by Domenico Maceri * –
SAN LUIS OBISPO (USA). “If someone is not born in the United States he cannot become president.” Donald Trump said this in several television interviews in 2011, questioning the legitimacy of Barack Obama, the then US president. After a long media campaign, Obama released his birth certificate confirming his citizenship.
Trump has often expressed doubts about the eligibility of Ted Cruz and Hillary Clinton for president. In the first case, Trump said that Cruz was born in Canada (true) and therefore it should be investigated whether he qualified to participate in the 2016 Republican primaries. Cruz came first in Iowa and Trump, as he often does, accused him of having rigged the election. Once Trump won the nomination he moved on his presidential opponent Hillary Clinton, asserting that she was ineligible for her crime of using a private server in her home to use official government communications.
However, once he won the presidency in 2016, Trump did not ask the Ministry of Justice, headed by his nominee Jeff Sessions, to indict Clinton. Despite Clinton’s lack of professionalism in the matter of her server, her conduct was not considered worthy of criminal investigation.
The question of electability has now shifted very seriously to Trump himself. The Colorado Supreme Court recently declared that the former president is not eligible to participate in the Republican Party primaries due to his incitement to the insurrectionists in the assaults on the Capitol on January 6, 2021. More recently, the decision of the State of Maine, where the Secretary of State Shenna Bellows announced that Trump is ineligible for the same reasons. Other states are examining the issue, but the United States Supreme Court recently announced that it had accepted the tycoon’s request to rule on the case.
Among these two states, the decision of the Colorado Supreme Court stands out, which overturned the decision of the District Court. The lower court heard the case and after a week of hearings determined that Trump had violated the 14th Amendment. This is a law passed after the Civil War that was intended to prevent former secessionist leaders from reentering the government after taking up arms against the Union. The amendment says that anyone who has “taken part in an insurrection or rebellion… or who has given aid or support” to the country’s enemies is ineligible to hold government office.
The District Court of Colorado determined that Trump was guilty of insurrection, but that the president’s office was excluded from the amendment. This is a linguistic issue that does not reflect the intent of legislators at the time, who aimed to prevent secessionist leaders such as Jefferson Davis, president of the Confederate States, from reentering the government. In their decision, the Colorado judges determined that Trump “not only incited the insurrection,” but even during the storming of the Capitol he continued to support the attackers by demanding that Mike Pence not do his duty to count the Electoral College votes. The text of the decision also states that the former president’s actions consist of “direct and explicit participation in the insurrection”.
One could deliberate on the definition of insurrection, but on the second part of aid and “support” Trump is obviously guilty, as demonstrated by his assertions that the attackers of January 6, 2021 were patriots and how they were treated terribly by the Department of Justice. Trump also said that if he becomes president he will pardon them. Who are these attackers? There are more than a thousand people, most of whom have been accused of crimes. A few hundred of them were tried, and some of the leaders were convicted of sedition, receiving 12 to more than 20 years in prison. Some of them are leaders of the ultra-right militias of the Proud Boys and the Oath Keepers, great supporters of Trump, for whom the former president has often expressed words of support.
After the announcement of the ineligibility of the State of Maine, the Supreme Court had little choice and was forced to accept the appeal, also because it was necessary to clarify the fundamental question. Trump is top of his class in the polls for the Republican nomination. Voters have the right to know who the candidates will be to choose from. The Supreme Court typically accepts very few cases and does not act very quickly. The exception to the intervention of the highest judges is that of the 2000 election, when the Supreme Court agreed to determine the outcome of the election in Florida and in just a few days put an end to the recount of the votes, effectively handing over the keys to the House White to George W. Bush Jr.
Several analysts have asserted that Trump deserves to be defeated democratically at the polls and not by judges. However, they forget that the former president believes in democracy when he is declared the winner. When he loses he screams that the elections are rigged. He also did it in 2016, when he won the presidency through the Electoral College mechanism. However, he lost the popular vote by a difference of three million votes. In fact, Trump falsely said that he had also won the popular vote except for the participation of illegal immigrants in the election.
Like it or not, there are requirements to become president. You must be 35 years old and be a US citizen born in the USA (ius soli) or the son of a father or mother born in the USA (ius sanguinis). Cruz qualifies because his mother was born in the US. The Supreme Court, according to many analysts, will smile on Trump as the judges lean to the right (6-3). From a legal point of view, however, Trump should be excluded from the ballot papers, but the Court is also affected by political pressure. The former president has already given clear signals that the three judges leaning on the left will vote against him. However, others also voted against him in the 2020 elections. Will it be different this time?
* Domenico Maceri, PhD, is professor emeritus at Allan Hancock College, Santa Maria, California. Some of his articles have won awards from the National Association of Hispanic Publications.
