Donald Trump Lawyers' 'Interesting' Filing Could Backfire: Ex-US Attorney

One of the arguments made by former President Donald Trump's legal team in the appeal to the Supreme Court, after being removed from the primary ballot in Colorado, could result in him being elected in November but unable to take office, according to one prominent legal scholar.

In December, Trump, the Republican primary frontrunner by a wide margin in the polls, was removed from the Colorado primary ballot by the state's supreme court, which concluded he is ineligible to serve as president over his alleged role in the Capitol riot on January 6, 2021. The 14th Amendment of the U.S. Constitution states that anyone who engaged in "insurrection or rebellion" having "previously taken an oath" to uphold the U.S. constitution is ineligible to hold "any office, civil or military, under the United States."

"One [argument] he led with that is interesting to me is that the 14th Amendment only bars someone from holding office, not running for office. Therefore, he should be permitted to run, be elected, and only on January 20th of 2025, should it be said, 'sorry, folks, he can't serve.'" said Barbara McQuade, a former U.S. attorney and legal analyst for MSNBC, on Thursday.

Trump's appeal to the Supreme Court, against the Colorado ruling, includes several arguments, including that the interpretation of the 14^th Amendment is a matter for Congress rather than the courts, that the presidency isn't covered by "any office, civil or military" thus making the whole thing irrelevant and that he didn't engage in insurrection.

"You know, he's got all the greatest hits in there: the 14th Amendment doesn't apply to the U.S. president, this wasn't an insurrection. Even if it was, he didn't engage in it, all the things we might expect," said McQuade, who was appointed as U.S. attorney in Eastern Michigan by then President Barack Obama and let go by Trump in 2017.

The filing also states that "Section 3 of the Fourteenth Amendment prohibits individuals only from holding office" rather than "being elected for office." In essence, this could mean Trump is allowed on the November 2024 presidential ballot but is not able to hold office if he wins the election.

"The lead argument that he makes here is one I haven't heard before," said McQuade. In such a situation, the former U.S. attorney said Trump's running mate would become president rather than him.

Newsweek has reached out to representatives of Donald Trump for comment by email.

Critics have argued that Trump's attempts to overturn Joe Biden's 2020 election win, including the storming of Congress on January 6, 2021, by hundreds of his supporters, constituted an insurrection thus barring him from a second term in the White House. Trump has dismissed these claims as a politically motivated attack on democracy.

Maine Secretary of State Shenna Bellows came to the same conclusion as the Colorado Supreme Court just days later, arguing Trump used a "false narrative of election fraud to inflame his supporters and direct them to the Capitol" ahead of January 6, 2021, which she classified as an insurrection. Both the Colorado and Maine rulings have been suspended pending appeals.

McQuade questioned whether the Supreme Court would decide the case "on the merits" and suggested it would choose an "off-ramp" allowing Trump to remain on the ballot.

She said: "I do think the court is likely to take an off-ramp. A more likely off-ramp, I think, is one that says this is not a justiciable argument, that is, this is a matter for Congress, not the courts to decide. So that might be one that they bite on."