Garland Should Seek a Writ Declaring Trump Ineligible

US Attorney General Can Offer a Reply to the 14th Amendment Question

The moment for an across-the-board, federal decision on the question of Donald Trump’s eligibility to again hold federal office is upon us, but the person best suited to make the case in the U.S. Supreme Court is not a plaintiff from Colorado or Maine or any other state but Attorney General Merrick Garland himself.

Under the legal code of the District of Columbia, the U.S. Attorney General has the authority to seek a special writ, or declaration, from a federal judge stating that Trump became ineligible to retain the office of President when he fell squarely under the Constitution’s insurrection clause in Article 3 of the Fourteenth Amendment as he incited a mob to storm the U.S Capitol in a scheme to prevent the transfer of power.

We can argue about whether Article 3 is “self-executing.” We can argue about whether the Presidency is among the offices covered by Article 3. We can argue about the standing of the plaintiffs from Colorado and Maine who have won preliminary rulings keeping Trump off the ballot in those states. We can argue about due process issues and free speech. We can argue about the nature of impeachment and double jeopardy.

But the fact remains, primary elections are imminent across the United States, ballots must be printed, and voters everywhere, particularly Republicans and Independents, have a deep interest in knowing whether they might be wasting their ballots on a candidate who is ineligible. The Supreme Court may be tempted to issue some form of “let the voters decide” ruling. But that would set the unforgiveable precedent of nullifying the plain language of the Constitution, not to mention overriding the originalist basis for the ruling by the Colorado Supreme Court. Handing off to the voters would also subject the Court to well-deserved ridicule for ducking its responsibility. The highest law of the land, the Constitution, bars those who engage in insurrection from holding federal office; it does not refer questions of presidential eligibility to the Electoral College.

Legal arguments on Article 3 from the U.S. Attorney General, himself a former federal appeals court judge and Supreme Court nominee, would carry significant weight before the Court and have the desired scope of presenting a uniform federal solution to a patchwork of disparate state rulings on whether Trump’s name can appear on ballots.

Garland could have, and should have, acted months ago to seek a federal court declaration, which would likely rise quickly to the Supreme Court. The fact that he did not makes the fulfillment of his duty now only more urgent as printing presses begin churning out ballots.

Garland can still act. Under Chapter 35 of the Code of the District of Columbia, the U.S. attorney general can seek a writ of quo warranto from the federal district court for the District of Columbia “in the name of the United States against a person who within the District of Columbia usurps, intrudes into, or unlawfully holds or exercises, a franchise conferred by the United States or a public office of the United States, civil or military.” Garland’s action would be civil, not criminal, and thus would be distinguished from the criminal action brought by Special Counsel Jack Smith.

How convenient it would be if Smith’s criminal case could be adjudicated immediately. This is not a practical possibility, nor is a guilty verdict a prerequisite for making a civil determination on ballot eligibility. Garland is uniquely positioned as the chief law enforcement officer of the United States to bring an action in federal court and to rebut any defense that lawyers for Donald Trump would mount, as is their right.

Opinions on the meaning and mechanics of Article 3 have mushroomed since the Colorado Supreme Court declared Trump ineligible for the state ballot, agreeing with a lower-court judge that Trump “engaged in insurrection or rebellion” against the Constitution after having taken an oath to uphold it. Experts have often noted how few precedents exist, if any, for a declaration of ineligibility under Article 3.

Yet the question of precedent is a self-imposed restraint. The unprecedented challenge to the rule of law that the Jan. 6 rebellion created deserves a precedent-setting decision by the highest court in the land. The Supreme Court exists to make sure that no branch of government exceeds its authority and that the rule of law is preserved. Indeed, the Constitution extends the power of the court to “Cases” and to “Controversies.” We have before us an earth-shaking controversy that has the potential to cause legal and electoral chaos and worse, the dissolution of democracy in America. It is time for the U.S. Attorney General to offer the Supreme Court a swift path to reasoned judgment.