The Michigan secretary of state, Jocelyn Benson, had a thoughtful column on The Washington Post website about a topic that’s been getting more attention lately: Did former president Donald Trump’s actions on Jan. 6, 2021 disqualify him from running for office under the 14th Amendment to the Constitution?
The amendment got added after the Civil War in order to keep former Confederate leaders out of the American government. It says in part that no one is eligible for public office if they “shall have engaged in insurrection or rebellion against the (United States), or given aid or comfort to the enemies thereof.”
Trump’s critics say he fits that description perfectly. His defenders note that he never came close to the U.S Capitol on Jan. 6.
Benson, a Michigan Democrat, says that people who want Trump kept off the 2024 presidential ballot are looking to the wrong group if they expect 50 secretaries of state to make that decision as part of their responsibility to manage elections.
“Whether Trump is eligible to run for president again is a decision not for secretaries of state but for the courts,” she wrote in the column. And she is correct.
If a 14th Amendment challenge to Trump’s eligibility to run for a second term is to have any credibility at all, it will have to be delivered by the U.S. Supreme Court.
This could never come from 50 secretaries of state. How might they decide? Here’s a guess: The Republican secretaries of state would say Trump is eligible to run next year, while the Democrats would say he is not.
In the same manner, the likelihood is slim to none that all state courts would reach identical conclusions in such a case.
Benson’s column points out that “the precise legal definition of the wording in the 14th Amendment” has not been determined.
How should “engaged in insurrection or rebellion” be defined? What does giving aid or comfort to the enemies of the United States specifically mean?
There’s a massive gray area. Trump did call protesters to Washington on Jan. 6 and encouraged them to march to the Capitol that day. Is that engaging in insurrection? Or giving aid and comfort to America’s enemies?
Benson wrote that until a court tells her otherwise, Trump will remain on Michigan’s ballot for the Republican presidential primary next February.
This debate really is a textbook example of why the Founding Fathers created a judicial branch of the federal government, with powers equal to those of the executive and legislative branches. Courts specifically have the authority to decide important disputes.
Ultimately, the U.S. Supreme Court must have the last word, as it did in the 2000 election recount between George W. Bush and Al Gore.
Jack Ryan, Enterprise-Journal
