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Former GOP governors file brief in support of disqualifying Trump

Some legal scholars, and the former governors who filed the amicus brief Tuesday, say the 14th Amendment should apply to the former president.
Former GOP governors file brief in support of disqualifying Trump
Posted at 6:40 PM, Jan 31, 2024
and last updated 2024-01-31 19:40:29-05

A group of former Republican governors filed an amicus brief with the U.S. Supreme Court Tuesday in support of a Colorado Supreme Court decision disqualifying former President Donald Trump from appearing on the ballot for president in that state.

Former GOP governors Marc Racicot of Montana, William Weld of Massachusetts, and Christine Todd Whitman of New Jersey say in an amicus brief their objectives are not partisan, but patriotic.

Dozens of similar cases have been filed across the United States that aim to ban Trump from the presidency under Section 3 of the 14th Amendment, adopted after the Civil War to stop former Confederates from returning to office. Colorado's case is the only to survive the legal test so far, but Trump appealed the ruling.

This will be the first time in U.S. history the high court will rule on a case related to the 156-year-old clause. The court is set to hear arguments next week.

Some legal scholars, and the former governors who filed the amicus brief Tuesday, say the same amendment should apply to the former president for his role in trying to overturn the results of the 2020 presidential election and the attack on the Capitol by his supporters on Jan. 6.

In the amicus brief, they argue that "The fact that Section 3 of the Fourteenth Amendment has not previously been applied to a presidential candidate does not diminish the materiality or the clarity of the constitutional mandate."

"Never before has our nation seen a President incite an insurrection to disrupt the peaceful transition of power and entrench himself in office, much less then, after his insurrectionist efforts failed, later seek to recapture the presidency," they write.

"This being a question of first impression does not, in any way, reduce the threat posed to the survival of our constitutional republic by a conclusion that the President of the United States may engage in, incite, and endorse domestic insurrection with impunity."

An effort similar to Colorado's failed in Illinois Tuesday, with the state election board keeping Trump on its primary ballot. The board ultimately decided the courts should make the final decision, saying it didn't have the authority to make a judgment on Constitutional grounds.

Still, in the Illinois case, election board member Catherine McCrory said, "I want it to be clear that this Republican believes that there was an insurrection on Jan. 6. There's no doubt in my mind that he manipulated, instigated, aided and abetted an insurrection on Jan. 6."

Trump attorney Adam Merrill told the group, "We would recommend and urge the board to not wade into this." 

In Maine, a ruling by the secretary of state that Trump is ineligible for office is on hold until a decision comes down from the Supreme Court.

Trump's attorneys have argued that the provision of the 14th Amendment is vague and unclear and that Jan. 6 doesn't meet the legal definition of an insurrection. Even if it did, they argue that Trump was simply exercising his First Amendment rights to free speech and isn't liable for what occurred, and that the ban on holding office shouldn't apply to presidents.

The amicus brief filed Tuesday by the former governors calls the Disqualification Rule in Section 3 "unmistakably clear," saying it "plainly commands that a President who has sworn 'to preserve, protect, and defend' the Constitution and then betrays that oath by engaging in insurrection against the Constitution is forever barred from serving in office again, unless the disqualification is 'removed' by a supermajority vote of both houses of Congress."

Further, the brief says public record shows Trump received legal advice warning him that what he sought to do on Jan. 6, 2021 violated the Constitution.

Though Trump has blamed President Biden for the lawsuits because several have been filed by liberal nonprofit groups, there is no evidence the president was involved. On Tuesday, before the Illinois ruling, President Biden said he didn't have a problem with Trump being on presidential ballots. President Biden made the comment in response to a reporter's question before flying to Florida for campaign fundraising.

In the amicus brief, filed with the high court Tuesday, Govs. Racicot, Weld and Whitman say in Colorado and Maine, "appropriate investigations and adjudicatory proceedings have ensued, providing due process at every stage."

The brief says the former governors say they have "individually sworn their fealty and faithfulness to the U.S. Constitution."

As such, they say they, "recognize that uncompromising adherence to this requirement is essential to the continuing survival of our republic." And they note the Supreme Court justices "have all also sworn such an oath."

The governors urge the justices "to reflect ever so carefully and vigilantly on the meaning, power, and import of these oaths."

Racicot served as Montana Governor from 1993 to 2001, after serving one term as Montana's Attorney General. He later went on to serve as chair of the Republican National Committee.

Weld held the Massachusetts Governor's office from 1991 to 1997. Before that, he was assistant attorney general leading the Criminal Division of the U.S. Dept. of Justice and also served as the U.S. Attorney for Massachusetts.

Whitman was Governor of New Jersey from 1994 to 2001, when President George W. Bush appointed her as administrator of the Environmental Protection Agency.

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