Just when it seemed that the Republican Party’s problems with Donald Trump were insoluble, a deus ex machina appeared to save the Grand Old Party from itself. According to two distinguished conservative law professors, the 14th Amendment to the Constitution makes Donald J. Trump ineligible to be elected president. The following is a summary of this important analysis.
In a 126-page detailed legal analysis, William Baude and Michael Stokes Paulsen conclude that the 14th Amendment, added to the Constitution after the Civil War, bars “any person who had previously taken an oath to support the Constitution” from “any office, civil or military, under the United States, if that person “shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”
Obviously, this language was initially intended to bar from office any person who had sworn allegiance to the Constitution but had then been an official of the Confederacy. But as the authors point out, there is no reason to suppose that the language is not still binding on a person who has sworn allegiance to the Constitution and then violated that oath.
Importantly, this constitutional provision can be enforced by any citizen, or by any official of a local, state, or the federal government, so it’s now only a matter of time before a suit is brought to disqualify Mr. Trump. Obviously, this case will have to be resolved by the Supreme Court.
The key issue before the Court will be whether Mr. Trump has “engaged in insurrection or rebellion” against the United States, or gave “aid and comfort” to its “enemies.” On this issue, professors Baude and Paulsen write:
Did President Trump’s “willful, deliberate refusal to accept the outcome of the lawful constitutional election resulting in his defeat for re-election and, instead, his (and others’) attempt to overthrow constitutional election results and install or maintain himself in office, by force, by fraud or by attempted de facto political coup d’etat against the regime of lawful constitutional government, constitute engaging in ‘insurrection or rebellion against the Constitution of the United States’”? “We think the answer is yes.” [emphasis in the original]
This is also the issue in Mr. Trump’s second indictment (the so-called January 6 case). That case is based on his alleged violation of various US statutes—but many lawyers have found the statutory foundation of the indictment to be weak and vague. For example, the statutory prohibition against insurrection was not cited in the indictment, probably because an insurrection today implies violence. Instead, Mr. Trump was charged with (i) conspiracy to defraud the United States, (ii) conspiracy to obstruct an official proceeding, (iii) obstruction of and attempt to obstruct an official proceeding, and (iv) conspiracy against rights. These statutes may be applicable to the facts as presented at trial, but may not be clear enough to persuade jurors to convict Mr. Trump.
However, professors Baude and Paulson point out that the language of the 14th Amendment may be read more broadly than a statute, since its purpose was to disqualify someone from office who has violated his previous oath to support the Constitution.
The case for disqualification is strong. There is abundant evidence that Trump deliberately set out to overturn the result of the 2020 presidential election result, calling it ‘stolen’ and ‘rigged’; that Trump (with the assistance of others) pursued numerous schemes to effectuate this objective; that among these were efforts to alter the vote counts of several states by force, by fraud or by intended intimidation of state election officials, to pressure or persuade state legislatures and /or courts unlawfully to overturn state election results, to assemble and induce others to submit bogus slates of competing state electors, to persuade or pressure Congress to refuse to count electors’ votes submitted by several states, and finally, to pressure the Vice President to overturn state election results in his role of presiding over the counting of electors’ votes. . . The bottom line is that Donald Trump both “engaged in” “insurrection or rebellion” and gave “aid and comfort” to others engaging in such conduct, within the original meaning of those terms as employed in Section Three of the Fourteenth Amendment.
The reference to “original meaning” in this sentence should not be ignored. The authors are talking to an originalist Supreme Court and urging upon them a rule that Donald Trump—who previously had sworn to support the Constitution at his inauguration—had now betrayed his oath of office and is no longer eligible to hold an office under the United States.
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