Disqualifying Trump Under the 14th Amendment: Exploring the Case For and Against

Will Trump’s name even appear on 2024 ballots?

There’s a strong case for disqualifying Donald Trump from the presidency. One that finds even?multiple conservative?legal scholars?in agreement. Others, however, argue that disqualification would be anti-democratic, among other reasons.

This article will analyze both sides of the argument as applied to?Section 3 of the 14th Amendment. I will attempt to use plain language to make sense of the legalese.

By the end you’ll understand why Trump’s name may not even appear on the ballot of many states in 2024.

The history of section 3 of the 14th Amendment

When most people think of the 14th Amendment, they probably first think of equal protection and due process. Section 3 of the 14th Amendment is often an afterthought because it has been?used infrequently, primarily in the years immediately following the Civil War.

Its history dates back to postbellum America when lawmakers were concerned about insurrections and rebellions after the Civil War. It was designed to prevent Confederates from returning to the federal government after rebelling against the U.S. Constitution.

In particular, please note the bolded language in section 3 of the 14th Amendment:

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 text broadly applies to (1) any officer who has taken an oath to support the U.S. Constitution (which most lawyers agree includes the President), and (2a)?engaged in insurrection or rebellion,?OR?(2b) gave aid or comfort to the enemies that did.

If these elements are met, the person is immediately disqualified from office. Only a two-thirds majority vote from the Senate AND House could remove such disqualification.

Lawyers call this type of law “self-executing.” This means there’s no action required by any branch of government, criminal court, or any other legal proceeding in order to enforce it.

Its language is definitive. Similar to the constitutional language requiring that Presidents?must?be?35 years or older.

Therefore, neither an act of Congress nor a criminal conviction is necessary for applying this section to Donald Trump.

The case FOR disqualifying Donald Trump from the presidency

When Donald Trump assumed the office of the presidency, he took an oath to uphold the U.S. Constitution.

There’s an argument that he?engaged?in an insurrection or rebellion by telling his supporters to “be there, will be wild” on January 6, in addition to the speech he made that day (more on that below).

Not to mention the?wealth of evidence from indictments?to not only install fake state electors, but to pressure Mike Pence into obstructing or delaying the election certification. In addition, there have already been?over 1,000 people?facing?serious?charges from the January 6th riots.

The best argument against these points is that the 14th Amendment does not define “insurrection” or “rebellion.” But looking at an old?grand jury instruction?approved by a federal court reveals what they viewed as “insurrection” around the time of the 14th Amendment’s ratification:

Insurrection?is a rising against civil or political authority, — the open and active opposition of a number of persons to the execution of law in a city or state. … It is not necessary that there should be bloodshed; it is not necessary that its dimensions should be so portentous as to insure probable success, to constitute an insurrection.?It is necessary, however, that the rising should be in opposition to the execution of the laws of the United States, and should be so formidable as for the time being to defy the authority of the United States.

The events on January 6th arguably fit the requirements of this grand jury instruction. The riots on that day were designed to obstruct or at least delay the election certification.

Trump encouraged everyone to pressure Mike Pence, he allegedly oversaw a team that coordinated for fake electors to submit fake votes to Mike Pence for certification, and then after the rioting started, Trump waited for hours before finally tweeting that everyone should go home.

In addition,?one of Trump’s own lawyers conceded during his impeachment hearings in 2021 that January 6th was in fact an “insurrection”, and multiple appellate court judges have used the term to describe that day’s events.

And if you?still?don’t?think Trump engaged in insurrection or rebellion, recall the words he used during his?January 6th Rally Speech:

“[W]e fight. We fight like hell and if you don’t fight like hell, you’re not going to have a country anymore.”

“[W]e’re going to try to and give [weak Republicans] the kind of pride and boldness that they need to take back our country.”

And then he instructed his supporters to: “walk down Pennsylvania Avenue.”

Trump and his Secret Service team were?warned in advance?by aides that any speech Trump gave that day could incite violence. Therefore, it’s reasonable to conclude that Trump knew his rhetoric could lead to violence on January 6th, which falls within a standard definition of “engage.”

