Is Trump Ineligible For Another Term?

Oh, what a tangled web we weave, when at first we attempt to stay in office through deceitful means.

The most recent example of the tangled web involving Donald Trump and his involvement in the January 6 insurrection came last week as two Federalist Society law professors authored an article that takes the position that Donald Trump is ineligible even to run for president as a result of his actions on January 6, 2021. The Pennsylvania Law Review article, which is scheduled to be published next year, is detailed in the New York Times. [For those so inclined, the entire paper is available online.]

The 14th Amendment is the basis for the article’s claim and has long been cited by the left as a bar to an additional term for Donald Trump, but it is unusual to hear similar claims coming from the right, let alone from experienced and educated legal professors. The Federalist Society is a conservative legal group that Donald Trump promised in 2016 would pick his judicial appointees.

The problem (for Trump) is that conservative legal thinkers are not simply Republican lawyers. Conservative legal experts tend to focus on original intent and the specific text of the Constitution (and now history and tradition) rather than short-term partisan thinking. It is not unusual for those points of view to put conservative legal scholars and judges at odds with Republicans when the law goes in a different direction than party rhetoric.

Although it’s too soon to tell where the majority of the conservative legal world will come down on the 14th Amendment question, it won’t be unanimous. The Federalist Society had members on both sides of the January 6 attack. John Eastman, the author of the infamous memo and a “Stop the Steal” speaker, was a prominent member of the Society, but so were many of the judges who blocked Trump’s attempt to overturn the election. There are many lawyers on the right who are very willing to twist the law to their own ends, but there are also many who stand by their oath to defend the Constitution.

The two law professors who authored the article, William Baude of the University of Chicago and Michael Stokes Paulsen of the University of St. Thomas, say that their study was an attempt to determine the original intent of the 14th Amendment rather than a study that started with a desired outcome in mind, as Eastman’s plan seems to have done.

“When we started out, neither of us was sure what the answer was,” Professor Baude told the Times. “People were talking about this provision of the Constitution. We thought: ‘We’re constitutional scholars, and this is an important constitutional question. We ought to figure out what’s really going on here.’ And the more we dug into it, the more we realized that we had something to add.”

In short, the two professors determined after a year of study that, “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.”

This, of course, will come as a shock to Republicans who stand ready to nominate Trump for a third consecutive campaign.

Let’s start at the beginning. What is the 14th Amendment? One of the post-Civil War amendments, the 14th is a verbose addition to the Constitution. Section three is the applicable part of the amendment with emphasis added:

No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, 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.

This obviously leads to a lot of questions. The most obvious is whether it applies beyond the former Confederates. That answer also seems obvious in that there is no language limiting the restrictions to Civil War-era treason.

Other questions are not so easy. My inclination would be that there would need to be some sort of trigger, such as a conviction, for the restrictions to be activated. That seems to not necessarily be so. The article’s authors argue that the constitutional restrictions are “self-executing” in the same way that the age requirement to become president is not subject to debate and anyone under 35 is not permitted to be on a presidential ballot (technically their electors aren’t allowed).

But how do we determine objectively whether a candidate has “engaged in insurrection or rebellion… or given aid or comfort to the enemies….?”

Baude and Paulson cheekily note, “It is a more difficult question of law because we must plumb the meanings of ‘insurrection’ and ‘rebellion’ and so on—and these meanings are not quite as self-evident as ‘thirty-five years of age’ (at least until this article is widely read and accepted).”

And who says law professors aren’t funny?

The paper goes on to give a detailed definition of what an insurrection actually is. For all those on the right who say that January 6 couldn’t be an insurrection because the mob was not armed, note a) that the definition does not stipulate that the insurrectionists be armed even though the January 6 mob was armed with a variety of weapons and b) that the mob’s weapons included guns. The authors based their definition on both contemporary definitions and laws from the time of ratification as well as history and tradition:

Insurrection is best understood as concerted, forcible resistance to the authority of government to execute the laws in at least some significant respect. The term “insurrection” connotes something more than mere ordinary lawbreaking. It suggests an affirmative contest with, and active resistance to, the authority of the government. It is in that sense more than just organized resistance to the laws—more than just a protest, even one involving civil disobedience. Rather, it is organized resistance to the government. Insurrection is also more than mere “protest” in that it implies some element of forcible resistance. It is something more than a mere spontaneous, disorganized “riot.” Insurrection suggests at least some degree of coordinated, concerted action. The term also implies something more than acts of solitary individuals: to qualify as an insurrection the acts in question must involve some form of collective action, even if not an advance plan.

The authors continue that engaging in an insurrection would mean being “actively involved in the planning or execution of intentional acts of insurrection or rebellion; or when one has knowingly provided active, meaningful, voluntary, direct support for, material assistance to, or specific encouragement of such actions.”

