Unless sensible minds prevail, the Republican Party and its most active voters may nominate a candidate who is – as a matter of law – simply ineligible to become president. As someone who has served as an informal advisor to Republican and Democratic Presidents, it pains me to make this observation because Americans deserve to have a choice between eligible candidates and a competition over the ideas of which of those legally qualified candidates should represent them. But the hard truth is that former President Donald Trump is ineligible to serve again as president and should be rejected from each state’s voting ballots. This is a realization sweeping across the nation’s constitutional law experts, spanning both the political spectrum and judicial philosophies, and now growing among some of the leaders of the Republican party.
Indeed, based on the U.S. Constitution’s dictates – and the post-Civil War amendments in particular – secretaries of state and other election officials who honor their oath should feel compelled not to place Trump on the 2024 ballot. Republican presidential candidates have a sound basis to raise the issue well before then, whether in litigation or otherwise. And voters themselves may be obliged to consider whether they can vote for someone who the Constitution deems ineligible because of his effort to prevent the peaceful transfer of power and give aid and comfort to an insurrection.
No one can be faulted for failing the civics test for what the U.S. Constitution requires to be eligible to serve as the President of the United States. Media pundits and even schoolteachers regularly spell out only three qualifications for the Office. Sadly this is because they are misled by even purportedly authoritative sources such as the U.S. government’s information website that states the criteria are merely: to be a natural born citizen of the United States, at least 35 years of age, and have had 14 years of residency in the country. A new 126-page study coming out in the University of Pennsylvania Law Journal shows with true authority that Trump has violated a fourth qualification, by providing aid and comfort to an insurrection and enemies of the U.S. Constitution.
The authors are two highly conservative, leading legal scholars, William Baude and Michael Stokes Paulsen. Both are members of the conservative Federalist Society and both are proponents of “originalist” judicial perspectives on how to interpret the constitutional text, an approach that has gained traction among the more conservative members of the U.S. Supreme Court. Using this method of interpretation and historical research, Baude and Paulsen conclude that Trump has unequivocally run afoul of Section 3 of the 14th Amendment – the insurrection clause — by breaching his sworn oath of office to obey the Constitution.
Their wisdom and the prowess of their detailed research was more recently joined in an eloquent legal treatise coauthored by the revered conservative retired Appeals Court Judge J. Michael Luttig and the renowned more liberal leaning Harvard constitutional law expert Laurence H. Tribe. With remarkable agreement, these four constitutional law experts point out that Trump’s criminal prosecution is not even relevant to this disqualification. Citing the Supreme Court opinion in McCulloch v Maryland (1819) where Chief Justice John Marshall’s endorsement of the Constitution as a document intended to be read, understood, and applied by NON-lawyers, Luttig and Tribe, along with my colleague Anjani Jain of Yale encouraged me to author this essay.
The scholars cite the body of documented facts about Trump’s actions in the leadup and fateful day of January 6th.To any reasonable look into the evidentiary record, that includes the former president’s encouragement of the assault on Congress knowing the protestors were armed, his pronouncements that perhaps Vice President Mike Pence deserved to be threatened with hanging by insurrectionists, and the 187 minute failure to send in forces to quell the attack or tell his supporters to disperse from the building. Enjoying watching the murderous violence on TV was hardly just a poor loser “sulking” during a demonstration that spun out of control. The scheme to insert fake substitute electors in key states that led to this insurrectionist violence was not subtle or unorganized. Indeed, the conspiracy to set up fake electors, many of them duped, was a form of external interference by the fat cat DC types in the local affairs of state politics that is otherwise considered anathema by many conservatives.
Similarly, Trump’s tape recorded direct electoral interference demanding a Republican Secretary of State come up with new vote tallies of already certified ballot counting should be understood in its broader context: the nefarious solicitation followed extensive recounting, audits, and over sixty failed lawsuits not to mention senior White House lawyers and cabinet officials such as his own Attorney General Bill Barr and Homeland Security officials telling him he had lost and that there was no way for him to remain in office beyond January 20th, at least not lawfully. Nonetheless Trump even announced on his Truth Social platform that the unproven voting fraud was so massive that it called for a “termination of the Constitution.”
It was that combined assault on the U.S. Constitution that these scholars have carefully explained, under the specific terms of Section 3 of the 14th Amendment, now bars Trump from public office.
Understandably, some worry that the denial of choice is undemocratic, but the 14 Amendment is very clear that this eligibility requirement is, in fact, in support of democracy. As Judge Luttig has recently written, “The Fourteenth Amendment itself, in Section 3, answers the question whether disqualification is “anti-democratic,” declaring that it is not. Rather, it is the conduct that gives rise to disqualification that is anti-democratic, per the command of the Constitution.”
Accordingly, some people may want to vote for a 28-year-old candidate as in 1968 when activists at the Democratic National Convention tried to nominate underage Julian Bond for vice president. Some admirers of New Zealand’s popular former prime minister Jacinda Ardern’s track record on social harmony, gun safety, economic growth, and public health suggest she would have been a great US president, but, alas, she is not a natural born US citizen. Just as Donald Trump challenged President Obama’s citizenship in 2008, Trump told me in 2016, as a candidate he was prepared to challenge Ted Cruz’s eligibility since he was the Canadian born son of a non-US citizen. Trump understood the power of that idea. The eligibility requirements are the law.
