DemDaily: Disqualified to Run?

September 12, 2023

A legal theory that is gaining momentum among constitutional experts, lawmakers and activists argues that former President Donald Trump -- now indicted on 91 felony counts -- should be disqualified from the 2024 ballot.

The premise is rooted in the 14th Amendment and a Civil War-era clause originally meant to prevent those in the Confederacy from holding state or federal office.

A number of prominent scholars have endorsed the interpretation that Trump's role in orchestrating a conspiracy to overturn the 2020 presidential election constitutes insurrection against the Constitution, thereby making him ineligible for future office.

14th Amendment, Section 3: “No person shall...hold any office, civil or military, under the United States, or under any State, who, having previously taken an 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."

Professors William Baude of the University of Chicago and Michael Stokes Paulsen of the University of St. Thomas -- both active members of the Federalist Society, a conservative legal group, studied the question for more than a year.

“When we started out, neither of us was sure what the answer was,” said Baude, but their conclusion was unequivocal: “Donald Trump cannot be president -- cannot run for president, cannot become president, cannot hold office -- unless two-thirds of Congress decides to grant him amnesty for his conduct on January 6.”

In an August 19 article in The Atlantic, two of the country's leading constitutional scholars, conservative former US Court of Appeals Judge J. Michael Luttig and liberal Harvard University professor Laurence Tribe, agreed. They contend that Trump's efforts to remain in power after losing in 2020 “place him squarely within the ambit of the disqualification clause.”

While the 14th Amendment, usually associated with civil rights and equal protection under the law, is commonly challenged, Section 3 has been largely untested for 150 years.

In the wake of the January 6, 2021 assault on the US Capitol, voters unsuccessfully sued to bar US Representatives Madison Cawthorn (R-NC) and Marjorie Taylor Greene (R-GA) from reelection for their part in the insurrection.

Conversely, in New Mexico, Otero County Commissioner and "Cowboys for Trump" founder Couy Griffin was barred from holding public office for life in September 2022 by a District Court Judge who found his participation in the Capitol attack violated Section 3.

"The framers and ratifiers of the 14th Amendment...foresaw this moment in American history...Section 3 is about as pristine clear as any provision in our Constitution." - conservative constitutional scholar Michael Luttig

Separately, disqualification lawsuits have been filed in several states to keep Trump off the 2024 presidential ballot.

Government watchdog group Citizens for Responsibility and Ethics in Washington (CREW) filed a lawsuit in Colorado last Wednesday, and a similar suit was filed by left-leaning group Free Speech For People in Minnesota today. Two voters in Virginia have also filed suit and similar challenges are said to be underway in Arizona, New Hampshire and Michigan.

Luttig and Tribe contend that it is the obligation of election officials to determine whether Trump is qualified or disqualified to be put on the ballot in their state. They anticipate, however, any decision against Trump to be immediately challenged in federal court before one is expedited to the US Supreme Court -- where a decision will have to be made prior to the 2024 election.

DemList will keep you informed.

DemDaily: Georgia Charges Trump +18 in Criminal Enterprise 8/15/23
DemDaily: The United States v. Trump 8/2/23
DemDaily: The Trials of Trump. Where They Stand 7/31/23
DemDaily: Arrested and Arraigned 6/14/23
DemDaily: 37 Counts 6/12/23
DemDaily: Liable 5/10/23
DemDaily: With Intent to Defraud and Conceal 4/4/23
DemDaily: Indicted 3/31/23

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Kimberly Scott

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Sources: NBC, The Hill, New York Times, The Atlantic, Politico, CNN, The US Constitution

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