The upcoming U.S. Supreme Court ruling on Trump v. Anderson, regarding Trump’s eligibility for the Colorado ballot, has broader implications.
The decision will clarify the application of Section Three of the 14th Amendment, potentially affecting politicians involved in election subversion efforts and the Capitol attack.
Donald Sherman, chief counsel for the Citizens for Responsibility and Ethics in Washington, said, “There are any number of officials who could fall under the ambit of Section Three, and if Trump weren’t running, we probably would be litigating cases against them.”
“It’s not just people on the ballot,” he continued.
“There could be people who are in office right now who might be good targets to pursue Section Three litigation,” explained Sherman.
Andrew Rudalevige, government professor at Bowdoin College and a visiting professor at the London School of Economics and Political Science, said, “You could see other officials caught up in such a ruling.”
“A lot would depend on how the court rules, and especially on how broadly it defines — if at all — ‘aid and comfort to the enemies thereof,’” added the professor.
Rudalevige asked, “At the very extreme, would real-time social media cheering for the Jan. 6 attackers count as ‘aid and comfort?’”
“It would be a tough case to make, but a very broad ruling could bring it into play,” he explained.
If the ruling favors disqualification, it could lead to challenges against various officials.
The case tests the provision’s reach, potentially disqualifying individuals who supported insurrection.
Richard Painter, former chief White House ethics lawyer, said, “Did Josh Hawley give aid or comfort? Yes. He put his fist in the air.”
“But for Josh Hawley, had he not done what he did, would the same thing have happened? Probably yes. If Donald Trump hadn’t done what he had done, it never would have happened,” he added.
“You’ll be relying more heavily on the ‘aid and comfort’ language with respect to those people,” said Painter.
“I think it’s easier to apply to Trump, because he was at the center of the whole thing,” continued the former White House attorney.
Legal scholars argue that Section Three is relevant today and could apply to those involved in the 2020 election subversion.
Norm Eisen, Obama’s ethics czar, said, “It’s an originalist argument that those key centrists on the Supreme Court should find persuasive, if they find anything persuasive.”
“It’s no slam dunk, but nobody knows how the Supreme Court is going to rule, because we’re in the rare situation of totally untrodden territory here,” explained Eisen.
Robert Ray, a member of Trump’s defense team during his first impeachment trial, said, “The argument most likely to gain traction and attract a bipartisan majority — if not unanimity — is that Section Three is not self-executing. In other words, Congress must act first.”
The outcome will set a precedent for future challenges based on Section Three, with potential congressional involvement in enforcing the provision.
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