Trump Challenger, Seeking to Disqualify Trump, Plans Second Appeal to Supreme Court

A presidential candidate plans to ask the highest court to reverse a lower court’s rejection of his bid to disqualify President Trump from 2024 candidacy.
Trump Challenger, Seeking to Disqualify Trump, Plans Second Appeal to Supreme Court
Former President Donald Trump prepares to testify during his trial in New York State Supreme Court in New York City on Nov. 6, 2023. (David Dee Delgado/Getty Images)
Gary Bai

Republican presidential candidate John Castro is preparing another long-shot bid to petition the U.S. Supreme Court to reverse an appeals court’s decision that rejected his lawsuit to disqualify President Trump from 2024 candidacy, Mr. Castro told The Epoch Times in a statement on Monday.

It would be the next episode of the Texan candidate’s bid to remove President Trump from the primary ballot in the 2024 presidential election, and one of the many lawsuits that seek to disqualify the former president by employing a provision of the Constitution that bars officials who have “engaged in insurrection or rebellion” from holding office, also known as Section Three of the 14th Amendment.

Mr. Castro, 40, made headlines earlier this year for his lawsuits against former President Donald Trump, in which he argued that President Trump engaged in insurrection against the United States by virtue of his actions and words related to the Jan. 6, 2021, Capitol breach, and therefore must be disqualified from holding federal office by Section Three. Around its passage in the 19th century, this provision pertained to members of the Confederacy in the American Civil War.

In recent months, courts in Florida, New Hampshire, Minnesota, and Michigan have dismissed Mr. Castro’s lawsuits, mostly for procedural or jurisdictional reasons, such as Mr. Castro’s lack of standing or the courts’ refraining from ruling on a political question. The Supreme Court already rejected an appeal by Mr. Castro without a recorded vote or rationale in October, which arose from Mr. Castro’s failed disqualification case against Trump in Florida.

More recently, the United States Court of Appeals for the First Circuit dismissed Mr. Castro’s appeal of a ruling in New Hampshire. The appeals court reasoned that Mr. Castro failed to show that he suffered “injury in fact”—a required component for bringing the case under Section Three—by President Trump’s candidacy, because Mr. Castro’s claim that his votes would be taken away during the 2024 election (should President Trump run) is “too speculative” as of the time Mr. Castro filed his complaint.

Mr. Castro disagreed with the finding by the First Circuit Court of Appeals.

“The evidentiary record clearly supported my assertion that I was ‘directly and currently competing’ against Trump,” Mr. Castro wrote in a statement on Monday, “so the First Circuit invented a dangerous new legal theory to deny a finding of injury when it held that I showed only a ‘nominal appearance on the ballot’ despite paying a $1,000 filing fee.”

The candidate asserted that the First Circuit’s decision makes the judiciary “arbiters of who is in is not a viable candidate,” which, he says, “ironically violates the political question doctrine” that courts have used as a rationale to dismiss his lawsuits.

Noting that his case meets the “absolute bare constitutional minimum to establish standing,” Mr. Castro says he expects a better outcome in a separate lawsuit he filed in a federal court in Arizona, where the judge has yet to make a decision on the merits or standing of his case.

“[The First Circuit case] was just testing ground for the real case in Arizona.” Mr. Castro wrote. “Trump’s lawyers now showed me their best legal argument, and I am responding accordingly.”

Laurence Tribe, Professor Emeritus at Harvard Law School and a supporter of the theory that Section Three warrants President Trump’s disqualification, commented that Mr. Castro is unlikely to succeed due to technical defects in his case.

Mr. Castro’s lawsuits, Mr. Tribe told The Epoch Times in an interview on Nov. 29, “get in the way of serious consideration of well-designed lawsuits brought by voters who have standing under the law of states like Colorado,” referring to a case brought by a group of Colorado voters backed by non-profit Citizens for Responsibility and Ethics in Washington (CREW), which is currently pending in the Colorado Supreme Court.

“It is true that competitor standing might be established by someone like Chris Christie, who is a serious competitor of Donald Trump. But for somebody random to say, I’m a competitor, and I’m being blocked by Donald Trump, when there is no factual basis for supposing that Mr. Castro might otherwise become the nominee of the Republican Party—he’s doing a disservice to the constitutional cause that I think he is interested in pursuing,” Mr. Tribe said.

President Trump’s campaign did not respond to requests for comment by press time.

The Colorado Case

Courts around the country, citing jurisdictional issues, have generally refrained from commenting on the merits of disqualification cases against President Trump.

That is with the exception of a district court in Colorado, where District Judge Sarah B. Wallace wrote that President Trump “engaged in insurrection,” but dismissed the case by a technical rationale—that Section Three does not apply to President Trump, because the provision applies only to an “Officer of the United States,” which she said does not include the president.

Judge Wallace’s opinion prompted both the plaintiffs and President Trump to appeal to the Colorado Supreme Court—for separate reasons. President Trump’s lawyers took issue with Judge Wallace’s interpretation that the former President had engaged in insurrection, while the plaintiffs disagreed with her ruling that Section Three does not apply to President Trump.

The Colorado Supreme Court agreed to take up the case and has scheduled oral arguments for Dec. 6.

Experts have diverged on questions relating to whether President Trump engaged in insurrection on Jan. 6, whether Section Three applies to President Trump’s case, and whether the judiciary has the proper jurisdiction to enforce the disqualification of a former president.

The disqualification theory gained momentum after two legal scholars associated with the Federalist Society, William Baude and Michael Stokes Paulsen, argued in a paper that Section Three of the 14th Amendment is not limited to the Civil War, supersedes free speech principles of the First Amendment, covers the presidency in its scope, and disqualifies President Donald Trump from 2024 candidacy.

Alan Dershowitz, a retired professor at Harvard Law School, had a different interpretation of the provision than Mr. Baude and Mr. Paulsen.

“A fair reading of the text and history of the 14th Amendment makes it relatively clear, however, that the disability provision was intended to apply to those who served the Confederacy during the Civil War,” Mr. Dershowitz wrote in an article published in Compact Magazine in August, echoing his comments to The Epoch Times earlier this year that “the only way [Trump] can be disqualified is if they can prove that he actually fought in the Civil War for the South.”

In response to the Section Three lawsuits, President Trump wrote on Truth Social in September that they are merely “election interference” and represent “just another ’trick' being used by the Radical Left Communists, Marxists, and Fascists, to again steal an Election.”