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Trump’s Latest Legal Defense: He Didn’t Take Oath to “Support” the Constitution

The Colorado Supreme Court is weighing whether to bar Trump from appearing on the state ballot next year.

Former President Donald Trump yells to the crowd before delivering remarks during a campaign event on November 11, 2023, in Claremont, New Hampshire.

Lawyers for former President Donald Trump filed a brief with the Colorado state Supreme Court this week arguing that a constitutional provision that would disallow him from being able to run for the presidency again in 2024 should be ignored because, as they put it, he never made an oath, as president, to “support” the Constitution.

The argument is one of semantics, as the president of the United States is sworn in through a different oath than members of Congress or other government officials.

Article II of the U.S. Constitution requires presidents-elect to read an oath promising to “preserve, protect and defend” the document as they are being sworn into office.

Six residents in Colorado sued to have Trump barred from being able to appear on the state ballot next year as a candidate for president, citing Section 3 of the 14th Amendment — sometimes known as the insurrectionist clause — as their basis for doing so. That provision states that no person can be elected to any office within the United States if they have served in a position where they “previously [took] an oath … to support the Constitution” while subsequently engaging in “insurrection or rebellion” or giving aid or comfort to those who have engaged in such activities.

Because the language of the amendment says “support” rather than any of the words used in the presidential oath of office, Trump’s lawyers contend the provision doesn’t apply to him. The former president’s lawyers claim this difference in the language was “purposefully” created by the authors of the amendment.

“Section Three does not apply, because the presidency is not an office ‘under the United States,’ the president is not an ‘officer of the United States,’ and President Trump did not take an oath ‘to support the Constitution of the United States,'” Trump’s lawyers wrote in a brief to the state’s highest court.

Lawyers from the nonprofit watchdog organization Citizens for Responsibility and Ethics in Washington (CREW), who are representing the six residents in Colorado seeking to disqualify Trump from the ballot, argued differently in their brief to the state Supreme Court last week.

“The Constitution itself, historical context, and common sense, all make clear that the Fourteenth Amendment’s disqualification clause extends to the President and the Presidency,” CREW stated in its brief to the court, adding:

The Constitution explicitly tells us, over and over, that the Presidency is an “office.” The natural meaning of “officer of the United States” is anyone who holds a federal “office.” And the natural reading of “oath to support the Constitution” includes the stronger Presidential oath to “preserve, protect, and defend the Constitution.”

Other legal experts and scholars have also noted that the 14th Amendment’s insurrectionist clause should apply to Trump as well, based on his motivating a mob of his loyalists to attack the U.S. Capitol on January 6, 2021, and his apparent sanctioning of their actions for several hours after they had begun. Trump’s other actions, including his leading a plot behind the scenes to usurp the outcome of the 2020 presidential election in order to illegitimately remain in office, also warrant barring him from running again.

“It’s an error to focus on JAN 6, for which Trump DENIES responsibility. It’s what he ADMITS — ATTEMPTING TO STAY IN POWER AFTER OFFICIALLY LOSING THE ELECTION — that DEFINES ‘insurrection against the Constitution of the United States,'” Laurence Tribe, Professor Emeritus at Harvard University, said on social media earlier this month.

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