Is Trump Ineligible to Run for President?

Just when it seemed the 2024 presidential election couldn’t get more combustible, with Donald Trump facing four criminal indictments containing 91 felony counts, two law professors fan the flames. In a forthcoming law review article, William Baude and Michael Stokes Paulsen argue that Trump is disqualified from being President by a heretofore obscure constitutional provision.

They cite section 3 of the Fourteenth Amendment, which disqualifies from federal or state office individuals who previously took an oath to support the Constitution of the United States as government officials and then “engaged in insurrection or rebellion against the same, or [gave] aid or comfort to the enemies thereof.” They maintain that Trump’s efforts to overturn the 2020 election clearly fall within section 3; therefore, “every official, state or federal, who judges qualifications” has not only the authority but the obligation to keep him off the 2024 ballot.

Needless to say, the professors’ theory is attracting lots of attention both pro^[1]See here, here, and here. and con.^[2]See here, here, here, and here. One argument gaining ground among the “cons” is that the presidency is not an “office” subject to section 3 disqualification. No doubt many Trump opponents will be eager to give it a try.^[3]Indeed, it is already attracting increasing interest on the left. However, invoking section 3 against Trump would add more chaos to our already chaotic and polarized politics and the case for doing so is far less clear-cut than the professors let on.

By way of background, section 3 was enacted to penalize former government officials who served the Confederacy during the Civil War in violation of their previously sworn allegiance to the United States. Section 3 includes language giving Congress the option to remove its disqualification. Congress did just that in two late Nineteenth Century statutes by freeing all Civil War era individuals from disqualification. This effectively nullified section 3 in relation to its original purpose, and it has lain largely dormant until now.

However, section 3 is still part of the Constitution and its text is not explicitly confined to its original purpose. Thus, the professors are surely correct that section 3 remains legally operative. They are also probably correct (although less obviously) that an individual can be subject to disqualification under section 3 without having previously been adjudged an insurrectionist or revolutionary as, for example, by conviction in an impeachment or criminal proceeding.^[4]In making this point, the professors rather confusingly describe section 3 as “self-executing.” Of course, no law is literally self-executing; laws cannot enforce themselves. An individual would … Continue reading

Their conclusions regarding the scope and application of the reincarnated section 3 are more problematic. They insist that the case for disqualifying Trump under it is “not even close.” But this is because they resolve virtually all relevant legal and factual ambiguities in favor of interpreting section 3 “sweepingly,” both in general and as applied to Trump. Without attempting to address everything in their 126-page article, the following are some major sticking points.

First, while section 3 is not a dead letter and must be presumed to mean something today, why give it the “capacious” scope that the professors do? Section 3 was enacted with a very specific and relatively narrow purpose in mind. Its original public meaning is clear:“insurrection or revolution” referred to the Civil War, and those disqualified for “engag[ing]” in it or giving “aid or comfort” to “enemies” were servants of the Confederacy—a regime that sought the forcible dissolution of the United States.

Although no longer operative, section 3’s original purpose and meaning should be relevant to assessing its current application. Thus, it seems  reasonable to construe section 3 as limited to contexts at least roughly equivalent to them, i.e., involving some kind of existential threat to the United States itself. Contrary to this, the professors give section 3 the broadest scope its language can bear, extending it far beyond anything resembling its original context.

There are additional reasons for giving section 3 a much narrower scope. The professors’ sweeping approach creates many potential slippery slopes between “insurrection or rebellion,” on the one hand, and protests or even riots that may be violent and disrupt government functions but still, as they recognize, fall outside of section 3.^[5]See footnote 407 on page 113 of their article. Their approach also creates potential conflict between section 3 and other constitutional provisions, such as those guaranteeing freedom of speech and due process of law (see below).^[6]They acknowledge these issues but give them short shrift. See pages 49-61. For example, they argue that section 3 takes precedence over constitutional provisions enacted earlier in time in case of … Continue reading

Equating section 3 to the application of routine candidate eligibility rules, as the professors do, is highly dubious. In marked contrast to section 3, such qualification requirements (e.g., age, citizenship, residency) are non-punitive and usually self-evident. Prospective candidates naturally assume the burden of meeting them; those who can’t simply have no right to run for office. By contrast, section 3 deprives otherwise qualified candidates of their right to run for office. Under the professors’ theory, election clerks could simply refuse to list a supposed section 3 violator on the ballot without any prior due process, thereby forcing the individual to assume the burden of proving their non-disqualification.^[7]Application of section 3 to candidates for election would depend mainly on state law. As a practical matter, resorting to the varied state processes could prove more challenging than one might think.

