Lawyers for former President Donald Trump are seeking dismissal of a federal lawsuit that seeks to keep him off West Virginia ballots.
Attorneys representing Trump have filed a motion seeking dismissal of the lawsuit with prejudice. That filing contends the plaintiff, Republican write-in candidate John Anthony Castro, lacks standing.
“Plaintiff is a repeat litigant who has filed identical lawsuits in dozens of other jurisdictions across the country,” wrote the lawyers for the former president.
“None have been successful. In a barebones complaint based on mere conclusory assertions that President Trump violated an oath to support the Constitution by engaging in insurrection, Plaintiff asks the Court to enter an unprecedented declaratory judgment that President Trump is constitutionally-barred from holding any elective office or appearing on 2024 primary and general election ballots in West Virginia.”
The lawsuit was filed last month in U.S. District Court for the Southern District of West Virginia, along with parallel efforts in other states.
The case was assigned to U.S. District Judge Irene Berger, and it has been referred to U.S. Magistrate Judge Omar Aboulhosn. Castro is serving as his own attorney. Trump is represented in the West Virginia case by Charleston lawyers Mark Adkins, Richie Heath and Will Lorensen.
The concept in the lawsuit is that Article 3 of the 14th Amendment disqualifies federal officeholders who “have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.” The amendment was passed in 1868 as a Civil War response.
The possibility of applying that to Trump gained steam after a pair of conservative legal scholars affiliated with the Federalist Society — William Baude of the University of Chicago and Michael Stokes Paulsen of the University of St. Thomas — endorsed the theory in the New York Times.
Laurence Tribe, a liberal constitutional scholar at Harvard Law School, and retired conservative judge J. Michael Luttig then joined forces in a magazine piece, “The Constitution prohibits Trump from ever being president again.”
The legal scholars contend the constitutional disqualification is self-executing and requires no legislation, criminal conviction, or other judicial action.
Still, as the concept has been discussed nationally, questions have persisted over how that would work in practice.
The lawsuit filed by Castro includes several paragraphs meant to demonstrate Trump’s connection with insurrection activity following the 2020 presidential election, including a statement in a debate to the Proud Boys group to “stand back and stand by,” a videotaped statement following the Jan. 6 riots that “we love you; you’re very special” and a more recent statement by Trump indicating willingness to pardon people convicted in the Capitol riots.
Trump’s move to dismiss the case maintains Castro can’t demonstrate any substantial harm to himself or his campaign for president.
“Plaintiff does not allege that he appears on any national polling. Plaintiff does not allege that he has requested placement on the upcoming primary ballot in West Virginia. Plaintiff does not allege that he has secured a single dollar in campaign contributions,” wrote lawyers for the former president.
Moreover, Trump’s response to the lawsuit contends Section 3 of the 14th Amendment is not self-executing, citing a recent article by scholars Joshua Blackman and Seth Barrett Tillman. The response also maintains the president is not an “officer of the United States,” one of the federal positions specified by Article 3 of the 14th Amendment. Instead, the president falls outside that, personifying one branch of the government.
Most of all, Trump’s response contends his actions don’t fall within Section 3’s description of an insurrection.
“The Congress that had just drafted Section Three believed that someone committed ‘insurrection’ or ‘rebellion’ if he led uniformed troops in battle against the United States, but not if he or she merely voted to support secession with violent force, recruited for the Confederacy, provided wartime aid, or held offices in the rebel government,” Trump’s lawyers wrote.
“The drafters chose words that encompassed at least the main actors in that act of treason, but no more. They were not trying to legislate with an eye toward political riots.”
The filing by Trump’s lawyers notes, “Not a single prosecutor has filed an indictment against President Trump for an alleged rebellion or insurrection.”
Congress’s Jan. 6 Committee investigation concluded that enough evidence exists to charge Trump with “assisting, aiding or comforting” an insurrection — focusing on his actions as the attack unfolded and his lack of action in not stopping it.
Federal criminal charges brought against Trump by special counsel Jack Smith include conspiring to defraud the United States, conspiring to disenfranchise voters, and conspiring and attempting to obstruct an official proceeding. But the federal charges do not include counts reflecting insurrection or seditious conspiracy.