Former Vice President Mike Pence suspended his short-lived presidential campaign over the weekend, a quick and bitter end for the political effort of a man who once sat heartbeats away from the presidency but who paid a political price for standing up for the Constitution on January 6, 2021, and allowing 2020 Electoral College votes to be counted.
Pence's profile in courage on January 6 will live on beyond his political career; it was a key element of evidence Monday in a Colorado courtroom, where a group of voters wants to invoke the 14th Amendment to keep former President Donald Trump off the state's ballot in 2024.
The untested legal theory is that the post-Civil War amendment, ratified in 1868, clearly prohibits anyone who takes part in insurrection from holding public office.
The actual 14th Amendment text is clear
Section 3 Disqualification from Holding Office: No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
The 14th Amendment was invoked for the first time since the Civil War last year, when a judge in New Mexico removed a January 6 rioter and founder of the group Cowboys for Trump from his position as a county commissioner for taking part in the insurrection.
Support from legal scholars
A number of both liberal and conservative legal scholars, including the notable conservative and former federal Judge J. Michael Luttig, have endorsed using the 14th Amendment to disqualify Trump in 2024.
"All officials, federal and state, who have a responsibility to put on the ballot candidates for the presidency of the United States are obligated under the Constitution to determine whether Donald Trump qualifies to be put on the ballot," Luttig said on CNN in August.
But how would this happen?
Trump has not been convicted of any crime, and it's a good bet that neither his federal nor his Georgia criminal trials related to the 2020 election will be concluded before primary voting begins early next year. The federal trial doesn't get going until the day before Super Tuesday, the biggest night in US primaries each year, when voters from Colorado and multiple other states cast primary votes.
Is it possible Trump could just be removed from the ballot in Colorado and the few other states where these cases have been brought?
The group behind the Colorado lawsuit, Citizens for Responsibility and Ethics in Washington, argues the insurrection clause in the 14th Amendment is self-executing, but that's far from a consensus position. Others have suggested Congress would need to vote to invoke the clause against Trump. Given that Trump ally Rep. Mike Johnson of Louisiana is now speaker of the House, it's safe to assume no such congressional vote is coming. Johnson was a key congressional figure in the efforts to object to Electoral College votes after the 2020 election.
What's happening at the trial?
The case in Colorado is likely to be cheered by Democrats, but it was actually brought by Republican and independent voters.
The first day included testimony from Democratic Rep. Eric Swalwell, who described the scene as pro-Trump rioters breached the Capitol on January 6. The trial will also include testimony from legal scholars and Capitol Police officers.
CNN's Marshall Cohen has been writing about the proceedings and noted that Colorado Judge Sarah Wallace had spelled out some of the key questions for trial.
• What is the definition of "engaged" and "insurrection"?
• Did Trump engage in an insurrection?
• Is the so-called insurrectionist ban self-executing, or does Congress need to take action before a candidate is disqualified?
• Does Colorado Secretary of State Jena Griswold have the power under Colorado law to exclude a candidate from the ballot based on federal constitutional considerations?
• Does the ban apply to US presidents, or only to other officials?
Even if Wallace rules that Trump should be kept off the Colorado ballot, expect appeals, perhaps up to the Supreme Court. Trump's attorneys argue that proscribing voters from having the option of voting for the former president is itself antidemocratic, an ironic position since Trump is accused in Georgia and federal court of interrupting the democratic process.
Republican voters would clearly like to have Trump as an option – he leads in primary polling at both the national level and in early primary states.
Trump still leads in Iowa, Haley rises
CNN polling editor Ariel Edwards-Levy notes the Des Moines Register/NBC News/Mediacom Iowa Poll released Monday finds Trump taking 43% support among the state's likely caucusgoers, more than double the support of his nearest rival and essentially unchanged since August.
In the latest poll, Florida Gov. Ron DeSantis and former South Carolina Gov. Nikki Haley each take 16%, tying them for second place. Haley's support is up 10 percentage points from 6% in the previous Iowa Poll, the largest increase in support for any candidate included.
They're followed by South Carolina Sen. Tim Scott at 7%, with former New Jersey Gov. Chris Christie and entrepreneur Vivek Ramaswamy each taking 4%, North Dakota Gov. Doug Burgum taking 3%, and no other candidate above 1%.
Trump's supporters are set on him
Nearly two-thirds (63%) of likely caucusgoers who name Trump as their first choice say their mind is made up, the survey found, with 37% of Trump's backers saying they could be persuaded to support someone else. By contrast, just 30% of DeSantis supporters and 26% of Haley supporters say their minds are made up.
The common lament among anti-Trump conservatives is that the party should find a single alternative to rally behind. The conservative columnist George Will has suggested backing Haley even though his wife works for Scott. But it's also true that DeSantis and Haley, the two nearest rivals to Trump, have run very different campaigns with very different priorities. She's a strong supporter of aid for Ukraine, for instance, and DeSantis is more isolationist and wonders why the US is spending so much money there.
Biden has a new primary challenger
While Trump can applaud Pence's decision to bow out of the Republican primary, President Joe Biden gained a new long-shot challenger in Rep. Dean Phillips of Minnesota. The news comes weeks after Robert F. Kennedy Jr. announced he would run as an independent rather than a Democrat.
CNN's Edward-Isaac Dovere writes that Biden's advisers are dismissive of the Phillips challenge, but also annoyed by it.
Writes Dovere: "And that annoyance betrays the fact that some of them share the same uneasiness many Democrats feel about a president whose age is twice his approval rating."
Ouch.
Dovere distills the thinking of Biden's advisers that Democrats will ultimately come home: "… in internal meetings and phone calls with others working on Biden's reelection, they reiterate their insistence that this is all chatter that will fade once voters are faced with the choice, once again, between Biden and Trump."
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