The Constitutional Case for Barring Trump from the Presidency

Earlier this month, two conservative law professors announced that they would be publishing an article, which will appear in the University of Pennsylvania Law Review next year, arguing that Donald Trump is ineligible for the Presidency. The professors, William Baude and Michael Stokes Paulsen, make the case that unless Congress grants Trump amnesty, he cannot

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Earlier this month, two conservative law professors announced that they would be publishing an article, which will appear in the University of Pennsylvania Law Review next year, arguing that Donald Trump is ineligible for the Presidency. The professors, William Baude and Michael Stokes Paulsen, make the case that unless Congress grants Trump amnesty, he cannot run for or hold the office of the Presidency again because of his behavior surrounding the events of January 6th. The argument rests on Baude and Paulsen’s interpretation of Section 3 of the Fourteenth Amendment, which states that officeholders, such as the President, who have taken an oath to “support” the Constitution and “shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof” will no longer hold such an office. Several days ago, Laurence Tribe, a liberal law professor, and J. Michael Luttig, a conservative former judge for the U.S. Court of Appeals, wrote an article for The Atlantic, in which they essentially endorsed the view advanced by Baude and Paulsen: “The former president’s efforts to overturn the 2src2src presidential election, and the resulting attack on the U.S. Capitol, place him squarely within the ambit of the disqualification clause, and he is therefore ineligible to serve as president ever again.”

Luttig was once on the Republican shortlist for Supreme Court nominees; recently he has become an outspoken critic of Trump. (He also offered legal advice to Mike Pence when the Vice-President was being pressured by Trump not to certify the election results.) Luttig and I recently spoke by phone about whether Trump is in fact disqualified. During our conversation, which has been edited for length and clarity, we discussed the mechanism by which any removal of Trump from state ballots would take place, the different objections to Luttig’s argument, and why he thinks the Supreme Court is likely to get involved.

You write that Baude and Paulsen “conclude that Section 3 requires no legislation, criminal conviction, or other judicial action in order to effectuate its command. That is, Section 3 is ‘self-executing.’ ” What does that mean in practice?

Well, not to repeat the question in the answer, but it means that no legislation by Congress or judicial decision or any other finding in a court of law—by virtue of a conviction in a criminal trial, for instance—is necessary for the clause to operate against someone who has previously taken an oath to support the Constitution of the United States and thereafter engaged in insurrection or rebellion against the Constitution of the United States. This was one of the largest unanswered questions until Baude and Paulsen’s comprehensive research and scholarship on the clause, including whether congressional legislation is required, whether a particular individual had engaged in an insurrection or rebellion, and whether there must be a conviction for the same in order for that individual to be barred from holding future office in the United States.

What would be an example of something else that would be self-executing in a constitutional amendment?

The most obvious example, Isaac, is the age requirement in order to become President of the United States. So suppose that someone who was thirty-two years old applied to be on the ballot in a given state, and it was undisputed that that person was thirty-two years old and not thirty-five years old. It would be the Constitution itself that would empower that state election official to disqualify that candidate from the ballot for the Presidency.

Removing someone from the ballot because of the age requirement seems like it would be easy for an official to do without making a judgment call. Someone’s age is an objective fact. Whereas this seems like it calls for state officials to make judgment calls, which could potentially open things up for abuse. Is there a categorical difference there?

There is a categorical difference. There is vastly more judgment entailed in determining whether, for instance, the former President engaged in an insurrection or rebellion than in determining whether a candidate was thirty-five years old. That doesn’t relieve the obligated election official from making that determination. The process for placing individuals on the ballot varies from state to state. But, under our reading of the Fourteenth Amendment, an individual election official could make that decision himself or herself.

As a practical matter, is that likely to occur? It would depend, I think, on the office of the election official. If it were the secretary of state who was charged with placing individuals on the ballot, then I believe that decision by the duly appointed state official would suffice. But, in all events, whoever makes the qualification or the disqualification decision and whether they make it, that decision will be immediately challenged, probably by the former President himself. And that challenge would go directly into court—either state or federal—and it would eventually make its way to the Supreme Court of the United States.

Michael McConnell, a conservative professor at Stanford, and a former federal judge like yourself, has commented on this issue. He wrote, “Congress has enacted a statute, 18 U.S.C. § 2383, which covers participation in rebellion or insurrection, and which provides that those found guilty ‘shall be incapable of holding any office under the United States.’ This mode of enforcement has been enacted by the entity entrusted with responsibility to enforce the Fourteenth Amendment; it proceeds through the ordinary course of prosecution by the executive, trial by a court, decision by a jury, and appeal to appellate courts, with due process at every step.” Why isn’t that the standard?

Michael McConnell is one of the country’s most notable constitutional scholars and a dear friend of mine for thirty-plus years. I don’t know what you are reading from, but he doesn’t say in the quoted passage that that is the only avenue for disqualification. He just makes the observation—correct, of course—that Congress, through 18 U.S.C. § 2383, has also provided a disqualification alternative. But that is not the same thing as to say that the Constitution itself is not an additional alternative. I don’t know if Professor McConnell has said that. I have not read anything in which he said that.

Let me just read some more from him: “It is not obvious that partisan officials in state governments, without specific authorization or checks and balances, should apply broad and uncertain definitions to decide who can run for office in a republic, when responsible officials with clear statutory and constitutional authority have not done so.”

I don’t know if you are a lawyer or not.

I’m not.

O.K., what the professor said is “it’s not clear.” He is not saying that the Constitution itself is not an additional alternative option. Now, what I did read from Professor McConnell was that his concern—and we address it, by the way, in our article—is that it appears anti-democratic to him to let state elected officials responsible for putting people on the ballot do that without there having been a prior determination by a court of law that an individual engaged in an insurrection or rebellion. Now this is very interesting, Isaac.

About twenty hours ago, I responded on Twitter to my friends’ concern about the anti-democratic character of the reading of Section 3 that Professor Tribe and I took. I am going to read this into the record, and I would like for you to use it. 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. I posted that twenty hours ago, and it has almost six hundred thousand views.

If you just step back from the legalese, the clause has its origins in the postbellum era. It was to disqualify persons who had previously taken an oath and then engaged in insurrection or rebellion. I have had so many people in the past forty-eight hours say to me, It just makes common sense, doesn’t it? And I say to them, Yes, I think it does in its application to the former President. He had taken an oath to support the Constitution, and he engaged in insurrection or rebellion, or he had provided assistance, aid, or comfort to a rebellion in or around January 6th, when he attempted to overturn the 2src2src Presidential election. And he inspired and at least gave aid and comfort to the attack on the United States Capitol for the purpose of interfering with and preventing the joint session from counting the electoral votes for the Presidency, the former President knowing that the electoral votes had been cast for then candidate Joe Biden. That’s a classic understanding of an insurrection or rebellion against the authority of the United States.

So, to clarify, you’re claiming mainly that the insurrection was specifically Trump encouraging the interruption of the proceedings at the Capitol as opposed to things such as calling up Georgia’s secretary of state and asking him to “find” more votes. You are talking more specifically about the events on January 6th. Is that accurate?

No, that is why I specifically said on or around January 6th. The calls to Raffensperger were part and parcel of the rebellion against the United States government. The plan was to overturn the validly held election. The entire plan was multifaceted and sprawling in its co-conspirators, according to the Georgia indictment. It was all part and parcel of the insurrection of rebellion against the Constitution.

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