Discover more from The Bulwark
Trump Disqualification: How Feasible (or Radical) Is It?
The stakes are high, the questions are complicated, and the alternatives for protecting our democracy from the Trump threat may not be politically safer.
A DEBATE HAS EMERGED as to whether the Fourteenth Amendment to the U.S. Constitution bans Donald Trump from running for president given his role in the attempt to overturn the 2020 election and the January 6, 2021 mob attack on the U.S. Capitol. Section 3 of the amendment specifically states that “No person shall . . . hold any office, civil or military, under the United States . . . who, having previously taken an oath . . . as an officer of the United States . . . 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” (emphasis added). Anyone with a basic command of English can read this language and conclude that Trump’s deliberate, multi-tiered efforts to use the powers of the presidency to wrest the 2020 election from the lawful winner—a ruse that culminated in bloodshed, gallows erected to hang the vice president, multiple deaths, and prison sentences for participants—qualifies.
But as a legal matter, the question is loaded with ambiguities:
What constitutes an “insurrection or rebellion”?
Who gets to decide—voters, Congress, state legislatures, or the Supreme Court?
Assuming someone comes up with a definition, what’s the process for deciding whether Trump’s actions qualify? Does the factual determination go to a jury or is the language “self-executing”—that is, does it automatically disqualify him from even getting on a state ballot? (That is the argument of the conservative law professors William Baude and Michael Stokes Paulsen, whose law-review article on this subject helped spark the latest round of discussion on this idea.) And isn’t “self-executing” by definition an overstatement, since executing the laws is still the responsibility of individuals with specific powers and responsibilities—in this case, state election officials? And how does the question about whether the disqualification provision is “self-executing” even get before a court? Congress has already made it a crime to engage in a rebellion or insurrection (see 18 U.S.C. § 2383), but Trump hasn’t been charged under that statute.
Moreover, Section 3 doesn’t specify that prior presidents who engage in insurrection or rebellion are disqualified from office. It does refer to members of Congress, members of state legislatures, state executives or judicial officers, and to anyone who was “an officer of the United States.” Does that last term include presidents? Or does that refer only to appointed officers within a president’s chain of command, as some (including Chief Justice John Roberts) have argued? If Section 3 doesn’t apply to presidents, can Congress pass legislation under Section 5 of the Fourteenth Amendment (which empowers Congress to implement the rest of it) to make that happen? Or would that require a constitutional amendment?
These are complicated questions. Let us help you disentangle them: Sign up for a free or paid Bulwark subscription today.
And if any of these issues made it to the Supreme Court, would it be willing to hear the case, or would it punt on the rationale that it’s too political for judges to decide? After all, Section 3’s “aid and comfort” language appears borrowed from Article III’s reference to treason. Is the definition of treason something nine unelected justices with life tenure should be making edicts around?
The list of legal questions goes on and on—and that doesn’t even get into the political considerations.
ALTHOUGH THE DEBATE has heated up in recent weeks, this issue isn’t new: I myself wrote about it back in February 2022 for Politico, noting that a key figure in Trump’s second impeachment and the work of the House January 6th Committee, Rep. Jamie Raskin (D-Md.), a constitutional scholar, called the use of Section 3 “a live proposition.”
Last month, J. Michael Luttig and Laurence H. Tribe—giants in the field of constitutional law, one famously conservative, the other famously liberal—coauthored an article for the Atlantic arguing that the post-Civil War “amendment ratified in 1868 that represents our nation’s second founding and a new birth of freedom, contains within it a protection against the dissolution of the republic by a treasonous president.” Citing the Baude and Paulsen article, they argue that the provision is self-executing. As a result, they add, “the most pressing constitutional question facing our country at this moment, then, is whether we will abide by this clear command of the Fourteenth Amendment’s disqualification clause.”
