Appeals court hinted Trump may be disqualified under 14th Amendment: conservative ex-judge

Retired former Judge Michael Luttig, a conservative, has advocated that Donald Trump is ineligible to serve as president based on Section 3 of the 14th Amendment. But now he thinks he has the encouragement of the Washington, D.C. Circuit Court of Appeals behind him.

Speaking to MSNBC's Ali Velshi on Tuesday, the two referred to the recent decision to strike down Trump's argument for "presidential immunity" from criminal prosecution. In that decision, Luttig said, is a hint that refers back to the 14th Amendment case.

Unlike former prosecutor Andrew Weissmann, Luttig thinks the Supreme Court will take up the case from the D.C. circuit.

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He and other legal colleagues penned an amicus brief to the Supreme Court arguing against the idea of absolute immunity for any president. If the Supreme Court does weigh in, Luttig says that the one place such immunity cannot be applied is in the attempt to block the transfer of power.

"But if there's one single instance in which he or she is not immune, it is where, as here, with the former president, he or she attempted to remain in power in violation of the Executive Vesting Clause of the Constitution preventing the peaceful transfer of power and denying his successor, in this instance President Joe Biden, the powers of the presidency to which he had rightfully become entitled," said Luttig.

That's where the argument before the court over the Colorado general election ballot comes into play.

"My colleagues and I made the same argument as to our point that the former president engaged in an insurrection or rebellion against the Constitution of the United States when he attempted to remain in power beyond his four-year term, depriving his successor of the rightful powers of the presidency," Luttig explained. "So, today's decision by the D.C. Circuit did not hold that the president is arguably disqualified from the presidency under the 14th Amendment, but it did speak very pointedly to the argument that he might be disqualified under the 14th Amendment."

Parsing the distinction, Luttig explained that the D.C. court didn't weigh in on the 14th Amendment case, rather they spoke to what Trump is alleged to have done that would violate Section 3 of the 14th Amendment.

And they did so "in the context of its opinion that no president would ever be immune from prosecution for that. Now it's up to the Supreme Court to decide whether the former president's insurrection or rebellion against the Constitution of the United States when he attempted to remain in power beyond his four-year term and deprive his successor Joe Biden of the powers of the presidency or attempted to — whether that is an insurrection or rebellion against the Constitution of the United States within the meaning of Section 3 of the 14th Amendment."

Luttig's amicus brief to the Supreme Court on the 14th Amendment makes the case that it is, and they do so using several arguments, one of which is the "originalist" and "textual" way that judges like Samuel Alito prefer. Historians filed their own brief as well, walking through the history of the arguments from the founding fathers in Section 3.

The Supreme Court is set to hear arguments in the Colorado case on Thursday, determining whether Trump can appear on the ballot.

Read the brief from Luttig, et. al at the Supreme Court site here.

See the interview with him below or at the link here.

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