Two conservative legal scholars say Donald Trump is immediately precluded from holding office as president due to a 14th Amendment provision that disqualifies anyone who engaged in an insurrection against the United States. Meanwhile, the executive director of an organization that promotes ethical government in Washington, D.C., says he and and his team intend to take legal action to ensure that Trump is declared ineligible to serve. In a post at Salon -- under the headline "Immediate disqualification: “Abundant evidence” shows Trump engaged in insurrection and cannot be president, Federalist Society members write; Conservative legal scholars say Constitution bars Trump from office," Igor Derysh reports:
Two prominent conservative legal scholars determined that former President Donald Trump is ineligible to be president under a provision in the Constitution barring people who engaged in insurrection from office.
Professors William Baude of the University of Chicago and Michael Stokes Paulsen of the University of St. Thomas — both members of the conservative Federalist Society (FedSoc) — studied the question for more than a year and detailed their findings in an article set to be published next year in the University of Pennsylvania Law Review, according to The New York Times.
"When we started out, neither of us was sure what the answer was," Baude told the outlet. "People were talking about this provision of the Constitution. We thought: 'We're constitutional scholars, and this is an important constitutional question. We ought to figure out what's really going on here.' And the more we dug into it, the more we realized that we had something to add."
The professors' conclusion, he said, is that Trump "cannot be president — cannot run for president, cannot become president, cannot hold office — unless two-thirds of Congress decides to grant him amnesty for his conduct on Jan. 6."
Does that mean Trump's 2024 presidential campaign is toast? No. But it does mean he could face a significant hurdle if an entity or individual with sufficient resources is determined to see that he is blocked from serving. That's where Citizens for Responsibility and Ethics in Washington (CREW) and Executive Director Noah Bookbinder enter the picture. Bookbinder has written at X (formerly Twitter):
The 14th amendment says that anyone who swore an oath to support the constitution and then engaged in insurrection is disqualified from holding office. That includes Donald Trump, and it does NOT require a conviction for insurrection, or even charges. Let's break that down:
This issue raises a number of thorny questions, and Bookbinder addresses several of them. How did the constitutional provision in question come to be? From Bookbinder:
This provision was put in place after the civil war to ensure that those who rose up against the United States would not then be put in charge of it. Many former confederate officials did not even try to hold office because of it; courts disqualified others who did.
How has this provision been applied in the past?
Last year a court in New Mexico, in a case brought by New Mexico residents represented by @CREWcrew, disqualified a county commissioner who played a role in the Jan. 6 insurrection, including organizing and encouraging the violent mob.
That court, like those that came before, made clear that a criminal conviction was not required. Proving to the court by a preponderance of evidence that someone who had sworn the oath to the constitution then engaged in insurrection triggered the disqualification.
If Trump goes berserk, how does this get enforced? We're not sure about the "Trump goes berserk" part, but Bookbinder answers the main part of the question:
The provision can be enforced by lawsuits to remove someone from office or to remove someone from the ballot, or by action from an appropriate state official like a Secretary of State to remove someone. Lawsuits vary by state law, but often can be brought by ordinary citizens.
This sounds complicated and messy. Can this actually happen in real life? Our answer: We've never had a president like Trump before, so this provision has flown under the radar of many Americans. But Trump's brazen actions and loud mouth have brought it out of the woodwork. It is not, writes Bookbinder, all that complicated:
Disqualification for insurrection is not a punishment. It is simply one of the constitutional requirements for office, like that you have to be 35 and a native born citizen to be president.
What could lie ahead? The Federalist Society professors shine light on that question, per Salon:
The article similarly notes that Section 3 is "self-executing, operating as an immediate disqualification from office."
The article argues that there is "abundant evidence" that Trump engaged in an insurrection, citing his efforts to change vote counts through threats and intimidation and urging his supporters to march on the Capitol.
"It is unquestionably fair to say that Trump 'engaged in' the Jan. 6 insurrection through both his actions and his inaction," the article said.
What do other legal experts say? Here is a sample from Derysh's Salon piece, with more details from the FedSoc professors:
Steven Calabresi, a law professor at Northwestern and Yale and a founder of the Federalist Society, called the 126-page article a "tour de force." . . .
The article argues that the "full legal consequences" of Section 3 "have not been appreciated or enforced."
"It can and should be enforced by every official, state or federal, who judges qualifications," the article says.
"Section Three covers a broad range of conduct against the authority of the constitutional order, including many instances of indirect participation or support as 'aid or comfort,'" the article's abstract said. "It covers a broad range of former offices, including the Presidency. And in particular, it disqualifies former President Donald Trump, and potentially many others, because of their participation in the attempted overthrow of the 2020 presidential election."
Calabresi told The Times that election administrators must act.
"Trump is ineligible to be on the ballot, and each of the 50 state secretaries of state has an obligation to print ballots without his name on them," he told the outlet, adding that they may be sued if they refuse.
Trump is also facing prosecution for his role in the post-election scheme, but that case and Section 3 address "completely separate questions," Baude told The Times.
"The question of should Donald Trump go to jail is entrusted to the criminal process," he said. "The question of should he be allowed to take the constitutional oath again and be given constitutional power again is not a question given to any jury."
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