Opinion: Trump should be constitutionally disqualified

By JONATHAN P. BAIRD

Published: 09-05-2023 6:00 AM

Jonathan P. Baird lives in Wilmot.

We are well over a year out from the 2024 presidential contest in November 2024 and most political commentators are assuming the race will be between Joe Biden and Donald Trump. That is the conventional wisdom, but in this instance, the conventional wisdom may well be wrong.

Even though it will greatly disappoint many of his followers, under the 14th Amendment, Donald Trump is likely disqualified from running for president in 2024. Section 3 of the 14th Amendment excludes from future office and position of power in the U.S. government any person who took an oath to support and defend the Constitution but then engaged in and gave aid and comfort to an insurrection against it.

This provision of the Constitution, known as the Disqualification Clause, can only be overcome by a two-thirds vote of both Houses of Congress. The Disqualification Clause has been overlooked even though it is still perfectly good law. It came about in the aftermath of the Civil War. The framers of the Reconstruction amendments, including the 14th, determined that public officials who tried to overturn the government by force should be barred from leading it.

Sen. John Henderson of Missouri, a framer of Section 3, explained that the Disqualification Clause bars “from office the leaders of the past rebellion as well as the leaders of any insurrection or rebellion hereafter to come.” That fits Trump to a tee. The provision was not limited to past rebellions.

There are a number of constitutional limitations on who can serve as president. These include being at least 35 years old, being a natural-born U.S. citizen, and being a U.S. resident for at least 14 years. Also, presidents cannot be elected more than twice.

Two prominent conservative legal scholars, William Baude and Michael Stokes Paulsen, have persuasively made the case for Trump’s legal disqualification in their much-discussed upcoming law review article. They argue Section 3 “remains of direct and dramatic relevance today.”

They also argue Section 3 is “self-executing, operating as an immediate disqualification from office, without the need for additional action by Congress.” By that, they mean that no criminal charge or conviction is necessary for a person to be adjudged disqualified.

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Of course, big questions abound around enforcement of the disqualification and undeniably legal challenges will ensue. The case will almost certainly end at the U.S. Supreme Court but it is clear that Section 3 of the 14th Amendment can be enforced against Trump through civil proceedings in state court. State officials can determine what names can appear on the ballot for presidential elections. They can conclude a candidate is constitutionally prohibited from assuming office.

In 2022 exactly this process occurred when a New Mexico county commissioner and Cowboys for Trump founder, Couy Griffin, was removed from office for his role in the January 6 attack on Congress. The standard of proof required in a civil disqualification case is “preponderance of the evidence” which means more likely than not.

The evidence in Trump’s case is overwhelming. After taking the oath of office in 2017, Trump played a central role in causing an insurrection that nearly overthrew an election and almost shattered our democracy. The attack on the Capitol on January 6, 2021, was not a spontaneous event.

As the Citizens for Responsibility and Ethics on Washington (CREW) have written January 6 “was the culmination of a multi-part scheme by the former president and his allies to use lies, intimidation, coercion and ultimately violence to keep Trump in office and invalidate the votes of the more than 80 million Americans who cast ballots for Joseph R. Biden in the 2020 presidential election.”

Those who say that Trump didn’t engage in an insurrection against the Constitution have an extremely uphill argument. Trump spread false claims of a stolen election before and after he exhausted legal challenges. He promoted fake elector schemes and led efforts to coerce government officials, including his own vice president, to help overturn a lawful election. He summoned a violent mob for a “wild” protest. On January 6, he incited the mob “to fight like hell” and he watched the attack on the Capitol for three hours and refused to call off the mob. For the first time in U.S. history, a mob, at the direction of the former president, disrupted the peaceful transfer of power.

In a December 2022 post on Truth Social, Trump called for termination of the Constitution in order to restore himself to power. As CREW has written “he is the living embodiment of the threat that the Fourteenth Amendment’s framers sought to protect American democracy against when they banned constitutional oath-breakers from office.”

In making this argument, I don’t minimize barring someone from the ballot. Most of the arguments I have seen opposing the relevance of the Disqualification Clause focus on the momentous decision to exclude Trump from the ballot. Millions of Americans still want to vote for him.

The legal scholar Noah Feldman says state election officials who blocked Trump would face “an enormous amount of trepidation” making such “an epochal decision absent judicial guidance.” There is also worry about the precedent of striking contenders from the ballot as leading to future electoral trouble.

To avoid electoral problems since a case around these questions will end at the Supreme Court, the Court should fast-track it once cases are filed in states. I do believe such cases will be filed. While the Supreme Court has repeatedly discredited itself, I would not predict how it would resolve the Section 3 questions but it could be done in a way that would not lead to election confusion.

As a political matter, refusing to hold Trump accountable will only embolden future authoritarians. It is dangerous not to invoke Section 3. The Constitution remains the supreme law of the land and the language of Section 3 is straightforward and clear.

Who thinks that if Trump is the Republican nominee in 2024 he will not make the exact same claims about a rigged and stolen election that he made in 2020? Given his legal desperation, you can bet on it. Also, it is highly predictable if he is on the ballot and loses that Trump and his allies will again resort to extra-legal measures and violence. Learning from their failure on January 6, expect something worse from the Trump team.

Section 3 is the peoples’ constitutional protection against demagogues. History shows its necessity. Its invocation is critical to the continuation of our democracy.

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