A former conservative federal appellate judge is urging the Supreme Court to keep Donald Trump off the ballot, arguing the ex-president’s effort to cling to power after his 2020 election loss was “broader” than South Carolina’s secession from the US that triggered the Civil War.
“Mr. Trump tried to prevent the newly-elected President Biden from governing anywhere in the United States. The South Carolina secession prevented the newly-elected President Lincoln from governing only in that State,” J. Michael Luttig, a former judge on the 4th US Circuit Court of Appeals, told the justices in a friend-of-the-court brief filed Monday.
“Trump incited, and therefore engaged in, an armed insurrection against the Constitution’s express and foundational mandates that require the peaceful transfer of executive power to a newly-elected President,” the brief said. “In doing so, Mr. Trump disqualified himself under Section 3 (of the Constitution).”
Luttig has long been one of the most high-profile conservatives to argue that Trump engaged in an insurrection following his loss in 2020 and that he should as a result be barred from holding office. The former judge played a critical role in the heated fight over the certification of the 2020 presidential election, providing in a series of tweets legal ammunition to help then-Vice President Mike Pence defy Trump’s attempt to overturn the election.
The US Supreme Court agreed earlier this month to review the unprecedented decision from the Colorado Supreme Court that removed him from that state’s ballot. In a 4-3 ruling issued last month, the state court said Trump is constitutionally ineligible to run in 2024 because the 14th Amendment’s ban on insurrectionists holding office covers his conduct on January 6, 2021.
The justices in Washington are set to hear oral arguments in the case on February 8.
Monday’s brief, which was submitted on behalf of several other notable lawyers, including conservative attorney George Conway, urges the high court to examine the issue through a textualist lens – meaning they would focus specifically on the words of the disputed constitutional provision.
“Because Section 3 emerged from the hallowed ground of the Civil War, this Court must accord Section 3 its fair meaning, not a narrow construction,” the brief said.
The brief also pushes back on Trump’s argument that the 14th Amendment’s “insurrectionist ban” can only be enforced by Congress after a candidate is elected, with Luttig and the others arguing that enforcement of the provision is instead within the purview of courts.
Trump’s argument, the brief said, “would deprive voters of the ability to make a truly informed decision, because they could not know if they were voting for someone who cannot serve.”
It continued: “And it would risk chaos as courts litigate whether a newly-inaugurated President is disqualified at the same time the country needs a President to be indisputably occupying the office and making enormously consequential decisions – including as commander-in-chief, appointer of cabinet members, leader of the executive branch, vetoer of bills, etc.”
