By Jim Smilie
Local defense attorney Ed Tarpley told members of the Alexandria Rotary Club on Tuesday that he expects the U.S. Supreme Court to rule against the State of Colorado for banning former President Donald Trump from the 2024 presidential ballot based on Section 3 of the 14th Amendment.
“I expect it will be 9-0,” Tarpley said. “There is no right for a state to do this. Only Congress can do that,” he said in reference to enforcing Section 3 of the 14th Amendment.
Tarpley, who served as the district attorney for the 35th Judicial District in Grant Parish from 1991-1997, recently served as co-counsel for Stewart Rhodes, the founder of Oath Keepers, in the first Oath Keeper trial held in Washington, D.C., from Sept. 27-Nov. 29, 2022, for activities related to the January 6, 2021, protest at the U.S. Capitol.
Rotary members were provided printed handouts of Amendment 14, Section 3, the portion of the U.S. Constitution Colorado and other states have used to support banning Trump from being on the presidential ballot. It reads, “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.”
“What we are seeing is the weaponization of law because so many people don’t like President Trump,” Tarpley said. “This (Section 3 of the 14th Amendment) doesn’t apply to Donald J. Trump. It doesn’t mention the President.”
Tarpley explained Trump never served as a Senator or Representative in Congress and that the position of President is not considered an officer of the United States. He also noted that the President takes a different oath of office from members of Congress. “They take an oath to ‘support’ the Constitution, while the President takes an oath to ‘preserve, protect and defend’ the Constitution,” Tarpley said.”
Noting that Section 3 of the 14th Amendment was created specifically to prevent those who served in the Confederacy during the Civil War from taking office, Tarpley said the section is not self-executing and that Congress would need to enact legislation to enforce the provisions, which he said they have not done.
Based on all of that, Tarpley feels the Supreme Court will quickly rule against Colorado and it’s ban, which in turn will nullify a ban by Maine and any other state seeking to bar Trump from the ballot based on Section 3 of the 14th Amendment.
Another point in Trump’s favor is the fact that there has been no judicial finding of an insurrection, Tarpley said. He noted that in his second impeachment trial, Trump was charged with inciting an insurrection, but he was acquitted of that charge.
Another case involving former President Trump that Tarpley expects will end up at the U.S. Supreme Court involves the question of presidential immunity. Tarpley said the landmark Supreme Court case Marbury vs. Madison established the legal precedent that the president was immune from civil actions based on official acts done while serving as president. “There is very little case law on this, and it will be interesting to see how this goes,” Tarpley said.
The case is currently being argued in circuit court in Washington, D.C., and Tarpley expects their decision will likely go against Trump and that the matter will ultimately end up before the Supreme Court. Unlike the ballot ban case, which the Supreme Court has fast-tracked due to election deadlines, there will not be the same pressure to move forward quickly with the immunity case so it may take longer for the court to hear the case, Tarpley explained.
“Under the Constitution, the remedy for any alleged presidential misconduct is impeachment,” Tarpley said. “They did that, and Trump was acquitted.”
Finally, Tarpley spoke about the events of January 6, 2021, when a number of protestors breached security, disrupted the election ratification process and caused damage to the U.S. Capitol building. Tarpley said the planned protest at the Capitol building was just one of several events scheduled in the area that day.
During his time in Washington working on the Oath Keepers trial, Tarpley said he met an event coordinator who specialized in planning events around the Capitol. “He told me he had never seen that few police at an event. He said normally when they do events they have police everywhere,” Tarpley said. “There were all of these events planned, but security was very lax. We do not know the full truth of what happened January 6, 2021.”
Tarpley was critical of the January 6 commission that investigated the incident, noting the FBI director didn’t testify, nor did Pelosi. He also said video has recently been released that contradicts some of the testimony given against protestors.
“The Department of Justice acted with a very heavy hand and overcharged,” Tarpley said, adding many who did no damage to property and did nothing more than trespass should not have been charged. “So far there have been around 1,200 people prosecuted and I don’t think there has been a jury trial that has resulted with an acquittal. It’s impossible to have Donald Trump or any of his supporters get a fair trial in D.C., it’s just the nature of the jury pool.”
Referencing his case involving the Oath Keepers founder, Tarpley said Rhodes did nothing more than make remarks on the internet, which should have been protected by free speech.
He said he is hopeful that the public will learn more about what actually happened on Jan. 6, 2021, as more video from the event and other items come to light. “I think there are many more surprises to come as video gets released,” he said.