CHICAGO (WBBM NEWSRADIO) — As some in Illinois legal and political circles wonder whether this state should follow Colorado's lead and force former president Donald Trump off of the Republican primary ballot over the Jan. 6 insurrection, a local legal scholar said the issue needs careful consideration.
Aziz Huq, a constitutional law professor at the University of Chicago Law School, said he has little doubt the U.S. Supreme Court will hear the Trump campaign's appeal of the Colorado Supreme Court decision.
He cautioned, though, that the so-called “Insurrection Clause” is not about whether a person is fit to be president of the United States.
“The question that’s posed by Section Three is, first: Is this a person who previously took an oath of office? And second: Did they also engage in insurrection, or rebellion, or give aid and comfort?” he told WBBM.
Although it’s clear that the clause barring someone from holding office who’s committed insurrection or rebellion can apply to a former president, Huq said the law is unclear regarding who decides whether Trump’s actions were rebellious.
“It doesn’t tell us whether it has to be Congress that makes that determination; it doesn’t say that the determination has to be made through impeachment; and it doesn’t say that there needs to be a criminal conviction,” he said.
The law dates back to the end of the Civil War. In its original post-war context, Huq said the clause “applied automatically to former confederates.”
While there have been lots of academic writings about the insurrection section, Huq said there have been few, if any court cases testing the language.
Without clear precedent, he said the U.S. Supreme Court will have more leeway than normal to rule.
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