Could Donald Trump be banned from standing as President? Even in the world of Trumpist paranoid delusions and social media posts it seems improbable.
Yet an increasing number of US legal scholars – including at least two who are regarded as ‘originalists’ – are arguing that Donald Trump should be disqualified from standing as President.
They are all discussing whether Trump, and others who participated in the effort to overturn the results of the 2020 presidential election, are disqualified from holding office under the Fourteenth Amendment to the Constitution.
William Baude, University of Chicago Law School and Michael Stokes Paulsen University of St Thomas Law School have published an article in the University of Pennsylvania Law Review detailing the argument.
Heather Cox Richardson, a Boston College history professor, said in her regular newsletter: “This paper was a big deal because while liberal thinkers have been making this argument for a while now, Baude and Paulsen are associated with the legal doctrine of originalism, an approach to the law that insists the Constitution should be understood as those who wrote its different parts understood them.
That theory gained traction on the right in the 1980s as a way to push back against what its adherents called ‘judicial activism’ by which they meant the Supreme Court’s use of the law, especially Could Donald Trump be banned from standing as President? Even in the world of Trumpist paranoid delusions and social media posts it seems improbable.
Yet an increasing number of US legal scholars – including at least two who are regarded as ‘the Fourteenth Amendment, to expand the rights of minorities and women. One of the key institutions engaged in this pushback was the Federalist Society, and both Baude and Paulson are associated with it.”
Rather than trying to interpret their detailed arguments it is easier to just quote some highlights of the forthcoming 126 page paper.
The third section of the Fourteenth amendment, ratified in 1868, reads: “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.”
The Baude-Paulsen paper’s abstract says: “Section Three of the Fourteenth Amendment forbids holding office by former office holders who then participate in insurrection or rebellion. Because of a range of misperceptions and mistaken assumptions, Section Three’s full legal consequences have not been appreciated or enforced. This article corrects those mistakes by setting forth the full sweep and force of Section Three.
“First, Section Three remains an enforceable part of the Constitution, not limited to the Civil War, and not effectively repealed by nineteenth century amnesty legislation.” Post Reconstruction amnesties were designed to produce a national reconciliation after the Civil War but instead it meant Southerners could just get on with what they had always been doing even if though they had lost the war.
“Second, Section Three is self-executing, operating as an immediate disqualification from office, without the need for additional action by Congress. It can and should be enforced by every official, state or federal, who judges qualifications.
“Third, to the extent of any conflict with prior constitutional rules, Section Three repeals, supersedes, or simply satisfies them. This includes the rules against bills of attainder or ex post facto laws, the Due Process Clause, and even the free speech principles of the First Amendment.
“Fourth, Section Three covers a broad range of conduct against the authority of the constitutional order, including many instances of indirect participation or support as “aid or comfort.” It covers a broad range of former offices, including the Presidency. And in particular, it disqualifies former President Donald Trump, and potentially many others, because of their participation in the attempted overthrow of the 2020 presidential election.”
It seems implausible but the authors point out that Section Three of the amendment “remains fully legally operative. It is constitutionally self-executing— that is, its command is automatically effective, directly enacted by the Constitution itself.”
It also takes into account lots of actions which may be encompassed by the law with the authors saying it covers a wide range of conduct by people attacking the authority of the United States including “insurrectionists, aiders and comforters of …a broad category of former oath-swearing officeholders turned insurrectionists or aiders and comforters of insurrection or rebellion.”
A wide variety of people can also act under the Section as the Amendment empowers and obligates “anybody whose duties provide occasion for judging legal eligibility for office” to take action.
Indeed, such actors have “a duty to faithfully apply Section Three.” What’s more “All possess legitimate constitutional interpretive authority to construe and apply this constitutional prohibition, many of them independently of other actors, including courts.”
The authors say “disqualifying candidates and official from office is not something to be done lightly, but Section Three was not enacted lightly. Section Three remains part of our Constitution, part of our nation’s fundamental law. If we honour the Constitution, we must honour Section Three of the Fourteenth Amendment.”
Their conclusion: “At all events, if a President or former President of the United States; a current or former officer of the federal executive branch; a Member or former Member of Congress; a current or former state legislator or state executive official; or a current or former federal or state court judge, planned, supported, assisted, encouraged, endorsed, or aided in a material way those who engaged in the insurrection of January 6, or otherwise knowingly and wilfully participated in a broader rebellion against the constitutional system, such persons are constitutionally disqualified from office. In such situations, Section Three’s constitutional disqualifications can, should, and must be carried out.”
Now that could put a lot of Republicans in clink. Perhaps even in cells shared with large, tattooed and aggressive men.
…and to top all that the Trump has yet another problem – charges in the Georgia case are about a state offence for which Trump, if elected, could not pardon himself.
Not that any of this will deter some Republicans. A PNAS (17/6) article by Larry M. Bartels and Nicholas Carnes found that Republican members of Congress who in 2021 supported Trump’s ‘stop the steal’ by voting to oppose the certification of electoral votes from Georgia and Pennsylvania suffered little or no electoral penalty and were less likely to lose primary elections, more likely to run unopposed in the general election and less likely to retire from politics.