Jim Hartman
Some legal scholars contend Donald Trump is ineligible for the presidency under Section 3 of the 14th Amendment.
They cite the following language: “no person” who has taken an oath to support the U.S. Constitution shall serve in any public office who has “engaged in insurrection or rebellion against” the United States “or given aid or comfort to the enemies thereof.”
Section 3 was drafted during Reconstruction to prevent Confederates from seizing back power through the ballot box.
Since being ratified after the Civil War in 1868, Section 3 has rarely been invoked. But legal scholars agree the disqualification clause has continuing legal force.
The argument – made fully in a 126-page August law review article authored by two conservative legal academics – concludes that Section 3 can and should be enforced against Trump.
J. Michael Luttig, a former federal appeals court judge appointed by George H.W. Bush, and Laurence Tribe, a liberal Harvard constitutional law professor, agree.
In reality , this last-ditch legal gambit against Trump should fail for legal and political reasons.
It begins with an assertion that Trump’s actions after the 2020 election amounted to an “insurrection” and they were self-evident. While Trump’s behavior was reprehensible that’s far from participating in “insurrection” or “rebellion” under the legal meaning of those terms.
The Jan. 6 rally turned into a riot at the Capitol. This was an obstruction of a federal proceeding – i.e. counting the electoral votes. But many riots in U.S. history have turned violent. In the late-1960s and early -1970s there were frequent bombings of government buildings.
Trump has not been charged with “insurrection” under 18 U.S.C. Section 2383 by special prosecutor Jack Smith. Instead, he’s been charged with a conspiracy to overturn the election, but that’s not a “rebellion.”
An over-broad definition of “insurrection” and “rebellion” under Section 3 could easily be abused by political partisans. Already there have been attempts to disqualify four Republican House members from the ballot who supported Trump’s claims the election was stolen.
If Section 3 is invoked against Trump, he won’t be the last target.
A New Mexico state court ruled in 2022 that Couy Griffin, a county commissioner who joined in storming the Capitol on Jan. 6, was “subject to disqualification under Section 3” because he took “an oath to support the Constitution as a county official.”
Griffin’s case is the first known application of Section 3 since the Civil War.
Proponents argue the disqualification clause is “self-executing,” meaning it automatically applies to someone who meets the criteria. They contend it doesn’t require a criminal conviction in court and can be invoked by state officials to keep Trump off the ballot.
This would violate the due-process protections explicit elsewhere in the Constitution. Removing Trump by fiat would also deny voters the constitutional right to vote for the candidate of their choice.
Knocking Trump off the ballot would validate, in the view of his supporters, his claims the election system is rigged and corrupt.
The secretaries of state in battleground states of Michigan and Arizona, both Democrats, have said they are researching the 14th Amendment issue after legal challenges were filed. The New Hampshire secretary of state, a Republican, said he was “carefully reviewing the legal issues involved.”
The question is being considered in at least nine states, including Colorado, where a lawsuit to disqualify Trump was filed Sept 6.
Its ultimate arbiter could be the conservative Supreme Court which Trump helped shape.
Brad Raffensperger, Georgia’s Republican secretary of state and a target of Trump’s unrelenting enmity, rejects the move as “merely the newest way of attempting to short-circuit the ballot box.”
The way for opponents to defeat Trump is through the electoral process – first in the primaries and perhaps the general election.
Let the voters decide.
E-mail Jim Hartman at lawdocman1@aol.com.