No wiggle room in determining Trump’s eligibility for presidency

Over the years millions of American parents must have told their children, "In America, anyone can become president."

Of course, that's not quite true. To become president, a person needs to be a citizen born in the United States who has reached 35 years of age and resided there for 14 years. They must also have taken the oath of office and not already served as president for more than six years.

Limits on who can become president are inherently anti-democratic. They don't allow votes to be cast for those not qualified. Maybe you think the late Henry Kissinger was such a foreign policy wizard he should've been elected president back in the 1980s. Tough. He was born in Germany and ineligible. Or maybe you would prefer Taylor Swift to have beaten both Donald Trump and Joe Biden for the presidency in 2020. Sorry, Time Magazine's Person of the Year was only 31 back then.

Oh yeah, there's one more restriction of special concern to Trump, running again in the 2024 presidential race. According to the Constitution's 14th Amendment, a candidate cannot have "taken an oath ... as an officer of the United States ... to support the Constitution of the United States (and) have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof."

Trump entered politics by falsely claiming Barack Obama was born in Kenya, not the United States, and therefore ineligible to be president. In one of history's most malicious or delicious — depending on your politics — twists of fate, he may now be ineligible himself as someone who engaged in an insurrection against the U.S. or as someone who gave aid or comfort to its enemies.

In November, a trial court in Colorado found Trump's activities on and around Jan. 6, 2021, "easily satisfy" engagement in an insurrection "through instigation or incitement." But then it went on to hold, as president, Trump did not hold an office of the United States and thus ought not be removed from the ballot. How can that be when the Constitution prescribes the oath a prospective president must take before entering the "Office"? Someone can take an oath of office and not be an officer? Come on, Your Honor, be serious.

Upon appeal, the Colorado Supreme Court confirmed the district court's holding that Trump had engaged in an insurrection. It overruled as a matter of law the trial court's contrived interpretation that someone who took an oath of office is not an officer.

Dissenting from the majority, Justice Carlos Samour wrote that being excluded from the ballot deprived Trump of running without "due process" including a "fair trial." No. As Harvard Law professor Lawrence Tribe noted, the process was "elaborate" and "fair." He continued, "The Constitution itself contemplates that this is not like a criminal trial. ... It simply says, that for the privilege of wielding power over others, you must be someone who has not tried to overturn the Constitution after swearing to uphold it."

Samour's dissent also warned against "risking chaos in our country." It's a fair point. Trump himself has already called for "termination" of those parts of the Constitution that kept him from retaining the White House. And chances are good he would do the same again if he should lose the nomination or general election in 2024. The majority of the Colorado court said it understood the risk but affirmed their "solemn duty to apply the law, without fear or favor, and without being swayed by public reaction to the decisions that the law mandates we reach."

The majority of the Colorado Supreme Court read the Constitution as written. You can be elected president if a convicted felon. You can win even if running from a prison cell. You can be a racist who calls fellow citizens vermin. But you must be over 35 and not have engaged in an insurrection. As Justice Neil Gorsuch of the U.S. Supreme Court wrote in 2020, "When the express terms of a statute give us one answer and extratextual considerations suggest another, it's no contest. Only the written word is the law."

The Colorado Supreme Court's holding that Trump is ineligible will inevitably be reviewed by Justice Gorsuch and his eight colleagues on the U.S. Supreme Court, especially since only a week after the Colorado decision, Michigan's highest court held that Trump should remain on the primary ballot in that state.

Pundits, columnists, politicians and editorial boards have decried the possibility of Trump being anti-democratically excluded from another term. I understand and sympathize. There's just one problem — those pesky words of the Constitution. We don't get to pick and choose which parts we accept as the law of the land and which parts we ignore.

The U.S. State Department has condemned a new "sovereignty and protection" law in Hungary that might be used to "intimidate and punish" Hungarians critical of the government — notwithstanding the country's constitutional protection of freedom of expression. According to newspaper reports, if he takes back the presidency, Trump is already contemplating disregarding American constitutional considerations and having the Justice Department investigate his critics and "go after" Biden.

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