GOP lawyer with ties to three Trump rivals enters 14th Amendment fray
The attorney represents a private individual, not any of the campaigns, as he explores whether Trump should be ruled ineligible to run for president
By Amy GardnerPatrick Marley
and
Yvonne Wingett Sanchez
September 12, 2023 at 5:50 p.m. EDT
A Republican election lawyer with ties to three of former president Donald Trump’s GOP primary opponents has joined a crowded field of individuals and groups exploring whether the former president can be kept off the ballot for his role in fomenting the violent attack on the U.S. Capitol on Jan. 6, 2021.
Jason Torchinsky, a partner with the Virginia law firm Holtzman Vogel, has in recent days initiated conversations about the idea of trying to disqualify Trump with a range of figures, including a Democratic secretary of state, fellow election lawyers and a retired federal judge who has helped lead the push to question Trump’s eligibility, according to multiple people familiar with the calls, who spoke on the condition of anonymity to discuss private conversations.
The lawyer’s involvement reflects the latest escalation in an emerging legal fight over a once-obscure provision of the Constitution. The tussle has produced surprising alliances, and analysts say it will probably end with a ruling on Trump’s eligibility from the Supreme Court.
Torchinsky’s firm has done legal work for the campaigns of former New Jersey governor Chris Christie and businessman Vivek Ramaswamy, as well as for Never Back Down, the political action committee promoting the presidential campaign of Florida Gov. Ron DeSantis.
Torchinsky, a longtime GOP election lawyer who has also represented the Republican National Committee, is researching the issue not for Trump’s rivals but for Jacob Harriman, the founder of a nonpartisan service organization called More Perfect Union, Harriman said in a statement to The Washington Post.
“It is critical to understand if there is a legitimate risk of nominating a candidate who could be deemed to be ineligible for office,” Harriman said. Torchinsky declined to comment.
The push to disqualify Trump adds to the already complicated web of legal battles consuming his 2024 campaign, which he is pursuing even as he faces four criminal prosecutions and several civil claims. One federal and one Georgia case accuse the former president of seeking to illegally overturn the 2020 election. Another federal case accuses him of mishandling classified documents after he left the White House. In New York, Trump is charged with falsifying business records in connection with hush money paid to adult-film actress Stormy Daniels during the 2016 campaign.
Yet the debate about Trump’s eligibility reflects the growing anxiety among his critics that even as an alleged felon, he has a realistic chance of winning the election. Trump holds a commanding lead in polls over his Republican primary rivals, and national surveys show him neck and neck in a general-election showdown with President Biden.
At issue is a line in the 14th Amendment, ratified three years after the Civil War, to block from office any public official who had “engaged in insurrection or rebellion” — intended to prevent traitorous former Confederates from regaining power.
That seemingly antiquated provision is at the center of multiple legal skirmishes across the country over the potentially explosive modern-day question of whether Trump should be declared ineligible to return to the White House.
Advocacy groups and individual voters in at least a dozen states have filed or explored filing lawsuits to block Trump from state ballots next year. Lawyers on both sides have predicted that the dispute may ultimately be resolved by the Supreme Court. Legal challenges have been filed in New Hampshire and Wisconsin, among other states, with election officials and interest groups saying many more are probably on the way. On Tuesday, a liberal group filed suit in Minnesota. Advocates have debated whether to focus on the primary or the general-election ballot.
Two attempted challenges, in Florida, have already been thrown out on the grounds that the groups of voters bringing the cases lacked standing. A case in Colorado, filed last week by a group of voters and the D.C.-based Citizens for Responsibility and Ethics in Washington, may fare better on that principle given a state law that allows any voter to challenge a candidate’s eligibility.
In a sign of further escalation of the debate, the Trump campaign on Tuesday sent a letter to New Hampshire Secretary of State David Scanlan (R) — signed by scores of Republican state lawmakers — urging him not to remove Trump from the ballot.
“There is no legal basis for these claims to hold up in any legitimate court of law,” the letter states. “The opinions of those perpetuating this fraud against the will of the people are nothing more than a blatant attempt to affront democracy and disenfranchise all voters and the former President.”
State election officials are monitoring the expected challenges but have not acted themselves to try to bar Trump from the ballot. Several said in interviews that they believe they have no power to do so under the laws of their states. Instead they are looking to the Supreme Court, they said, to decide such an important and divisive constitutional matter — and to do so quickly, before the election is fully underway.
“There are very serious legal scholars on both sides of the aisle who hold opposing understanding of this provision,” said Jena Griswold (D), the secretary of state in Colorado. “There needs to be some guidance from the courts.”
The issue rose to prominence last month when a pair of conservative law professors affiliated with the Federalist Society argued in a University of Pennsylvania Law Review article that Trump, who holds a wide lead in polls for the Republican nomination, doesn’t qualify to serve as president. They cited his efforts to overturn the 2020 election, including his false claims of fraud, his pressure on public officials to overturn results, his attempt to interfere with the counting of electoral college votes on Jan. 6, 2021, and his failure to act quickly to stop the Capitol attack that day.
“It is notable that more people died, and many more were injured, as a result of the January 6, 2021 attack on the Capitol than died or suffered injuries as a result of the attack on Fort Sumter,” William Baude of the University of Chicago and Michael Stokes Paulsen of the University of St. Thomas wrote, referring to the opening battle of the Civil War.
