Such is the state of exception to which Donald Trump has brought the United States, with his four indictments on a total of 91 counts, that even legal debates make for newspaper headlines. The debate, more intense every day, is this time about whether the 14th Amendment to the Constitution holds the answer for those who believe the former president’s role in the siege on the Capitol on January 6, 2021 — when he called a rally and encouraged his supporters to march on Congress and prevent the peaceful transfer of power to Joe Biden — should be enough to stop him from running in next year’s elections, in which he is the favorite to win the Republican nomination.
The text itself does not forbid a person indicted for a federal crime from being president; nor from running for the White House. Not even if that person is in jail. But the amendment does provide a proviso in Section Three, known as the “disqualification clause.” It reads: “No person shall be [...] president [...] who, having previously taken an oath [...] 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.” The amendment also states that Congress can lift the ban if it is supported by two-thirds of each House.
Approved in 1868, the most far-reaching effects of the 14th Amendment were to grant citizenship to every person “born or naturalized in the United States,” including those who had been enslaved, and to guarantee all citizens are treated equally before the law. Section Three was designed to prevent the Confederate rebels, defeated in the Civil War (1861-1865), from reoffending. In the years after peace, known as the Reconstruction era, it was applied in a handful of cases, and then, for more than a century, it was forgotten.
When Trump was first indicted in April, the experts consulted by this newspaper mentioned Section Three as a distant possibility, arguing it would be almost impossible to apply. But everything seems to have changed since Trump’s fourth indictment, in which the former president and 18 of his allies are charged with “racketeering” to pressure Georgia election officials and alter the result of the 2020 elections.
And even more so since the announcement of the publication of a 126-page scientific article in the next issue of the University of Pennsylvania Law Review. Titled The Sweep and Force of Section Three, the legal paper is authored by William Baude and Michael Stokes Paulsen, two renowned conservative academics, who argue that the disqualification clause is far from being a 19th-century anachronism. They believe there is no doubt that Trump’s actions — especially how he incited supporters and pressured his vice-president Mike Pence to disrupt the transfer of power — fit under the clause.
Since then, a large number of lawyers and leading columnists have agreed with the scholars. “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,” legal experts Laurence Trib and Michael Luttig wrote in The Atlantic.
Last week, a Washington organization called Citizens for Responsibility and Ethics in Washington (CREW) decided to go one step further and filed a lawsuit to remove him from the ballot in Coloradot. “There is overwhelming evidence that the clause can be triggered in this case,” CREW vice president Donald Sherman, one of the lawyers who signed the lawsuit, explained in a telephone interview on Friday. “The concept is easy to understand, even if the litigation will not be. We hope that the judge agrees with us, and we are confident of convincing the appellate courts, including the Supreme Court.” That won’t be easy, either: the Supreme Court has a conservative supermajority of six justices, three of whom were appointed by Trump.
The plaintiffs want the matter resolved before the Republican presidential primary, so that voters “are not misled into voting for an ineligible person,” said Sherman. When asked why the lawsuit was filed in the Democratic-leaning state of Colorado, Sherman said the decision was made due to the fact that they had “a group of courageous plaintiffs, four Republicans and two independents, including Norma Anderson, who was the leader of the conservative majority in the state senate.” He also pointed out that Trump does not need to be found guilty in order for the nuclear button of the 14th Amendment to be triggered.
Similar disqualification cases have also been filed In New Hampshire (where the earliest Republican primaries will take place), New Mexico, Ohio, Florida and Wisconsin. CREW set a precedent last year when they were able to use the clause to disqualify Cuoy Griffin, the founder of the Cowboys for Trump group, from holding public office in New Mexico. “The court understood that, since [Griffin] recruited people for the assault on the Capitol, he could not run, even if he did not commit any violent act, nor enter the building that day,” said Sherman, adding: “It was the first time since the Reconstruction in which Section Three went ahead in a court.”
The lawyer believes strongly in his crusade, but knowing the American judicial system, it is difficult not to think that his mission is a tough one. Trump is facing four indictments: the Georgia case over election subversion, the Stormy Daniels case over hush money paid during the 2016 election, the Mar-a-Lago case over classified papers and the federal indictment over the January 6 assault on the Capitol. In each of these investigations, Trump’s legal team is working hard to delay the proceedings from moving forward — a strategy that could hinder the disqualification lawsuits.
The legal theory that Section Three can be used to disqualify Trump has been gaining ground among Democrats and Republicans who oppose the former president. But some argue that it is flawed. One of the most vocal critics is Fox News contributor Jonathan Turley, who is a professor at George Washington University. He has called it “the most dangerous constitutional theory that has emerged in decades.”
“This 14th Amendment theory is something that good liberals will read to their children at night. It goes something like this: Donald Trump can never be president again, because the 14th Amendment bars those who previously took federal oaths from assuming office if they engaged in insurrection or rebellion”, said Turley. “With that, and a kiss on the forehead, a progressive’s child can sleep peacefully through the night.”
Others, like Russell L. Riley, co-chair of the Presidential Oral History Program at the Miller Center at the University of Virginia in Charlottesville, are more cautious. Riley explained last Friday in an email that he believes there are “sound reasons to believe that it [the disqualification clause] would be applicable to Trump and thus render him ineligible for office. Especially given the sentences issued to the January 6 protesters, including the Proud Boys, it is hard not to find that the president was to blame for a real insurrection, consistent with the terms of the 14th amendment.” Last week, for example, the group’s leader Enrique Tarrio was sentenced to 22 years in prison, the longest sentence among the hundreds already convicted of participating in the attack on American democracy. “All it would take would be for two or three key states to accept this logic to effectively end Trump’s candidacy, because it would put an electoral majority out of reach for him.”
But Riley is still “undecided about the wisdom of taking this route”. “Mainly because so many Republicans seem utterly convinced that deploying the 14th amendment in this instance would be a sign of illegitimate weaponizing of the constitution. So if some states decided, on the basis of this amendment, not to include Trump on the ballot this time, it seems almost certain that their opposite numbers would seek to use this mechanism in a future race to undermine the Democratic candidate, without any real constitutional justification. That’s a recipe for escalation of our political conflicts that in the long run would be detrimental to our democracy. So it may be that the wiser option is not to trigger that mechanism.”
If the disqualification clause does not move ahead, it would clear the path for Trump to return to the White House, which could also pose a threat to American democracy. All in all, Riley prefers to trust voters than to disqualify the presidential candidate. “In the end, that way is probably the healthiest option—but perhaps also the riskiest”.
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