Another reason to construe section 3 narrowly and permit its use only sparingly is its fundamentally undemocratic effect. By keeping candidates for election off the ballot, it denies voters the opportunity to make their own judgments about the qualifications and fitness of those candidates.

Finally, sweeping application of section 3 is a recipe for more dissonance in our already discordant politics. In the near term, it encourages a host of lawsuits over Trump’s eligibility, probably lasting well into the 2024 election cycle and creating further uncertainty and instability. But that’s just for starters. While the current focus is on Trump, section 3 extends far beyond him—reaching all candidates for federal and state office, as well as incumbents of those offices, who have taken the federal constitutional oath. Injecting the professors’ expansive reading into our increasingly toxic politics will likely spawn attempts to weaponize section 3 in many different ways against many candidates and incumbent officials.

Turning to the application of section 3 to Trump, the professors base their case on “the overall package of events” following the 2020 election.^[8]See generally pages 111-121. Here again, they consistently resolve ambiguities, including many over interpretation of the facts, in favor of section 3’s applicability.

They maintain that the January 6 attack on the U.S. Capitol clearly constituted an “insurrection” within the meaning of section 3. But there is considerable debate featuring much political spin over how to characterize this disgraceful event. Another at least equally plausible interpretation is that an unruly protest careened out of control and turned into a riot, but one falling well short of an “insurrection.”

In this regard, the January 6 mob was largely unorganized and unarmed. Although some were violent, most participants who entered the Capitol wandered about aimlessly–taking selfies, committing minor acts of theft and vandalism, and acting more like jackasses than insurrectionists. The breach of the Capitol and disruption of the election certification were attributable less to any grand strategy or concerted effort on their part than to the incompetence and leadership failures of law-enforcement agencies, for which they have yet to be fully accountable.

The prosecutions of January 6 participants are also telling. Federal prosecutors have come down very hard on January 6 defendants. Yet fewer than 10 percent of the over 1,100 participants who have been indicted face charges involving weapons or acts of violence. Fewer than 5 percent face conspiracy-related charges, mainly seditious conspiracy under 18 U.S.C. 2384. Not a single participant has been charged with the specific federal crime of “rebellion or insurrection” (18 U.S.C. 2383).^[9]Seditious conspiracy under 18 U.S.C. 2384 overlaps insurrection in some respects. Section 2384 prohibits, in part, conspiracies “to overthrow, put down, or to destroy by force the Government of the … Continue reading Indeed, the Justice Department document describing the various charges nowhere refers to January 6 as an insurrection or rebellion.

Even if one still insists that the January 6 attack on the Capitol was an insurrection under section 3, it’s far from clear that Trump “engaged” in it.^[10]Of course, Trump’s reprehensible behavior regarding the January 6 events was clearly impeachable on other grounds. He did not participate directly, and his remarks in advance of it seem too ambiguous to constitute incitement. The professors concede that much of Trump’s “rambling” speech to the protesters was “innuendo.”^[11]Page 119. Significantly,  Congress specifically acquitted Trump of “incitement of insurrection” in his second impeachment.^[12]The professors emphasize that a majority in each House of Congress agreed with this charge. But this is as irrelevant as the fact that a candidate who lost the presidency in the Electoral College won … Continue reading Moreover, Federal Special Counsel Jack Smith declined to charge Trump with insurrection or rebellion, seditious conspiracy, or any other potentially insurrection-related crime.

The professors further stretch in suggesting that Trump gave aid or comfort to “enemies.” This concept, closely akin to treason, usually connotes assisting enemies of the United States during a declared war. Still another stretch is including in their “overall package” Trump’s many efforts apart from January 6 to overturn the election by pressuring election officials to “find” votes, organizing fake electors, etc. While these actions may well be fraudulent and criminal in other ways, they lack the element of violence that an “insurrection or rebellion” generally features.

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Trump is manifestly unfit for the presidency. However, conjuring up section 3 to disqualify him rests on a shaky legal foundation and would add considerably more devisiveness and instability to our already fragile politics. It would be better to adopt a limited interpretation of section 3 that reserves it for extreme situations bearing at least a passing resemblance to its original context. Presumably, such situations would arise very rarely if ever.

Nevertheless, it’s all but inevitable that someone (probably many) will employ this tactic in the coming months. When that happens, one can only hope that the issue reaches the Supreme Court quickly for definitive resolution.