Is Donald Trump disqualified from taking office because of the 14th Amendment?
He is the current clear front runner of the Republican Party despite 4 criminal indictments in 4 jurisdictions and 91 charges of criminal acts. Two of the indictments charge him with crimes related to trying to overturn a free and fair election for president. He is charged with not only supporting an effort to stay in power as president when he lost an election, but lying about it when he knew better. His supporters breached the capitol with the goal of disrupting the Electoral College count in a last ditch Hail Mary effort to create enough chaos to throw the decision about the presidency to the House where the higher number of red states could declare him the winner of the election he had lost to Joe Biden. We now know that he knowingly sat by watching the attack on our capitol which endangered his own vice president’s life not to mention the lives of other lawmakers, but did not call off his supporters despite many people begging him to call them off. And once he did tell them to go home, they obeyed.
SECTION 3 OF THE 14TH AMENDMENT IS THE “DISQUALIFICATION CLAUSE”
No Person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the
same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
If January 6th was an insurrection or rebellion against the government, Trump, who took an oath of office to uphold the constitution and laws of the land when he was sworn in as president in 2017, would not need to have been an active insurrectionist breaking windows or hitting the capitol police with flagpoles or taking a dump in the hallway or breaking into Nancy Pelosi’s office, putting his feet up on her desk and taking a selfie to post on social media to be disqualified under the 14th Amendment. If Trump gave aid or comfort to the MAGAs who did do this stuff, section 3 of the 14th Amendment says he is disqualified from serving in an elected position in government ever again.
PROMINENT CONSTITUTIONAL LAWYERS SAY TRUMP IS DISQUALIFIED
Two prominent Constitutional lawyers from both sides of the political world agree that Donald Trump is disqualified. Lawrence Tribe and Michael Luttig hail from opposite poles of the political world. J. Michael Luttig is a former federal judge on the U.S. Court of Appeals for the Fourth Circuit. Laurence H. Tribe is the Carl M. Loeb University Professor of Constitutional Law Emeritus at Harvard University.
Tribe is politically liberal. Luttig is politically conservative. But they both agree that Trump should be disqualified from ever serving again not only as president but in any other elected role. He is automatically disqualified just as someone who is not a natural born citizen is not able to run for president. His disqualification is definitional. His name should not appear as an option on the ballot based on section 3 of the 14th Amendment because he would not be legitimately able to serve as president. They are joined by many other Constitutional lawyers (Baude and Paulsen) and other members of the Federalist Society in their agreement that Trump should be kept off of the ballot because if he wins the presidency he would be automatically disqualified from taking office.
As students of the United States Constitution for many decades—one of us as a U.S. Court of Appeals judge, the other as a professor of constitutional law, and both as constitutional advocates, scholars, and practitioners—we long ago came to the conclusion that the Fourteenth Amendment, the amendment ratified in 1868 that represents our nation’s second founding and a new birth of freedom, contains within it a protection against the dissolution of the republic by a treasonous president.
Baude and Paulsen are two of the most prominent conservative constitutional scholars in America, and both are affiliated with the Federalist Society, making it more difficult for them to be dismissed as political partisans. Thus it is all the more significant and sobering that they do not hesitate to draw from their long study of the Fourteenth Amendment’s text and history the shattering conclusion that the attempted overturning of the 2020 presidential election and the attack on the Capitol, intended to prevent the joint session from counting the electoral votes for the presidency, together can be fairly characterized as an “insurrection” or “rebellion.” They write:
The bottom line is that Donald Trump both “engaged in” “insurrection or rebellion” and gave “aid or comfort” to others engaging in such conduct, within the original meaning of those terms as employed in Section Three of the Fourteenth Amendment. If the public record is accurate, the case is not even close. He is no longer eligible to the office of Presidency, or any other state or federal office covered by the Constitution.
At the time of the January 6 attack, most Democrats and key Republicans described it as an insurrection for which Trump bore responsibility. We believe that any disinterested observer who witnessed that bloody assault on the temple of our democracy, and anyone who learns about the many failed schemes to bloodlessly overturn the election before that, would have to come to the same conclusion. The only intellectually honest way to disagree is not to deny that the event is what the Constitution refers to as “insurrection” or “rebellion,” but to deny that the insurrection or rebellion matters. Such is to treat the Constitution of the United States as unworthy of preservation and protection.
GEORGE WASHINGTON ANTICIPATED DONALD TRUMP
We will not attempt to express this constitutional injunction better than did George Washington himself in his “Farewell Address” to the nation, in 1796:
The basis of our political systems is the right of the people to make and to alter their Constitutions of Government. But the Constitution which at any time exists, till changed by an explicit and authentic act of the whole people, is sacredly obligatory upon all. The very idea of the power and the right of the people to establish Government presupposes the duty of every individual to obey the established Government.
