An Excellent Application of the 14th Amendment

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“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.”

Americans should pay close attention to this, Section 3 of our Constitution’s Amendment 14. There is a movement afoot to bar Donald Trump from appearing on the November 5, 2024, ballot for President. This movement includes some conservative legal experts, such as Professor William Baude of the University of Chicago law School and Professor Michael Stokes Paulsen of the University of St. Thomas School of Law (Hayes Brown, in an MSNBC eblast 8/15/23), and they are joined by a bipartisan, renowned legal pair: Laurence Tribe, the Carl M. Loeb University Professor of Constitutional Law Emeritus at Harvard University, and J. Michael Luttig, a prominent conservative who served 15 years on the US Court of Appeals for the Fourth Circuit.

The 14th Amendment was enacted after the Civil War in part to ban Confederates from holding office again. Trump’s actions – and deliberate inactions – on January 6, 2021, these experts argue, similarly disqualify him as a candidate not only for President but for any other public office. In practice, this would mean that States would need to act to prevent Trump’s name from appearing on their ballots. Luttig and Tribe understand that this initiative might ultimately have to go to the Supreme Court and that the process raises the risk of “momentary social unrest and even violence.” But they maintain that there is a risk of not raising this issue as well.

The argument is supported by former Labor Secretary and current University of California Berkeley Professor Robert Reich. In a June 2023 blog post on his site, Reich stated, “Secretaries of State and other chief election officers across the country have the power to determine whether candidates meet the qualifications for office. They have a constitutional duty to keep Trump off the ballot – based on the clear text of the U.S. Constitution.”

Another related strategy is at the federal level. In December 2022, 40 Democratic members of the US House of Representatives filed legislation to ban Trump from holding future federal office. Rep. David Cicilline (D-RI) led this effort. The bill cited testimony and evidence demonstrating how Trump engaged in the insurrection and described “how Trump helped encourage the violence on Jan. 6, tried to intimidate state and federal officials when they did not support his false claims of the election being stolen and refused to denounce the mob that stormed the Capitol for hours during the riot.”

Bottom line: Since Cicilline’s bill died in the House at the end of the 117th Congress, it is up to the States. They should get started now to explore this very important issue. Trump has been indicted four times on a total of 91 criminal counts, and court dates are starting to appear on the calendar. His modus operandi over his whole adulthood is to delay proceedings against him as long as possible.

[Note: things are moving quickly on this around the country. Good news from the Colorado Supreme Court! Now onward to SCOTUS.]

While millions of us would love to see Trump tried, convicted and even put in prison, the legal process thus faces a myriad of challenges. The alternative of using the 14th Amendment to prohibit Trump from even appearing on ballots to begin with is one that could at least prevent him from regaining one of the most powerful positions on Earth – for which he is assuredly unqualified. Then the timing of his various trials – which must also proceed – is much less urgent. In Reich’s words, “Democracy cannot survive if insurrectionists hold power in our government.”