14th Amendment, Section 3: A new legal battle against Trump takes shape
Efforts to disqualify Trump from state ballots are starting to materialize.By Hannah Demissie and Laura Gersony
August 25, 2023, 5:08 PM
Former President Donald Trump's legal battles are piling up: in Washington, Georgia, New York -- the list goes on.
But even if all of those cases work out in his favor, advocates say a new legal challenge could still sideline him.
Separate from the criminal cases, over the past few weeks a growing body of conservative scholars have raised the constitutional argument that Trump's efforts to overturn the results of the 2020 election make him ineligible to hold federal office ever again.
That disqualification argument boils down to Section 3 of the U.S. Constitution's 14th Amendment, which says that a public official is not eligible to assume public office if they "engaged in insurrection or rebellion against" the United States, or had "given aid or comfort to the enemies thereof," unless they are granted amnesty by a two-thirds vote of Congress.
Advocacy groups have long argued that Trump's behavior after the 2020 election fits those criteria. The argument gained new life earlier this month when two members of the conservative Federalist Society, William Baude and Michael Stokes Paulsen, endorsed it in the pages of the Pennsylvania Law Review.
"If the public record is accurate, the case is not even close. He is no longer eligible to the office of Presidency," the article reads.
Since then, two more legal scholars -- retired conservative federal judge J. Michael Luttig and Harvard Law Professor Emeritus Laurence Tribe -- made the same case in an article published in The Atlantic.
"The disqualification clause operates independently of any such criminal proceedings and, indeed, also independently of impeachment proceedings and of congressional legislation," they wrote. "The clause was designed to operate directly and immediately upon those who betray their oaths to the Constitution, whether by taking up arms to overturn our government or by waging war on our government by attempting to overturn a presidential election through a bloodless coup."
The argument even got raised on the Republican presidential debate stage in Milwaukee this week.
"Over a year ago, I said that Donald Trump was morally disqualified from being president again as a result of what happened on January 6th. More people are understanding the importance of that, including conservative legal scholars," Arkansas Gov. Asa Hutchinson said, eliciting a mix of cheers and boos from the audience. "I'm not going to support somebody who's been convicted of a serious felony or who is disqualified under our Constitution."
Baude and Paulsen maintain their theory is "self-executing." They say that means that public elections officials don't need special permission from lawmakers to disqualify Trump from the ballot: if they believe the argument is valid, they can disqualify potential candidates on their own.
Not only that, the scholars argue, the election officials are legally required to do so.
"No official should shrink from these duties. It would be wrong -- indeed, arguably itself a breach of one's constitutional oath of office -- to abandon one's responsibilities of faithful interpretation, application, and enforcement of Section Three," Bode and Paulsen write.
Alternatively, ordinary citizens could file challenges on the same grounds with state election officials themselves.
Either scenario is almost certain to face legal and political blowback, and the argument could end up before the U.S. Supreme Court.
The most immediate hurdle for those disqualification efforts might be timing as the legal challenges must be brought during specific time periods that vary depending on the state where they are brought.
