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Disqualification Clause is “an enforceable part of the Constitution, not limited to the Civil War, and not effectively repealed by nineteenth century amnesty legislation.”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.
The “other side” here, aside from the fascists who just want to shout ‘nu-uh!’:
No enforcement mechanism is present in the amendment. The op-ed writer declares this means the amendment is self-enforcing, but self-enforcing is just not a thing. Enforcement would require state action – either the individual states refusing to count his votes or send forward his electors or an act of Congress to disqualify him (for example, the Senate declaring they will not accept votes for him). Neither of those scenarios is going to happen in such a way as to sway the election. Alternately, a lawsuit that would end up at the SCOTUS who would certainly defer to Congress on the issue. Assuming you could even find someone willing to raise that lawsuit who had standing (and who even would? Joe Biden isn’t going to do it).
Either way, nothing will happen. This disqualification is moot.
I’m going to point you at my comments here because I already provided a response to this argument when it was posited by @madison_rogue.
That does not address my point.
At the end of the day, someone needs to take action with the blessing of their state to execute the disqualification. You say a “GA election official” could just unilaterally disqualify him – but that isn’t true. A GA election official would need to go through proper channels in their own state to remove someone from the election, or else face immediate removal and replacement. They would need to go through the Sec State office channels. No one can individually snap their fingers and make it happen logistically. If that were possible, some MAGA type would’ve done it in 2020 or 2022 just to sow confusion. Lord knows they try to steal elections through every other immoral method available to them.
In short: 14th amendment disqualification is (properly) extremely rare and has no process. Congress or the many states would need to pass laws to outline a process to create a mechanism of enforcement for your vision of an individual election official throwing the switch to work. Otherwise you are relying on lawsuits or malfeasance so heinous that it defies politics to make it happen (and there is clearly no amount of malfeasance from Trump that the current GOP couldn’t stomach).
The state will need to take action. All three branches of the state government would need to work together to make it happen. Any one of them could pooh it away. And THEN you would also go on to have a federal lawsuit, where again, the SCOTUS would certainly enjoin the move pending a case, and in that case anyone who knows anything about the court could predict the outcome would be a deferral to Congress to clarify the amendment. Assuming they don’t just outright ignore parts of the amendment as they have many times done elsewhere for politically inconvenient or unclear language.
Maybe this would happen somewhere progressive enough. Maybe Massachusetts will disqualify him, but that won’t impact the election results. (PS: if National Popular Vote were a thing, this would be WAY more compelling). But MA refusing to cast electoral votes for Trump is not going to affect any election.
Which is why I described the point as moot. It’s not wrong. What you are saying is almost certainly technically correct, on the whole. It just doesn’t matter. Whether you are right or wrong will not impact any outcomes.