This case is by far the most dangerous to Trump’s 2024 presidential run—but the media is missing it!

Trial begins Oct 30 in most important case

The headlines over the past week concerning Donald Trump’s legal woes have focused on developments in two of his four criminal cases. On Monday, in Trump’s federal attempted coup case, Judge Tanya Chutkan imposed a narrow gag order on Trump to restrict his verbal attacks on potential witnesses, prosecutors and court personnel. (On Friday, the judge put a temporary hold on this gag order as she considers Trump’s appeal of it.)

Later in the week, we saw a potentially very significant development in Trump’s criminal case in Fulton County, Georgia, where he’s charged with 13 felonies for his alleged efforts to overturn the 2020 election in that state. Two of Trump’s co-defendants in that case—Trump loyalists Sydney Powell and Kenneth Chesebro—plead guilty to various charges and pledged to testify for the prosecution in future cases, which could include Trump’s.

But the media is missing the case that poses the greatest threat to Trump’s candidacy. It’s not one of his criminal cases. Rather, it’s a lawsuit in Colorado that not only saw some bad news for Trump this week--but is scheduled to start trial in just one week.

This case involves a lawsuit by six Colorado voters to disqualify Trump from holding office by way of Section 3 of the 14^th Amendment for allegedly having “engaged in insurrection” and/or “given aid or comfort” to insurrectionists in connection with the Jan 6 attack on our Capitol by Trump supporters.

On Friday,  Colorado District Judge Sarah Wallace rejected three arguments by Trump’s lawyers to dismiss the case before the October 30 trial date.  One of the most powerful points the judge made was rebuffing Trump’s argument that state officials have no discretion who is placed on the ballot if a political party wants that person listed. Judge Wallace wrote in her opinion, “If the Party, without any oversight, can choose its preferred candidate, then it could theoretically nominate anyone regardless of their age, citizenship, residency.” She added, “Such an interpretation is absurd; the Constitution and its requirements for eligibility are not suggestions, left to the political parties to determine at their sole discretion.”

And Wallace—to the likely chagrin of Trump—cited in support of this point a 2012 opinion from Trump appointed Supreme Court Justice Neil Gorsuch, when he was a US Court of Appeals judge. In that case, Gorsuch wrote that states do have the legal authority to “exclude from the ballot candidates who are constitutionally prohibited from assuming office.” 

Judge Wallace did not, however, conclude that “the Fourteenth Amendment can be used to exclude a presidential candidate from the primary ballot, or that the Secretary of State is empowered to evaluate such a question.” Those issues—and others--are to be decided in the trial that begins next Monday.

This case is far more of a threat to Trump’s candidacy than his criminal cases. Why? Trump could be convicted in any of his criminal cases yet there is no constitutional prohibition that bars him from running for President. In fact, Trump could be in prison and still run--and serve as President. (Although presidential state dinners could be awkward if required to take place in the prison’s dining hall!)

However, if Trump loses this case in the upcoming trial—or any of the other similar cases filed in states such as Michigan and Minnesota-his name will not appear on the ballot in that state since he will be deemed constitutionally disqualified to be a candidate for President.  That would be fatal to his candidacy.

Before we get too excited, even legal scholars who have opined that Trump violated Section 3 of the 14^th Amendment have acknowledged that ultimately this issue must go to the US Supreme Court to give a final decision.  And that is the way it should be given the importance of this issue. But this Colorado case could be the one that makes it up to our nation’s highest court.

To those who dismiss the prospect of Trump being disqualified from the ballot, I suggest you check out the case of former New Mexico elected official Couy Griffin, who had been the head of Cowboys for Trump. A lawsuit was brought against Griffin alleging he violated Section 3 of the 14^th Amendment for his actions in connection with the Jan 6 attack. After a trial was held, the judge concluded—based on expert testimony-- that the Jan 6^th event was an “insurrection” as contemplated by the 14^th Amendment given the mob attacking the Capitol used “violence, force, or intimidation by numbers” to “to prevent the execution of one or more federal laws.”

Griffin—who was charged with trespassing but was not violent—was deemed to have “engaged” in the insurrection by his conduct of being on the Capitol grounds and cheering on the attack.  As the judge explained, “One need not personally commit acts of violence to “engag[e] in” insurrection. ... Engagement thus can include non-violent overt acts or words in furtherance of the insurrection.”

Consequently, Griffin was removed from his elected office and barred from being in the ballot in the future in New Mexico. The state’s Supreme Court rejected Griffin’s final appeal to overturn the decision earlier this year.

What Trump did in connection with the Jan 6 insurrection was far, far more damning than what Griffin did on his behalf. In fact, the ONLY reason for the Jan 6 attack was that Trump literally called his supporters to the Capitol on Jan 6—promising a “wild” time—and then directed the angry mob that morning to the Capitol to “stop the steal.” Trump did not just “engage” in the “insurrection,” he was the insurrection.

And since he left office, Trump—as I wrote about recently—has been providing “aid and comfort” to the insurrectionists. That, too, should ban him from the ballot by way of Sect 3 of the 14th Amendment.

To be clear, there is no requirement Trump has to be first convicted of a crime to be barred by the 14^th Amendment. As the non-partisan Congressional Research Service notes—there “does not expressly require a criminal conviction, and historically, one was not necessary”—based on the cases after the Amendment was enacted. 

It is clear Trump should be barred from ever holding office again. This is a man who attempted to overturn the 2020 presidential election and incited the brutal Jan 6 terrorist attack.

To those who think it’s undemocratic to ban Trump from the ballot if he is found to have violated the 14^th Amendment, I have two responses. First, it’s far more undemocratic to “engage” in an “insurrection” designed to prevent the peaceful transfer of power. And second, we can’t ignore the conditions clearly imposed on candidates set forth in the U.S. Constitution. At least, not if we want to remain a democratic Republic.

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