Former Harvard President Faust Supports Disqualifying Trump From Colorado Ballot in SCOTUS Amicus Brief

Former Harvard President Drew Gilpin Faust filed an amicus brief to the Supreme Court Monday in Trump v. Anderson, the forthcoming case on former U.S. President Donald J. Trump’s disqualification from the presidential primary ballot in Colorado.

The brief — written by Faust and History professor Jill Lepore in support of the respondents, who argue that Trump is ineligible for the presidency — focuses on the history of the 14th Amendment during the Reconstruction era.

Section Three of the 14th Amendment, known as the Disqualification Clause, states that anyone who “engaged in insurrection or rebellion” against the United States cannot serve “as an officer of the United States.”

Yale professors David W. Blight and John Fabian Witt joined Lepore and Faust, a renowned scholar of the American Civil War and an expert on constitutional history, in filing the amicus brief.

The case reached the Supreme Court after Trump’s legal team appealed a Colorado Supreme Court decision that deemed Trump ineligible for the presidency and removed him from the state’s presidential primary ballot.

Trump’s defense team argues that Section Three does not apply to the presidency and that he did not engage in insurrection by the section’s definition. They additionally argue that enforcement of Section Three necessitates an act of Congress and does not apply prior to a candidate’s election.

In the brief, Faust and Lepore argue that Section Three was designed to disqualify insurrectionists automatically and that it applies to both the Civil War and future insurrections.

Faust and Lepore also argue in the brief that Section Three encompasses the presidency because it was written in response to fears that former Confederate President Jefferson F. Davis would run for the presidency.

“Obstacles to prosecuting Davis had made it increasingly likely that he would not be convicted on treason charges, thus underscoring the need for Section Three,” they wrote.

The brief notes that Section Three expanded its scope from addressing insurrectionists in the Civil War to include future insurrectionists who might violate their oaths of office.

The authors wrote that the Congressional Committee on Reconstruction, which first drafted the amendment, warned that without a disqualification clause, “flagrant rebellion, carried to the extreme of civil war, would become ‘a pastime.’”

In an apparent response to those who believe that Trump should be defeated at the polls instead of removed from the ballot, Faust and Lapore quoted former U.S. Representative John A. Bingham, author of the 14th Amendment, writing that the amendment “‘towers above all party consideration; it touches the life of the Republic, and not the miserable inquiry whether this or that party should be successful in the coming contest.’”

“Reconstruction would only be as good or as worthy as its laws, if indeed Constitutional law could be newly forged so as to curb the urges of embittered, defeated men,” they wrote.

Faust and Lepore wrote the authors of some amicus briefs filed in support of Trump — which claim that there was no fear of a Davis presidency — are “not historians” and are “mistaken” in their assertions.

Lepore, who will join the Harvard Law School faculty in July, has previously compared Trump to Davis. In a December piece in The New Yorker, Lepore wrote that “sometimes it feels as if the century and a half separating the trial of Jefferson Davis from the trials of Donald Trump were as nothing.”

The brief does not directly address the former president’s actions nor answer whether he engaged in an insurrection.

This is not the first time Faust has sparred with Donald Trump. During her tenure as University president, Faust called Trump’s proposed tax on university endowments a “blow at the strength of American higher education” and signed a letter opposing Trump’s January 2017 executive order on immigration.

The Supreme Court will hear Trump v. Anderson on February 8.

—Staff writer S. Mac Healey can be reached at mac.healey@thecrimson.com. Follow him on X @MacHealey.

—Staff writer Saketh Sundar can be reached at saketh.sundar@thecrimson.com. Follow him on X @saketh_sundar.