Alan Dershowitz On Colorado Court Removing Trump From 2024 Ballot

Alan Dershowitz, a defense attorney and Harvard academic who defended Trump during his Senate impeachment trial, has long argued that America’s court system is being weaponized to bring down former President Donald Trump in ways that violate civil liberties for all. In an interview with Forbes, he argues that Tuesday’s Colorado Supreme Court ruling to exclude Trump from the state’s 2024 ballot sets an especially dangerous precedent.

By making decisions that should be left in the hands of voters, he argues, the U.S. Supreme Court will have no choice but to intervene and overrule the Colorado decision, which justified removing Trump’s name from the ballot under Section 3 of the 14th Amendment—a ratification passed in the aftermath of the Civil War which states that no person shall hold office if they have engaged in insurrection or rebellion.

“This is an attempt to totally manipulate an amendment that was never designed to disqualify people in future election,” says Dershowitz, who argues that the blowback could be intense. “Texas will try to take Biden off the ballot, saying he lent support to an insurrection by opening the borders—an absurd argument but not much more absurd than the argument that the four justices of the (Colorado) Supreme Court.”

Dershowitz argues that Congress’s impeachment provisions, whether politically motivated or not, at least provide safeguards against the party in power targeting its opponents. “There has to be a real trial and two-thirds of the vote in the Senate,” he says, adding that’s vastly superior to “a provision that says if anybody thinks the president did something that they believe is an insurrection—and if they can get a secretary of state somewhere to agree with that—millions of voters become disenfranchised.”

To be sure, many of Dershowitz’s peers disagree with his analysis. Ilva Somin, a professor of law at George Mason University, argues that Article 3 was designed precisely to avert a candidate like Donald Trump — and wrote an analysis of the decision, saying “the Colorado court got it right.” Added Somin: “I think it’s fairly obvious that the January 6 attack on the Capitol amounts to an insurrection, and the Colorado justices also concluded this is not a close issue.”

Both academics agree that the matter is now in the hands of the Supreme Court of the United States (SCOTUS), which will almost inevitably make a ruling in the Colorado case, given the unprecedented nature and consequences of its decision. SCOTUS is currently reviewing a request from special counsel Jack Smith to make a ruling on Trump’s claims of presidential immunity from criminal prosecution in order to proceed with lower court deliberations.

Dersowitz argues that the Supreme Court has increasingly overstepped its reach in making decisions that belong to other branches of government. “The worst decision the Supreme Court made in the last quarter of a century may have been overruling Bush versus Gore, in which five Republican justices outvoted four Democratic justices and turned the election over to the man who got fewer votes in Florida than the other side,” says Dershowitz, who represented the voters of Palm Beach County in that case. “The court should not be intruding into elections now but they may have to if a lower court the Colorado

“I’m very worried that we’re living in a time in which people call things “insurrections” … Black Lives Matter was seen by some as an insurrection, Keeping the border open and allowing 100,000 people to come through is seen by some Republicans as an insurrection. People believe that the demonstrations in New York against Israel and against the United States, some of which are calling for the overthrow of the United States, are insurrections. They are not.”

“Even the terrible events of January 6 are not insurrections; they’re protests gone bad.” Among those who disagree with that analysis, many would agree it’s a matter for voters to decide at the polls.