Even if it’s found that Trump did not?engage?in insurrection or rebellion, there’s a broader part of Section 3 of the 14th Amendment:?giving aid or comfort to the enemy.

One person after the Civil War was?determined?to have provided this to the Confederacy and in his hearing it was found that “words of encouragement” or “expressions of an opinion, from one occupying an influential position” could be viewed as meeting this standard.

“We love you. You’re very special.” — Donald Trump, after the end of a violent January 6th

And given that this amendment was ratified immediately after the Civil War, it was almost certainly drafted with both?foreign and domestic “enemies”?in mind.

So far the case looks objectively strong against Trump, but let’s assess the best arguments in his defense, in addition to how this would all be practically enforced.

The case AGAINST disqualifying Donald Trump from the presidency

One argument that was recently used against Section 3 disqualification came from Madison Cawthorn, the former North Carolina Congressman. He tried to invoke the 1872 Amnesty Act as a defense when attempting to run for reelection. While he initially won at the district court level, the?appellate court overturned the decision.

This Act that he cited basically immunized certain Confederate officers?before?the 14th Amendment’s ratification. That point on “before” is the key. Trump’s actions were well after the 1800s, so this Act won’t help him.

Other conservative legal scholars have argued that Congress has spoken on the issue and provided disqualification alternatives that must be followed instead. These arguments fail because while they may provide alternatives, the U.S. Constitution is supreme.?Trump would still have to overcome any Section 3 challenge under the 14th Amendment.

I previously addressed how each part of Section 3 arguably applies not only to Trump but to the actions he took leading up to January 6th and on the day itself. There is a broader counterargument, however, that could be made that goes to the core of American democracy.

Someone might argue:?isn’t it anti-democratic to let state election officials charged with putting candidates names on the ballot to decide to exclude someone who’s otherwise duly qualified?

It certainly could appear that way. Especially if all blue (or Democrat) states excluded Trump’s name, while the red (Republican) states didn’t.

Section 3 of the 14th Amendment, however, is clear. It’s designed to penalize someone who acts?against?the U.S. Constitution. It’s targeting anti-democratic behavior. It’s a cure for the disease, not the other way around.

Although there’s a valid concern here that it could lead America down a slippery slope of Section 3 overapplication. Why not use this section every time one state doesn’t want to see someone on the ballot?

This is where we have to rely on the judicial and democratic processes.?We rely on the judiciary to interpret the law properly by applying facts to law. If someone is removed from a ballot improperly and they sue, a court must give them an opportunity to defend themselves.

In fact, the U.S. Supreme Court could give Trump this opportunity, and given its conservative leaning, they could very well find in his favor.

Similarly, we have to rely on state democratic processes. If a state election official, for example, improperly removes names from the opposing political party for no justifiable reason, they should be disciplined and/or the electorate should vote them out of office.

We cannot worry about hypothetical consequences when the need to enforce the rule of law is such a clear and present danger.

How Section 3 of the 14th Amendment will be enforced

I somewhat touched on this already. Given that most lawyers agree that Section 3 is self-executing, state election officials in each state (usually the Secretary of State in each of the 50 states)?will need to make the decision on whether to remove Trump from the ballot?should he qualify as the Republican nominee or as an Independent.

Some judges may even entertain private rights of action should ordinary citizens sue to enforce Section 3 (but that’s not legal advice!).

More likely than not though it will come down to each state. State election officials will each have to make a tough call. After applying Trump’s actions to Section 3, however, and maybe even after reading more scholarship and articles like this one, they’ll be convinced that Donald Trump should be barred from holding public office in the United States ever again.

The big question will be how the the U.S. Supreme Court will decide this issue when it inevitably falls on their desk. Will the conservative majority start with their politically preferred outcome and then construct a legal web of justification, or will objective and textual constitutional interpretations win the day?

What is certain is that Trump will see his day in court for the various indictments he’s facing. The question though of whether he will see his name on the ballot in 2024 is one for each state to decide in line with their constitutional duties.

Let’s hope for American democracy’s sake that each state — and the U.S. Supreme Court — takes that analysis very seriously.