This overlaps with actions that give aid and comfort to the enemy, which can be of either foreign or domestic varieties. Supreme Court decisions in the Civil War-era “Prize Cases also held that persons engaged in insurrection or rebellion could be treated as ‘enemies’ (as well as traitors) for legal purposes.” This applied even to some rebels whose only contribution to the Confederate rebellion was through engaging in speech supporting the Confederacy and opposing the federal government.

At length, the authors look at January 6, noting that the events that day included “first the cluster of actions taken in assembling, encouraging, charging, and inciting an armed (in part) mob, producing the January 6, 2021 attack on the Capitol, Congress, and the Vice President. For some, importantly including Trump, these acts would also include subsequent deliberate inaction against the January 6 attack—by persons with duties and capacity to act to suppress, halt, or quell the insurrection in progress—that effectively facilitated, permitted, aided, and encouraged such insurrectionary violence.”

“Overall, it seems to us to be quite clear that the specific series of events leading up to and culminating in the January 6, 2021 attack qualifies as an insurrection within the meaning of Section Three,” the conservative legal scholars note, pointing out that the actions of the mob were a “concerted, forcible resistance to the authority of government to execute the laws in at least some significant respect.”

Baude and Paulsen also dispute that January 6 was no different than other examples of lawlessness and civil unrest such as the BLM riots.

“The invasion of the Capitol on January 6 was not simply a violation of the law (though it was that of course),” they explain. “It was not merely a protest of a particular legal measure, but a forcible prevention and disruption of it. And it was not the disruption of just any legal measure, but of one that was itself central to the allocation of authority under our Constitution. If this is a fair description of what happened on January 6, then that day was something quite different from more common acts of protest, even disruptive protest. January 6 was an insurrection.”

The paper then lays out the case against Donald Trump, noting that it “is no defense that an individual believed (even if mistakenly) that the election had in fact been stolen, or believed that their insurrectionary conduct was somehow lawful. That one may have been deluded or deceived by disinformation does not excuse acts of insurrection or rebellion.”

And Trump was the purveyor of the disinformation. Trump made repeated claims that the election was stolen, tried to alter vote counts, assembled fake slates of electors, pressured the vice president to block the Electoral vote tally, “deliberately assembled the mob of supporters, steeled them to action, knew that they were ready to take immediate action, and directed them to take it.”

Baude and Paulsen also point out that, while Trump’s speech may not reach the threshold for legal incitement under Brandenburg v. Ohio, “Section Three of the Fourteenth Amendment does not enact the legal standard of Brandenburg v. Ohio. It enacts the standard of having ‘engaged in insurrection,’ or given ‘aid or comfort’ to those doing so, and qualifies modifies, or simply satisfies the First Amendment to the extent of any conflict between these constitutional principles.”

Another question is who decides that an insurrection has taken place and enforces the 14th Amendment. The authors’ answer is broad.

”We think the answer is: anybody who possesses legal authority (under relevant state or federal law) to decide whether somebody is eligible for office,” they write. “This might mean different political or judicial actors, depending on the office involved, and depending on the relevant state or federal law. But in principle: Section Three’s disqualification rule may and must be followed— applied, honored, obeyed, enforced, carried out—by anyone whose job it is to figure out whether someone is legally qualified to office, just as with any of the Constitution’s other qualifications.”

In fact, this has already happened. The paper notes that a congressional act decorating members of the Capitol Police called the events of January 6 an insurrection. Additionally, there have been a number of civil suits in which voters sought to disqualify insurrectionists from office. They have been successful in one case so far.

In 2022, a New Mexico judge removed Otero County Commissioner Couy Griffin after Griffin was convicted of misdemeanor trespassing after he entered the Capitol on January 6. The Republican-appointed judge cited Grffin’s violent rhetoric in the decision. The ruling was upheld after Griffin’s appeal was dismissed on procedural grounds.

Thus far, the case against Griffin is the only 14th Amendment disqualification case to succeed, although a similar effort against Marjorie Taylor Greene, supported by Georgia Secretary of State Brad Raffensperger, survived an initial attempt to dismiss the case on constitutional grounds. Ultimately, a judge ruled that the challengers failed to prove their case. It is interesting, however, that the suit was not dismissed out of hand as frivolous or for lack of standing.

I’m not arguing that it is a settled matter that Donald Trump is ineligible under the 14th Amendment, but I am arguing that it is an open question that cannot be easily dismissed. This is especially true given Mr. Trump’s recent indictment on charges relating to the insurrection. If Republicans persist in nominating the embattled and disgraced former president, they run the risk of fielding a candidate that may not appear on the ballot by November 2024.

If Trump is nominated, he will most assuredly add a number of cases to his legal woes in which voters challenge his eligibility to appear on state ballots or state election authorities unilaterally refuse to place him on the ballot. The question may ultimately rise to the Supreme Court, and Republicans should be aware that the outcome is not a foregone conclusion.