‘This case will test America’s commitment to its democracy,’ says former judge who crafted 14th Amendment challenge against Trump

· Dec. 20, 2023, 4:33 pm
The Colorado Supreme Court and Court of Appeals building in Denver, Dec. 20, 2023.

While it will almost certainly draw scrutiny from the highest court in the land, one of the architects of the appeal that led to the decision by the Colorado Supreme Court to keep former president Donald Trump off the state’s Republican primary ballot, hailed Tuesday’s ruling as “a monumental decision of Constitutional law.”

“The opinion (of the court) was masterful and it is unassailable,” said J. Michael Luttig, a retired federal judge who worked with Citizens for Responsibility and Ethics in Washington (CREW), a group of six Republican and independent voters who filed a lawsuit asking that Trump be removed from next spring’s ballot because of his role in the January 6, 2021 insurrection in Washington, D.C.

Shortly thereafter, Luttig and Lawrence Tribe, a Harvard professor who focuses on constitutional law, theorized that Trump was ineligible to return to the presidency because his actions in 2021 violated a clause in the 14th Amendment of the U.S. Constitution that bars people who have “engaged in insurrection” against the Constitution from holding office.

Earlier in December, a lower court in Colorado ruled that while Trump did engage in insurrection, that didn’t preclude him from being placed on the primary ballot. On Tuesday, the Colorado Supreme Court upheld the first ruling and reversed the second.

Doing so, Luttig told Colorado Matters senior host Ryan Warner, ensured “this case will test America's commitment to its democracy, its Constitution, and the rule of law.”

Luttig added that while the U.S. Supreme Court may decide to allow individual states to decide who is or isn’t included on their primary ballots, it will almost certainly have to weigh in on whether rulings like Tuesday’s will keep Trump off the ballot in the 2024 presidential election.

“Unquestionably, the Supreme Court of the United States will have to decide the eligibility or the qualification of the former president for purposes of the general election,” Luttig said. “It's only a question of when the court will have to decide that.”

The following interview has been edited for length and clarity: 

Ryan Warner: What stands out to you in this 4-3 decision?

J. Michael Luttig: Yesterday's decision by the Colorado Supreme Court was historic. It was a monumental decision of Constitutional law. The opinion was masterful and it is unassailable. As my friend and colleague, Professor Lawrence Tribe, and I said in our August 2023 article in the Atlantic, this case will test America's commitment to its democracy, its constitution, and the rule of law.

Warner: It is not unanimous, and I want to note that Trump has not been criminally convicted of insurrection, and that's a fact that led one of the Colorado Supreme Court justices to dissent, quoting here, ”I recognize the need to defend and protect our democracy against those who seek to undermine the peaceful transfer of power and I embrace the judiciary solemn role in upholding and applying the law,” but Justice (Carlos) Samour writes, “That solemn role necessarily includes ensuring our courts afford everyone who comes before them due process of law.” How do you respond,

Luttig: I take that justice to be raising the question whether the 14th Amendment Section 3 is self-executing. Particularly whether it requires congressional action or at least a criminal conviction for an insurrection or rebellion against the United States or the United States Constitution. Professor Tribe and I have addressed that for many months now in our view, and we believe that this is an unassailable conclusion. Section 3 is self-executing by which is meant that congressional action is not required nor is a criminal conviction for insurrection. President Trump's supporters are claiming that it is anti-democratic for the Colorado Supreme Court to disqualify him from the primary ballot in the state. That argument too is mistaken for this reason: The Constitution of the United States tells us that his possible disqualification is not what is anti-democratic. The Constitution tells us rather that it is the conduct that can give rise to disqualification under section three that is anti-democratic.

Warner: I hear you saying, to put that differently, those who say it is a scary precedent to keep people who want to run for office off the ballot, that's not the anti-democratic behavior you should be concerned with. It is the January 6th behavior.

Luttig: It's not me saying that, Ryan, that's the Constitution of the United States. This is not politics. It is the Constitution that will disqualify the former president if he is disqualified.

Warner: The case indeed appears headed to the US Supreme Court and those justices have any number of matters to decide: Were Colorado's courts right to say Trump engaged in insurrection related to January 6th? Does section three of the 14th Amendment apply to Trump? Perhaps even questions of Colorado's jurisdiction? Is there a world in which you might imagine the US Supreme Court doesn’t take up the Colorado case at all?

Luttig: Yes there is, Ryan and there’s a sound Constitutional argument that the 50 states have the right and the power to determine the eligibility or the qualification of candidates for the presidency in their primary elections.

Warner: In that scenario then, is the US Supreme Court saying Colorado gets to do what it wants to do in terms of Mr. Trump on the GOP primary ballot, which is actually a semi-open primary because unaffiliated (voters) can take part in that as well, just noting, but that there wouldn't then be a national disqualification of Mr. Trump under Section 3 of the 14th Amendment?

Luttig: Exactly. Not in the primaries, Ryan,

Warner: And that more could be determined come the general?

Luttig: I hasten to add, if the Supreme Court were to reason in this way, then the states would be able to come to different conclusions about the former president's qualification for the ballot in the primaries. Now, this is a very technical Constitutional argument, but it's the kind of technical Constitutional argument that the Supreme Court routinely indulges in order that it not decide a profound question of Constitutional law unless it's necessary that it do so.

Warner: What would that spell for the general (election) then? In other, there would still be the question of whether Section 3 is disqualifying for the general (election), no?

Luttig: Yes. Unquestionably. The Supreme Court of the United States will have to decide the eligibility or the qualification of the former president for purposes of the general election. It's only a question of when the court will have to decide that.

Warner: When you were appointed to the federal bench by Republican George HW Bush, Judge Ludwig, could you have ever envisioned a day like this?

Luttig: Oh, certainly not, and certainly not that I would be involved in this day by virtue of the day of January 6, 2021. All of this was unimaginable, Ryan, but as I said to you before, I am honored and I have been honored to do what I've done over the past three years. I felt that I had an obligation to the country to do what I've done.

You care.

You want to know what is really going on these days, especially in Colorado. We can help you keep up.  The Lookout is a free, daily email newsletter with news and happenings from all over Colorado. Sign up here and we will see you in the morning!