By Clarice McKenney
Many North Idaho residents have been following the many court cases involving former president Donald J. Trump. Many have voiced concerns in meetings and letters to the editor that wealthy, powerful individuals are seldom brought to justice because of the undue influence of wealth and power in our judicial system. During a webinar this morning, citizens from all over the country heard a renowned conservative judge share his optimism that our system of justice, while slow moving, will succeed in the end.
In the face of extreme pressures similar to those that have revealed the weakness and strengths of other countries’ judicial systems, retired judge of the U.S. Court of Appeals for the Fourth Circuit, J. Michael Luttig insisted that ours will stand.
He was asked if he were worried that the DC court is taking too long to try former president Donald Trump for alleged crimes against the U.S. Constitution. “No president is immune for their acts while in office,” Luttig replied. “When the judiciary speaks, it gets it right.”
In the myriad legal challenges facing Trump, to many, none are more pressing than the question as to whether he is qualified to again seek public office.
“Some of us have long believed that the best argument disqualifying the former president from holding office in the future,” Luttig asserted, “is that he engaged in rebellion against the Constitution of the U.S. when, on January 6th, he attempted to remain in power and prevent the peaceful transfer of power for the first time in U.S. history.”
On January 29, Luttig filed an amicus brief not representing either side, but as a friend of the court on the issue in the United States Supreme Court.
Among the concerns on attendees’ minds was whether the Supreme Court justices appointed by Trump would make a “pollical” decision.
“The Constitution is neither conservative nor liberal,” he said, “but (the analysis of) Conservative jurisprudes (interpreters) of the Constitution should appeal most to this Supreme Court because most of them have said they are originalists.”
Asked by an attendee if Congress has a role to play in this issue, Luttig explained, “The 14th Amendment is self-executing. Congress does not have to act in any way whatsoever. The question of the disqualification of any person is, per the Constitution, a judicial decision.”
This was one of the important topics on so many listeners’ minds that Luttig discussed with Michael Waldman, president and CEO of the nonpartisan/nonprofit Brennan Center for Justice at NYU School of Law. Other issues Luttig weighed in on in the meeting is what moderator Kitty Douglas characterized as the struggle between Texas and the federal government.
“The final decision has to come from SCOTUS,” Luttig said, “but meanwhile we’re waiting for a decision by the District Court of Appeals (which has another brief filed by Luttig and a colleague that a former president never is immune to prosecution while in the office).” He cited the situation as an example of the check and balance system in the appellate process, which earlier, Luttig admitted takes a long time.
However, an attendee asked if the judge thought the March date for the DC court case of insurrection against Trump would slip and keep voters from knowing the outcome until after the election. Judge Luttig said he fully expects the decisions to come soon enough so that that trial occurs within a week or so of the original date on the judicial calendar.
On a side note, the 14th Amendment, ratified July 9, 1868, did three things, granting citizenship to all freed slaves and to guarantee equal civil and legal rights to Black citizens, establishing that all citizens were entitled due process of law and equal protection under the law, and, in Section 3, “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.”
While the 14th Amendment failed miserably in achieving its first two objectives during the Reconstruction Era after the Civil War, the disqualification clause was seldom applied. In the late 1860s and early 1870s, it was used to bar a county sheriff, a U.S. Congressman, and even a local postmaster from office, but little else.
But, according to Luttig, the principle still applies.
“In 1861, when the word “traitor” came to be used pretty loosely, the average northerner would probably have placed John B. Floyd no lower than second on the blacklist of treason,” an article in the American Heritage Magazine of February, 1963, reads. “Floyd, everybody said, was a sinister secret agent who had used his position as Secretary of War in President James Buchanan’s Cabinet to send guns by the carload to Dixie. He had armed the South with federal muskets.”
When Waldman asked him to compare Trump’s actions on January 6, 2021, with those leading to the Civil War, Judge Luttig replied, “What he did on and around January 6th is equivalent to President Buchanan’s Secretary of War’s distributing weapons to the seceding states.”