Experts Debate Trump’s Disqualification from Colorado Ballot at Harvard Law School Forum

Hundreds of Harvard Law School affiliates gathered in Wasserstein Hall on Thursday for a Rappaport Forum event on Trump v. Anderson. The pending Supreme Court case will decide whether Colorado can disqualify former President Donald Trump from its 2024 presidential primary ballot for his role in the Jan. 6 attack on the Capitol.

HLS Professor Jeannie Suk Gersen moderated the debate between Professor Akhil R. Amar of Yale Law School and Michael B. Mukasey, a former U.S. attorney general under President George W. Bush. Amar and Mukasey have both filed amicus briefs to the Supreme Court on opposing sides of Trump v. Anderson.

The case follows a Colorado Supreme Court ruling which barred Trump from the state’s presidential primary ballot in December. The Colorado petitioners successfully argued that Section Three of the Fourteenth Amendment — a Reconstruction-era provision to prevent former Confederates from serving in the federal government — deemed Trump ineligible for the presidency.

The Supreme Court will hear Trump v. Anderson on February 8.

“Much of this debate over Section Three is historical,” Gersen said. “People are trying to ascertain the original meaning of the provision and how it should apply outside of the post-Civil War context in which it was born.”

The debate started with the question of whether the president can be classified as an “officer” of the United States and therefore is subject to Section Three — which is known as the Disqualification Clause.

Section Three of the Fourteenth Amendment enumerates a number of positions to which the disqualification mechanism could apply, including an “officer” of the United States, but not specifically the office of the president.

Amar argued that although the presidency is not specifically named, the Fourteenth Amendment’s use of the term “officer” included the president and therefore disqualified Trump from the ballot.

Mukasey, however, said that if the authors of the Amendment wanted to include the president in the clause, they “would have done so.”

“And in fact,” Mukasey said, “there was a draft that did so, and it was stricken.”

Amar, however, said that Mukasey’s brief, “gets that pretty deeply wrong, with all due respect.”

He added that the drafters of the Fourteenth Amendment questioned why the president was not mentioned explicitly, but were satisfied that the language included the presidency.

Mukasey later argued that the Constitution excludes the president from the definition of “officers” in the Appointments, Impeachment, and Commissions Clauses of Article Two.

Later, Gersen questioned whether the debate was applying too much weight to the definition of “officers” for an “incredibly momentous” case.

In response, Mukasey defended a close analysis of the Constitution.

“‘A lot of weight to be putting on the text?’ The text is what constitutes this country,” he said. “The text is all we got.”

When Gersen questioned who would decide whether Trump engaged in insurrection, Mukasey was clear that the responsibility belonged to the Supreme Court.

“I think the Supreme Court will be the final arbiter, and should be the final arbiter of what Section Three means,” Mukasey said.

He insisted on a criminal federal conviction to determine if Trump had participated or aided in insurrection. “I would have felt more satisfied if Congress had taken its obligation to engage in serious analysis, and impeached him for what he really did,” he added.

“If we’re going to keep Trump out of office, we ought to do it the old fashioned way, by defeating him at the polls, the way it was done in 2020,” Mukasey said. “I think that is much healthier, and more hygienic, for the politics of this country,” he added.

Amar ended by commenting on the complexity of the case before the Court.

“For better or worse, we’re stuck with this version of democracy that we call the Constitution, and we have to get it right,” he said.

—Staff writer S. Mac Healey can be reached at mac.healey@thecrimson.com. Follow him on X @MacHealey.

—Staff writer Saketh Sundar can be reached at saketh.sundar@thecrimson.com.