Trump tells court he had no duty to 'support' the Constitution as president!

[Gunnar]

https://www.msn.com/en-us/news/politics ... d9a8&ei=19

Former President Donald Trump is arguing to a judge in Colorado that he was not required to "support" the Constitution as president, reported Brandi Buchman from Law & Crime.

The argument came as he seeks to dismiss a lawsuit filed in the state by Citizens for Responsibility and Ethics in Washington (CREW), seeking to have him disqualified from the ballot in the state under the 14th Amendment. The Insurrection Clause of the amendment prohibits those who have "engaged in insurrection" against the United States from holding a civil, military, or elected office without unless a two-thirds majority of the House and Senate approve.

But Trump's lawyers are arguing that the specific language of the Constitution argues that this requirement only applies to people in offices who are bound to "support" the Constitution — and the presidency is not one of those offices.

"The Presidential oath, which the framers of the Fourteenth Amendment surely knew, requires the President to swear to 'preserve, protect and defend' the Constitution — not to 'support' the Constitution," said the filing by Trump's attorneys. "Because the framers chose to define the group of people subject to Section Three by an oath to 'support' the Constitution of the United States, and not by an oath to 'preserve, protect and defend' the Constitution, the framers of the Fourteenth Amendment never intended for it to apply to the President."

It's hard for me to imagine a more ridiculous line of argument than that! It seems to me that the ridiculousness of this desperate line of argument is or should be regarded as an imminently sound argument for disbarring the lawyers pushing it!

Talk about splitting hairs!

[Moksha]

With Trump taking that stance, it will probably become de rigueur for Republicans to bad-mouth the Constitution. Besides, that document does not lend itself to full-blown fascism.

[Doctor CamNC4Me]

With Trump taking that stance, it will probably become de rigueur for Republicans to bad-mouth the Constitution. Besides, that document does not lend itself to full-blown fascism.

I can see Mike Lee pulling his Pocket Constitution out and setting it alight for the cameras.

- Doc

[Res Ipsa]

I've seen a few articles in this vein, but I think they miss the point of the actual argument being made. Here is the text of the amendment:

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.

One important office in the federal government is oddly missing from the text. The text refers specifically to Senators, Representatives, and "elector of President and Vice President," but not "President." The argument is that, if the amendment were intended to apply to the President, the drafters would have said so. That's a legitimate argument of Constitutional interpretation.

As support for that argument, Trump's lawyers point to the language of the oath referred to in the amendment: ""support the Constitution." The oaths of Senators and Representatives state that they will "support" the Constitution. The oath that President takes does not. I have no idea why.

So, Trump's lawyers aren't arguing that Trump had no duty to support the Constitution. They are arguing that the 14th Amendment was intentionally drafted to not apply to the office of President.

[Gunnar]

One important office in the federal government is oddly missing from the text. The text refers specifically to Senators, Representatives, and "elector of President and Vice President," but not "President." The argument is that, if the amendment were intended to apply to the President, the drafters would have said so. That's a legitimate argument of Constitutional interpretation.

As support for that argument, Trump's lawyers point to the language of the oath referred to in the amendment: ""support the Constitution." The oaths of Senators and Representatives state that they will "support" the Constitution. The oath that President takes does not. I have no idea why.

My guess is that it was more likely an unintentional but negligent oversight on the part of the writers than anything else. They probably figured that no intelligent reader would infer that they actually intended to exempt the President from any duty to support the constitution after already having vowed to defend it Why would any reasonable person conclude that there is any essential difference between defending and supporting the constitution? Isn't that a rather extreme example of "hair splitting" logic?

So, Trump's lawyers aren't arguing that Trump had no duty to support the Constitution. They are arguing that the 14th Amendment was intentionally drafted to not apply to the office of President.

I view it as yet another extreme example of desperately "throwing anything they can think of against the wall, to see if it will stick!"

[Res Ipsa]

One important office in the federal government is oddly missing from the text. The text refers specifically to Senators, Representatives, and "elector of President and Vice President," but not "President." The argument is that, if the amendment were intended to apply to the President, the drafters would have said so. That's a legitimate argument of Constitutional interpretation.

As support for that argument, Trump's lawyers point to the language of the oath referred to in the amendment: ""support the Constitution." The oaths of Senators and Representatives state that they will "support" the Constitution. The oath that President takes does not. I have no idea why.

