the applicability of this law was only the first obstacle Trump needed to overcome. If the case reaches the Supreme Court of the United States, Delahunty said the case will likely focus on whether former President Trump engaged in insurrection, at which time his argument will be tested.
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