All obstructions to the execution of the Laws, all combinations and associations, under whatever plausible character, with the real design to direct, control, counteract, or awe the regular deliberation and action of the constituted authorities, are destructive of this fundamental principle, and of fatal tendency …
However combinations or associations of the above description may now and then answer popular ends, they are likely, in the course of time and things, to become potent engines, by which cunning, ambitious, and unprincipled men will be enabled to subvert the power of the people, and to usurp for themselves the reins of government; destroying afterwards the very engines which have lifted them to unjust dominion.
CHALLENGES ARE ALREADY HAPPENING
A Florida lawyer is challenging former President Trump’s ability to run for president in 2024 under the U.S. Constitution’s 14th Amendment, citing the Jan. 6, 2021, Capitol attack.
Lawrence Caplan, a tax attorney in Palm Beach County, filed the challenge in federal court Thursday, pointing to a clause in the amendment that says those who “have engaged in insurrection or rebellion” against the government cannot hold office.
In Nevada another challenge is going on.
Free Speech For People (FSFP) and Mi Familia Vota Education Fund (MFVEF) released a letter today which they recently delivered to Nevada Secretary of State Cisco Aguilar urging him to bar former President Donald Trump from the ballot.
In Arizona another challenge is going on.
Arizona’s secretary of state (Adrian Fontes) is the latest to say his office is grappling with the potential effects of a move to block Trump from the ballot.
HOW WILL THIS PLAY OUT?
No matter who tries to keep Trump off of the ballot, the ultimate decision about whether section 3 of the 14th Amendment disqualifies Trump from serving as president will be decided by the Supreme Court. Let’s predict that all of the red states put Trump on the ballot and the blue states refuse to, and the issue of Trump’s qualification comes down to a handful of so-called purple states, the way it always does. The states that would make the difference in the outcome are, as usual, the swing states: Nevada, Georgia, Wisconsin, Pennsylvania, Arizona, Michigan, and North Carolina.
Trump will certainly face challenges in those states about whether he can appear on the ballot. The GOP will challenge these efforts to keep Trump off the ballot. The matter will go up to the Supreme Court. The time to make a determination about Trump being on the ballot is before the primary voting begins. Starting very soon, secretaries of state need to know who is eligible for their state primaries.
BUT SHOULD TRUMP BE KEPT OFF THE BALLOT?
Even though it is clear from the plain language of the 14th Amendment that the disqualification clause applies to Donald Trump, there is a separate issue that needs to be considered. Our country is experiencing an authoritarian movement that is currently led by Trump but has erupted into a broader movement that will go on with or without him. If Trump is kept off the ballot it will not cure this problem which imperils our country. The greater problem we face in America today is that millions of people do not care about preserving the rule of law or our constitutional democracy.
This is a failure of our education system, in part, because too few Americans understand the value of living in a democracy as opposed to an autocracy or dictatorship. They have not lived in a country that deprives them of their rights and freedoms. (Unless they are people of color who have experienced a two tiered biased justice system!) With the advent of abortion bans, book bans, attacks on LGBTQ people, Gov De Santis abruptly removing elected States Attorneys in Florida because he doesn’t like them, and the Tennessee Three getting ousted from the state house because they dared to represent their constituents who want reasonable limits on who can get guns, as well as other dictatorial power grabs by Republicans, Americans are beginning to understand what’s so bad about dictatorships.
There is only one way to burn out the MAGA movement and using a process argument such as the disqualification clause of the 14th Amendment will not do the trick. Voters need to rise up and vote in large numbers to reject the movement. That effort of rejection began in 2018 and then in 2020 with the massive defeat of people who spouted the Big Lie. People like Kari Lake who ran for governor of Arizona, and other Republicans who went along with Trump’s Big Lie, lost their elections and did accept defeat. But the Republican Party did not shut down Trump and Trumpism. If anything, what we see in the GOP these days is a continued faith in MAGA Republicanism with Vivek Ramaswamy trying to pass himself off as a Trump mini-me and almost all of the Republican hopefuls raising their hands to vow allegiance to Trump if he becomes the nominee of their party. Shame on them. Shame on the Republican Party for that matter.
We have a long way to go, but the way to end this fever is not to use what would be seen as a process argument, a mechanical device that bars Trump from office, because it will only inflame his apologists. Trump and Trumpism has to be repelled over and over and over again by voters, by the legal system and by voices from rational respected GOP leaders until the fever breaks.