While some on the right portray accountability for the Jan. 6 Capitol riot as just another partisan dispute, two prominent conservative legal scholars have made the case that the Constitution disqualifies former President Trump from public office.
Last week, law professors William Baude of the University of Chicago and Michael Stokes Paulsen of the University of St. Thomas — both members of the conservative Federalist Society — argued in a law review article that Trump is already constitutionally forbidden from serving in public office because of Section Three of the 14th Amendment.
This section, also known as the Disqualification Clause, bars from office any government officer who takes an oath to defend the Constitution and then engages in or aids an insurrection against the United States. Only a two-thirds majority of both houses of Congress can act to remove such disability.
It should not come as a surprise that Trump meets this standard. All three branches of the government have identified the attack on the Capitol as an insurrection, with multiple federal judges, bipartisan majorities in the House and Senate, as well as the bipartisan Jan. 6 House select committee, citing Trump as its central cause.
As Baude and Paulsen note, “Section Three requires no prior criminal-law conviction, for treason or any other defined crime, as a prerequisite for its disqualification to apply.” Trump’s indictment by special counsel Jack Smith for election-related crimes only further bolsters the case for his constitutional disqualification.
Those federal criminal charges include conspiracy to obstruct an official proceeding, obstruction of and attempt to obstruct an official proceeding, and conspiracy against rights by attempting to “oppress, threaten or intimidate” people in their free exercise and enjoyment of their right to vote.
Although Trump’s role in fomenting the attack on the Capitol has been well documented, Baude and Paulsen argue that the “full legal consequences” of Section Three “have not been appreciated or enforced.” As they explain, the Disqualification Clause is “an enforceable part of the Constitution, not limited to the Civil War, and not effectively repealed by nineteenth century amnesty legislation.”
The provision is also “self-executing … without the need for additional action by Congress.” As the professors note, Section Three “can and should be enforced by every official, state or federal, who judges qualifications.”
Last September, three New Mexico residents represented by my organization, Citizens for Responsibility and Ethics in Washington, won the first case in more than 150 years removing an elected official from office based on participation in an insurrection. The court ruled that then-New Mexico County Commissioner Couy Griffin had violated Section Three of the 14th Amendment by recruiting men for battle to join Trump’s “wild” effort to overturn the election Jan. 6, normalized violence and breached police barriers as part of the weaponized mob that allowed others to overwhelm law enforcement and storm the Capitol. Griffin’s removal marked the first case at the federal or state level concluding that what occurred Jan. 6 was an insurrection.
In Griffin’s case, the court found that disqualifying officials under Section Three of the 14th Amendment does not conflict with the First Amendment right to protest. It also rebuffed attempts by Griffin to conflate Jan. 6 with Black Lives Matter protests.
In their article, Baude and Paulsen explain that “to the extent of any conflict with prior constitutional rules, Section Three repeals, supersedes, or simply satisfies them,” including “the free speech principles of the First Amendment.”
Most importantly, the authors conclude that Section Three covers a “broad range of conduct against the authority of the constitutional order” and “a broad range of former offices, including the presidency.” They state explicitly that Section Three “disqualifies former President Donald Trump, and potentially many others, because of their participation in the attempted overthrow of the 2020 presidential election.”
Every president, regardless of party, takes an oath to preserve and defend the Constitution of the United States. Enforcing the Disqualification Clause against an official who violated that oath is an act of patriotism, not partisanship. As Baude and Paulsen correctly state, “Officials must enforce the Constitution because it is law … Section Three has legal force already.”
The Disqualification Clause has already been used successfully to promote accountability for the insurrection, and, in the coming months, it will be used again to prevent Trump and others from serving in public office.
There’s no requirement for a conviction though.
Ain’t that just the most delicious part of it? What’s really fun is that in GA, the same officials who provided evidence for the indictment, including Raffensberger (who Trump dragged through the mud) are the ones who are going to be determining his eligibility for the GA ballot.
So they’ve already seen the evidence, and the GA GOP is mighty pissed off that Trump cost them a Senate seat. Those good ole boys know how to hold a grudge, and I wouldn’t be surprised if they gave him the finger on this one.
That’s because it’s A. implied, and B. covered by the Fifth, Sixth, and Fourteenth Amendment. Legally, Trump did not commit insurrection until it’s proven in court. Then he is ineligible. He has the right of Due Process, and Presumption of Innocence.
Except that it’s already been tested in court against Madison Crawford - spoiler warning, he lost:
That case went only to appeal. You bet that Trump will take the case to SCOTUS. How do you think they’ll judge the case considering Trump gave them the conservative supermajority they now enjoy?
Except you’re missing the point. The Supreme Court doesn’t decide the qualifications to initially get on the ballot, the state does.
Whether or not he’s qualified for the ballot is determined by the state officials, who don’t need a conviction to disqualify him. This is awfully inconvenient for Trump, as instead of Cawthorn’s case, where the Free Speech for People brought the case against the decision of the state officials, Trump would have to start the case and fight his way through appeals - while fighting 3 felony cases in different courtrooms at the same time.
This means that if state officials disqualify him, he has to file the case, and wait for it to either resolve or go through the appeals process, likely all the way to the Supreme Court just to get on the ballot. When you consider the timing, it’s highly likely that the case wouldn’t resolve or make it to the Supreme Court until after the election. The fact that Trump cost GA a senate seat, and dragged Raffensberger through the mud makes it more than a bit likely that GA election officials will disqualify him, as some of those same people are the ones who provided evidence for the indictment.
The other element comes down to the Supreme Court itself. It’s loyal to Trump, but loyal enough to condone open rebellion at the cost of its own legitimacy? That’s difficult political calculus for any institution of government, much less the Judical Branch, which has no enforcement arm and no legitimacy beside what Congress chooses to give it (the Constitution only states that a Supreme Court be established, and leaves it to Congress to establish it, which they did with the Judiciary Act of 1789 ). Roberts is already on the line, and a decision like this would prompt Congress to act on the ethics conflicts he’s been desperately trying to sweep under the rug.
Right now, it’s most convenient for almost every GOP official to have Trump go away. Yes, they were happy to ride his coattails into power, but now their power is directly threatened by his incompetence. On top of which, he’s destroyed the party’s finances. A lot of establishment Republicans are ready to throw him under the bus, and this may be their opportunity.