By Dan Kennedy • The press, politics, technology, culture and other passions

Trump and the 14th Amendment

Trumpers storm the Capitol on Jan. 6, 2021. Photo (cc) 2021 by TapTheForwardAssist.

Heather Cox Richardson agrees with the argument that the 14th Amendment prohibits Donald Trump from seeking election because he directed and took part in an insurrection. There is, however, a problem with this argument, which neither she nor others have addressed: there first needs to be a determination that Trump did, in fact, engage in “insurrection or rebellion.”

He did. Of course he did. But he and his partisans deny it, even though it all took place in plain sight. So how would you actually get the 14th Amendment to kick in? It seems to me that a guilty verdict in either the Jan. 6 federal case or the Georgia case would do it. So would a congressional resolution (good luck with that).

So yes, if Trump is found guilty, he could be banned from running for office. Short of that, this strikes me as a pointless exercise.

Update: David French thinks the Supreme Court could intervene and declare Trump ineligible to run. Of course, that’s not going to happen, either.

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  1. Batchman

    Even if Trump is found guilty, who’s going to enforce keeping his name off all of the state ballots, especially in those states with election officials sympathetic to him?
    And even if his name is successfully removed, you can be sure that MAGA enthusiasts will write his name in. If you don’t think write-ins can win elections, just ask Lisa Murkowski.

    • Lex Alexander

      Every officeholder at any level who has sworn an oath to uphold the Constitution (and almost all of them have) has an affirmative duty to enforce Sec. 3 of the 14th Amendment. And they can’t all be MAGAts.

  2. Robert David Sullivan

    A guilty verdict in federal court is reasonable. I wouldn’t want a congressional resolution to be sufficient to ban someone from running. Too easy to imagine a GOP Congress passing a resolution to bar Joe Biden or Kamala Harris from running, on the basis that “opening the border” is tantamount to fomenting insurrection or something like that.

  3. Lex Alexander

    Good question, Dan. Federalist Society law professors William Baude and Michael Stokes Paulsen argue in a forthcoming Penn law review article that information available in the public record clearly indicates that Trump attempted to interfere with the lawful certification of Biden as president-elect. Accordingly, they write: “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.”

  4. Steven J Coleman

    The argument is that, after having taken an oath to uphold the Constitution, engaging in insurrection or rebellion or providing comfort to those doing so is a disability to holding office. No different from being too young to hold the office. The disqualification doesn’t have to be adjudicated or legislated. It takes only the the Sec. of State in each state to determine by review of a person’s requisite qualifications and absence of “disabilities” to declare the person ineligible to be on the ballot because of the obvious engagement in rebellion. This of course would be challenged legally and make its way to the Supreme Court where the matter would ultimately be settled. Trump’s supporters don’t get to decide whether he did or didn’t engage in insurrection, rebellion, or providing comfort to those who did.

  5. NahantJim Walsh

    I think it would be dangerous to go down this road and the more noise made about it the more helpful it would be to Trump.

    Watching this latest indictment unfold is bad–or good–enough without throwing kerosine on the fire that would make it more difficult to contain.

    The laws of the land should be enforced using the orderly, clearly defensible legal means at our disposal. We are doing that.

    The Trump/Bannon goal is to create chaos to an extent that will enable them to claim the need to overthrow our legal and electoral systems and impose a ruler…to stop the chaos they’ve created. They are doing that.

    It is disconcerting that the Southern Republicans and others still defend Trump. But creating and supporting a new interpretation of an amendment from 150 years ago on shaky premises would go over like “Defund the Police.” It would hurt us more than help us.

    Hannah Arendt observed, “One of the greatest advantages of the totalitarian elites of the twenties and thirties was to turn any statement of fact into a question of motive.”

    Trump’s desire is to dismantle our political system to benefit himself, personally, and to join the other authoritarians in power. Making a lot of noise around the 14th Amendment risks making the whackiest of Trump’s supporters even crazier…and some of them are armed.

  6. Mike LaBonte

    Certainly the final arbiter would Congress, on January 6. State officials would be foolish to allow him on the ballot knowing the electoral votes would be very unlikely to be accepted.

    But I’m having trouble seeing how the 14th amendment would preclude Trump from serving as President again:

    “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.”

    Offenders can’t run for Congress or be an elector. Nothing above rules out being President. What am I missing?

    • dkennedy56

      Weird. I’m reminded that the Sedition Act forbid criticism of virtually any official except the vice president, because Adams wanted his supporters to be free to trash Jefferson.

    • Mike LaBonte

      Not sure why I didn’t notice “or hold any office” at first, but that’s what I was missing. It’s only weird that they specifically mentioned two offices that are not President.

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