Legal scholars push 14th Amendment 'disqualification' effort to remove Trump from 2024 ballot

By 
 August 29, 2023

A new effort to disqualify former President Donald Trump from even appearing on the ballot in the 2024 election is now fully underway and it involves the invocation of a rarely used section of the 14th Amendment of the U.S. Constitution, the Daily Wire reported.

The effort, pushed by constitutional and legal scholars on both the left and the right, asserts that Trump automatically disqualified himself from ever holding public office by engaging in and supporting an act of "insurrection or rebellion" against the U.S. government -- namely, the Jan. 6 Capitol riot.

Of course, not everybody agrees that Trump is now ineligible for office -- to say nothing of labeling the Capitol riot as an "insurrection or rebellion" -- and the disqualification effort, if actually put into play, will undoubtedly be challenged in a case that will inevitably end up in front of the Supreme Court.

Section 3 of the 14th Amendment

In 1868, in the immediate aftermath of the Civil War, and in order to prevent former Confederate officials from holding office, Congress passed and the states ratified Section 3 of the 14th Amendment.

That clause states, in the relevant part: "No person shall ... hold any office, civil or military, under the United States, ... who, having previously taken an oath, ... as an officer of the United States, ... 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."

The Hill reported last week that a tax attorney in Florida, Lawrence Caplan, filed a federal lawsuit that argues that former President Trump is now disqualified from holding future office due to his purported involvement in the Jan. 6 Capitol riot.

"The bottom line here is that President Trump both engaged in an insurrection and also gave aid and comfort to other individuals who were engaging in such actions, within the clear meaning of those terms as defined in Section Three of the 14th Amendment," Caplan wrote. "Assuming that the public record to date is accurate, and we have no evidence to the contrary, Trump is no longer eligible to seek the office of the President of the United States, or of any other state of the Union."

Making the legal case for Trump's disqualification

Caplan told The Hill that his lawsuit had been inspired by a recent article published in The Atlantic by liberal constitutional law professor Laurence Tribe and conservative former federal Judge J. Michael Luttig, which made the case for why "The Constitution Prohibits Trump From Ever Being President Again."

They argued that former President Trump didn't even need to be charged, much less actually convicted, of engaging in an "insurrection or rebellion" to be disqualified from office, but rather that "The disqualification clause operates independently of any such criminal proceedings and, indeed, also independently of impeachment proceedings and of congressional legislation."

"The former president’s efforts to overturn the 2020 presidential election, and the resulting attack on the U.S. Capitol, place him squarely within the ambit of the disqualification clause, and he is therefore ineligible to serve as president ever again," the two legal scholars wrote. "The most pressing constitutional question facing our country at this moment, then, is whether we will abide by this clear command of the Fourteenth Amendment’s disqualification clause."

Lutting and Tribe, who called upon state-level officials to take it upon themselves to simply declare Trump disqualified and ineligible and remove him from the 2024 ballot in the individual states, were in turn inspired to write their piece in support of a lengthy paper authored by a pair of conservative Federalist Society law professors, William Baude and Michael Stokes Paulsen.

They laid out the case for why the "disqualification clause" was not limited to the Civil War or repealed by Reconstruction Era amnesty; that the clause was "self-executing" and immediate without any other prerequisites; that it overrides and supersedes all other constitutional protections, including due process and the First Amendment; and that it can be broadly interpreted to cover virtually any and all actions by Trump in relation to the Jan. 6 Capitol riot.

"Blatant election interference"

The Daily Wire noted that the Trump disqualification idea, while championed by some of the former president's staunchest opponents, has received plenty of criticism and pushback from other legal scholars, as well as, obviously, Trump and his campaign team.

In an April article from The Washington Post about leftist groups that were considering using the 14th Amendment disqualification clause against Trump, campaign spokesman Steven Cheung said in a statement, "What these undemocratic organizations are doing is blatant election interference and tampering. They are not even trying to hide it anymore and it is sad they want to deprive the American people of choosing Donald Trump -- the overwhelming front-runner by far -- as their President. History will not judge them kindly."

" A free people [claim] their rights, as derived from the laws of nature."
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