The task falls, in Luttig and Tribe’s view, to “a responsible election officer,” such as “a secretary of state or other state official charged with the responsibility of approving the placement of a candidate’s name on an official ballot.” Once that person takes the extraordinary step of refusing to put Trump’s name on a ballot, a legal challenge would inevitably follow, allowing the federal courts—and ultimately, the U.S. Supreme Court—to take up the question, “where it will in turn test the judiciary’s ability to disentangle constitutional interpretation from political temptation.”
This is what happened exactly one year ago today, when on September 6, 2022 a New Mexico state court judge relied on Section 3 of the Fourteenth Amendment to remove Otero County Commissioner Couy Griffin from his elected position “effective immediately” and banning him from seeking future public office after he was criminally convicted of trespassing at the Capitol on January 6th and sentenced to fourteen days in jail. According to the judge, Griffin and his organization, Cowboys for Trump, “traveled to Washington, D.C. for the events of January 6 because he shared the goal of stopping the constitutionally-mandated certification of the 2020 presidential election.” Video shows him “illegally breaching multiple security barriers and occupying restricted Capitol grounds,” and asking a man, “Where’s your gun at? That’s what I want to know.” Arizona District Judge Francis J. Mathew ruled that the events of January 6th qualified as an insurrection under Section 3, which he defined with four factors: “an (1) assemblage of persons, (2) acting to prevent the execution of one or more federal laws, (3) for a public purpose, (4) through the use of violence, force, or intimidation by numbers.”
It is worth noting, when considering the “self-executing” argument, that in Couy Griffin’s case, the disqualification amendment was not activated automatically. Judge Mathew’s ruling arose from what’s called a quo warranto action—New Mexico law allows legal challenges to a person’s right to hold a public office—by three state residents who were represented by the watchdog group Citizens for Ethics and Responsibility in Washington. CREW notes, in its own writeup of the Griffin case, that it was able to dig up only seven other historical instances of officials disqualified from office under Section 3. Six of them were affiliated with the Confederacy. The seventh was a socialist Wisconsin politician whom Congress—not the courts—decided in 1919 to disqualify from a House seat he had won, on the grounds that he had been indicted under the Espionage Act. There have apparently been no other Section 3 disqualifications in the century since.
LAST WEEK, DAVID FRUM responded to Luttig and Tribe in the Atlantic with arguments that focus as much on politics as the law:
If Section 3 can be reactivated in this way, then reactivated it will be. Republicans will hunt for Democrats to disqualify, and not only for president, but for any race where Democrats present someone who said or did something that can be represented as “aid and comfort” to enemies of the United States.
Frum argues that the “cleanest exit from the Trump predicament depends upon Republican primary voters,” who must be convinced to “spare the country the ordeal of renominating an insurrectionist president.” As compelling as that argument is, however, there is no reason to believe that Republican primary voters can be persuaded to turn away from Trump. Polls suggest that four criminal indictments have only tightened his grip on the party; he now has a lead of about 40 points nationally over his next-best rival for the nomination. The few prominent Republicans who have said they would not support him if he were to win their party’s nomination—Mike Pence, Chris Christie, Asa Hutchinson—are among the least popular figures in the party.
Frum also asks a provocative question: Even if Section 3 were successfully invoked in enough swing states to ensure that Trump doesn’t win the Electoral College in 2024, “How in the world are Republicans likely to react to such an outcome? Will any of them regard such a victory as legitimate? The rage and chaos that would follow are beyond imagining.”
But we are already living in a nightmare that, not too long ago, was beyond imagining. As of now, Trump and Joe Biden are dead even in the polls. Trump has made clear that, if he is returned to the White House, he “will pass critical reforms making every executive branch employee fireable by the president”; flood the government with loyalists (the project to list thousands of recruits is already underway); authorize criminal prosecutions of political rivals; dismantle the powers of the national security and intelligence communities; and bring independent federal agencies within the president’s direct control.
Frum is right that Americans need to step up and vote for their own futures. Whether that will prove sufficient to meeting the dire threats that a second Trump presidency poses for American democracy is another matter.