Do not expect all lawyers to agree, and many will be quick to write. As President Lyndon B. Johnson once quipped, “In my part of the country there is an old saying that the town which can’t support one lawyer can always support two lawyers.” One conservative legal critic, Jonathan Turley, called the blatant insurrection and its triggering of the 14th Amendment disbarment rules an “urban legend.” He was guided in his definition of “insurrection,” not by the historical texts that Baude and Paulsen explore, but by recent public opinion polls. Another conservative legal critic, Stanford’s Michael McConnell, suggested it is dangerous to exercise the law as laid out in the Constitution as perhaps all political protests could suffer. On the constitutional text, he refreshingly admitted, “I have not done the historical work to speak with confidence.”
One liberal legal scholar, Noah Feldman of Harvard, was skeptical about this reliance upon “originalist” perspectives and was cynical that a Court packed with several Trump justices would adhere to the originalist approach in these matters to ever side against Trump. Of course, the Supreme Court ruled against Trump in all the major challenges he mounted to the 2024 election results . Furthermore, Feldman bewilderingly championed the prospect of Trump being held ineligible under the 14th Amendment, Section 3, but then chose a different course in his new Bloomberg piece rejecting the strength of the constitutional determination of ineligibility, without ever referencing, let alone explaining the discrepancy with, his earlier position. This same now skeptical Feldman himself had found Trump unfit to serve during Trump’s impeachment hearing where he testified that Trump “corrupted the structure of the republic.”
If a violent effort to overthrow the U.S. government and thwart the transfer of power by attacking Congress in session, trying to substitute fraudulent electors, and trying to manipulate ballot counts is too subtle for some to recognize as insurrection, Luttig and Tribe say to take the matter to the courts to decide (an elegant and straightforward solution Feldman never mentions). In fact, if some scholars are confused by even what they themselves think from moment to moment or upon deeper reflection once they have done the required historical research, a court review should follow.
The standards of evidence for such a non-criminal action would be a low bar, likely be something akin to a civil charge such as “preponderance of evidence.” If a blue state secretary of state rejects Trump’s eligibility for the ballot, it will surely be challenged in court. If a red state secretary of state fails to decline Trump’s eligibility, that too will be challenged in court. The appeals will go quickly to any state’s supreme court and then race to the U.S. Supreme Court for likely fast review whether in their Shadow Docket or not.
The task for the U.S. Supreme Court should not be hard. While the 14 Amendment has very broad sweeping terms to define the evidence of insurrection or rebellion, Republican leaders had no difficulty defining Trump’s actions. For example, Kevin McCarthy on the House floor said: “The president bears responsibility for Wednesday’s attack on Congress by mob rioters. … He should have immediately denounced the mob when he saw what was unfolding.” Mitch McConnell on the Senate floor: “There’s no question — none — that President Trump is practically and morally responsible for provoking the events of the day.” His own Vice President Mike Pence: “I believe that anyone who puts themselves over the Constitution should never be president of the United States, and anyone who asks someone else to put them over the Constitution should never be president of the United States again.”
What’s more, a 57-43 majority of the U.S. Senate voted to convict Trump under an Article of Impeachment for “incitement of insurrection,” which could have barred him from future office. And indicated they would have voted to convict but concluded the Senate lacked jurisdiction since Trump was then no longer president.
Finally, these Republican voices bring us back to the primary debate stages. While any voter would have standing to bring these charges in their respective states, surely the parties with strongest standing, that is those directly injured by Trump’s candidacy, are his Republican primary rivals. Consider recent remarks by three of the candidates who are all lawyers by training. In addition to the powerful statement by Pence, mentioned above, Chris Christie has remarked: “He said that it was ok to suspend the Constitution if you think the election was stolen from you. … Anybody, in my opinion, who says that it’s okay to suspend the Constitution is disqualified from being President of the United States.” Asa Hutchinson announced “I do not believe that Donald Trump should be the next president of the United States. I think he’s had his opportunity there. I think Jan. 6 really disqualifies him for the future.”
This past Sunday, Hutchinson spelled out what others are thinking. On CNN’s State of the Union, the former Arkansas Governor said:
“I’m not even sure he’s qualified to be the next president of the United States. And so you can’t be asking us to support somebody that’s not perhaps even qualified under our Constitution. And I’m referring to the 14th Amendment, that a number of legal scholars said that he is disqualified because of his actions on January 6. … There would have to be a separate lawsuit that would be filed in which there would be a finding that the former president engaged in insurrection, and that would disqualify him. That’s one avenue. The other way would be that, if a specific state made that determination their own, then that would put the burden on someone else challenging that.
Either way, it winds up in court for a specific finding. But I expect those lawsuits to be filed. I expect some states to take that action. But I think it’s a serious jeopardy for Donald Trump under our Constitution and not being qualified.”
This Wednesday, the Republican primary candidates should stop simply complaining about Trump’s candidacy and take legal action on behalf of our nation. Such demonstrated leadership would be appreciated by many voters as a sign of character, conviction, and courage. We heard from the legal scholars, now let’s hear from the political leaders.