Can Trump Be Disqualified From The Presidency? Why Even Conservative Legal Experts Are In Favor Of It


Former President Donald Trump’s multiple indictments for his efforts to overturn the 2020 election and a new article by prominent conservative legal scholars has sparked a debate among legal experts about whether Trump is disqualified from serving as president again under the 14th Amendment, which is likely to soon play out in court as the 2024 election nears.

Key Facts

Section three of the 14th Amendment, enacted in the aftermath of the Civil War, states no person shall “hold any [state or federal] office” if they’ve previously taken an oath of office and then “engaged in insurrection or rebellion against the [U.S.], or given aid or comfort to the enemies thereof.”

Conservative legal scholars William Baude and Michael Stokes Paulson said in a forthcoming law review article, now published as a preprint, that the January 6, 2021, rebellion disqualifies Trump under the 14th Amendment, arguing the section is still in effect and is “ready for use,” and state officials can bar Trump from the ballot without any additional legislation or court rulings expressly permitting it.

That sentiment has been echoed by other legal experts, including others on the right, with Northwestern University law professor Steven Calabrisi, a founder of the conservative Federalist Society, writing that Trump encouraging his supporters to “fight like hell” ahead of January 6 and then failing to intervene once the insurrection started constitutes aiding in the insurrection, even without being convicted of inciting it.

Conservative legal scholar J. Michael Luttig and left-leaning Laurence Tribe jointly wrote for the Atlantic in support of Trump being disqualified under the 14th Amendment, arguing, “No person who sought to overthrow our Constitution and thereafter declared that it should be ‘terminated’ and that he be immediately returned to the presidency can in good faith take the oath” required of presidents.

Others have taken the opposite view: Stanford Law professor Michael McConnell wrote that while he has “low regard” for Trump, letting secretaries of state disqualify political opponents from the ballot would be “profoundly anti-democratic” and he doesn’t believe January 6 rises to the level of an insurrection, warning disqualifying Trump “could empower partisans to seek disqualification every time a politician supports or speaks in support of the objectives of a political riot.”

Harvard University law professor Noah Feldman also opposed the 14th Amendment strategy in a Bloomberg op-ed, noting a 1869 circuit court ruling held section three of the amendment could only go into effect if Congress passed legislation directing it to be implemented (which Baude and Paulson’s piece argues should be overturned).

Crucial Quote

“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,” Baude and Paulson wrote. “He is no longer eligible to the office of Presidency, or any other state or federal office covered by the Constitution.”

Chief Critic

“The amendment should be interpreted as … an enormous last resort and maybe January 6 rose to that level,” McConnell told the Guardian. “It certainly was a much more serious civil disturbance than we usually see. But whether it’s actually an insurrection. I think it’s a bit of a stretch.”

What To Watch For

The left-leaning group Free Speech for People has already filed requests with officials in 10 states to disqualify Trump from the ballot, though there’s no indication any will be successful. Ethics watchdog Citizens for Responsibility and Ethics in Washington also intends to bring multiple lawsuits contesting Trump’s candidacy, executive director Noah Bookbinder told the Guardian. The best shot at a lawsuit succeeding Trump’s candidacy would likely be from a rival candidate, the publication notes, and Calabrisi has encouraged candidate Chris Christie to sue. There’s no sign any of Trump’s GOP rivals so far plan to bring litigation, though Arkansas Gov. Asa Hutchinson suggested Sunday Trump might not be qualified to run for office and said he believes “there should be a court declaration” on the issue. Ultimately, the dispute is likely to end up before the Supreme Court, McConnell told the Guardian.

Key Background

The discussion around Trump’s eligibility under the 14th Amendment comes after critics previously tried to deploy the amendment in the 2022 midterms, with mixed results. An effort to bar Rep. Marjorie Taylor Greene (R-Ga.) from the ballot over her support of January 6 ultimately failed, with an administrative law judge ruling that “the evidence [Greene engaged in the insurrection] is lacking, and the Court is not persuaded.” Critics also sought to kick former Rep. Madison Cawthorn (R-N.C.) off the ballot, an effort that was ultimately mooted by Cawthorn losing his primary race, but did result in a federal appeals court ruling holding candidates can be disqualified under the 14th Amendment, despite a 19th century-era law that was passed to ensure ex-Confederates could still hold office. Couy Griffin, a local commissioner in New Mexico, was also removed from office and barred from holding office again because of his role in the January 6 riot, marking the first time the 14th Amendment had been used to remove someone since 1869.

Further Reading

The Sweep and Force of Section Three (University of Pennsylvania Law Review)

The Constitution Prohibits Trump From Ever Being President Again (The Atlantic)

Could Trump be barred under the constitution’s ‘engaged in insurrection’ clause? (The Guardian)

Alas, Trump Is Still Eligible to Run for Office (Bloomberg)

Trump Is Disqualified from Being on Any Election Ballots (Reason)

Prof. Michael McConnell, Responding About the Fourteenth Amendment, “Insurrection,” and Trump (Reason)

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