My guess is that it was more likely an unintentional but negligent oversight on the part of the writers than anything else. They probably figured that no intelligent reader would infer that they actually intended to exempt the President from any duty to support the constitution after already having vowed to defend it Why would any reasonable person conclude that there is any essential difference between defending and supporting the constitution? Isn't that a rather extreme example of "hair splitting" logic?

So, Trump's lawyers aren't arguing that Trump had no duty to support the Constitution. They are arguing that the 14th Amendment was intentionally drafted to not apply to the office of President.

I view it as yet another extreme example of desperately "throwing anything they can think of against the wall, to see if it will stick!"

I completely understand why it appears like extreme hair splitting. But sometimes that's what we lawyers get paid for. Textual interpretation can be really tricky, especially textual provisions that are as old as the 14th Amendment. We have certain "maxims" to aid in textual interpretation, one of which is the Latin phrase: Expression unius est exclusion alterius. Basically, it says that by mentioning things that are specifically included, we can infer that everything else is excluded. Folks write law review articles on it: https://scholarship.law.marquette.edu/c ... ntext=mulr

I don't know why the clause was worded the way it was. There may be something in the legislative history that sheds light on Congress's intent. But courts don't just get to assume the omission of President from a list that does include Senators and Representatives was an oopsie. (Or at least they shouldn't.) One of the other principles of interpretation is "Don't change unambiguous language." And it is pretty unambiguous. It omits "President" from the list and it uses a term that is other oaths but not the President's.

I haven't looked for a substantive response to the argument, so I've only read Trump's side of it. There may precedent or something else of which I'm unaware.

[Moksha]

I don't know why the clause was worded the way it was. There may be something in the legislative history that sheds light on Congress's intent. But courts don't just get to assume the omission of President from a list that does include Senators and Representatives was an oopsie. (Or at least they shouldn't.)

Perhaps they hoped for the day when a lawless and vengeful dictator would arise and did not want to burden him with being shacked by the Constitution.

[Res Ipsa]

I don't know why the clause was worded the way it was. There may be something in the legislative history that sheds light on Congress's intent. But courts don't just get to assume the omission of President from a list that does include Senators and Representatives was an oopsie. (Or at least they shouldn't.)

Perhaps they hoped for the day when a lawless and vengeful dictator would arise and did not want to burden him with being shacked by the Constitution.

No clue, my flightless friend. Hope your nesting sites haven't melted. I hear sea ice is in short supply this year.

[Moksha]

No clue, my flightless friend.

At least now we won't have to listen to Republicans talk endlessly about the Constitution, except as a document to repeal.

[Gunnar]

I completely understand why it appears like extreme hair splitting. But sometimes that's what we lawyers get paid for. Textual interpretation can be really tricky, especially textual provisions that are as old as the 14th Amendment. We have certain "maxims" to aid in textual interpretation, one of which is the Latin phrase: Expression unius est exclusion alterius. Basically, it says that by mentioning things that are specifically included, we can infer that everything else is excluded. Folks write law review articles on it: https://scholarship.law.marquette.edu/c ... ntext=mulr

I don't know why the clause was worded the way it was. There may be something in the legislative history that sheds light on Congress's intent. But courts don't just get to assume the omission of President from a list that does include Senators and Representatives was an oopsie. (Or at least they shouldn't.) One of the other principles of interpretation is "Don't change unambiguous language." And it is pretty unambiguous. It omits "President" from the list and it uses a term that is other oaths but not the President's.

I haven't looked for a substantive response to the argument, so I've only read Trump's side of it. There may precedent or something else of which I'm unaware.

Thank you for taking the time for presenting that detailed analysis and well-thought out response, and for the honest admission that even you don't fully understand why the clause was so worded. I always look forward to and appreciate your depth of knowledge and willingness to help us understand the nuances of the law and other complex issues. You always leave me better informed than I was before reading one of your posts. I still strongly feel, though, that Trump and his lawyers' argument in this instance is clearly specious, as are many of the other claims they have made in his defense. They deserve to be held to account for that, in my honest opinion.

Yet I realize that even criminals have the right to legal representation to present their side of the argument before the court in order to dispel as much as possible any reasonable doubt about the justice of the eventual decision, whether for or against them.