A growing number of prominent legal scholars have concluded that former President Donald Trump, who is facing two indictments related to his efforts to overturn the outcome of the 2020 presidential election, is disqualified from the presidency under the U.S. Constitution
J. Michael Luttig, a former federal judge who was an adviser to then-Vice President Mike Pence, and longtime Harvard constitutional law scholar Laurence Tribe on Saturday published a piece in The Atlantic arguing that the 14th Amendment disqualifies the former president from returning to the Oval Office.
Referring to Section 3 of the 14th Amendment, they wrote that "any person who has taken an oath to support and defend our Constitution and thereafter rebels against that sacred charter, either through overt insurrection or by giving aid or comfort to the Constitution's enemies," is "automatically" excluded from "future office and position of power in the United States government."
The reasoning of these "originalist" legal scholars is "deeply researched and solid," James Sample, a Hofstra University constitutional law professor, told Salon
"But law on such questions is never strictly a matter of law apart from politics," Sample continued. "Judges don't decide legal questions in a vacuum. The answer to the question of whether, as a practical matter, Trump is barred from the presidency is itself another question: would five Supreme Court justices say that he is? And the answer to that question is a mixture of the political, legal, and the unknown."
Two members of the conservative Federalist Society, professors William Baude of the University of Chicago and Michael Stokes Paulsen of the University of St. Thomas, recently came to the same conclusion as Luttig and Tribe. The pair studied the question for more than a year and is set to publish an article next year in the University of Pennsylvania Law Review, according to The New York Times.
After digging into the question, Baude said that they concluded Trump "cannot be president — cannot run for president, cannot become president, cannot hold office — unless two-thirds of Congress decides to grant him amnesty for his conduct on Jan. 6"
Even though a law review article may not halt Trump's pursuit of the presidency, it has the potential to bolster lawsuits seeking to disqualify the former president from state ballots.
Last year, Couy Griffin, a county commissioner in New Mexico, was removed from his elected position for his role in the US Capitol attack.
This verdict was issued as a response to a lawsuit filed by Citizens for Responsibility and Ethics in Washington, which alleged that Griffin violated a clause in the 14th Amendment of the Constitution by participating in an "insurrection" against the US government. The nonprofit government watchdog plans to initiate a similar lawsuit targeting Trump.
But some constitutional scholars are not sold on the argument.
"I am not persuaded that the riot on January 6, or the events leading up to it, amount to the type of 'insurrection' or 'rebellion' sufficient to disqualify a candidate from holding office," Dale Carpenter, a constitutional law expert at Southern Methodist University, told Salon. "I think their understanding of those terms is too capacious."
Even if the former president's conduct met the constitutional standard, Carpenter added, he would have "serious institutional concerns" about having courts bar a major-party candidate from the ballot. This would effectively deny tens of millions of Americans from voting for the candidate of their choice.
"Short of an adjudicated determination that he was engaged in insurrection or rebellion, Trump should not be judicially barred from holding office for his conduct leading up to January 6," Carpenter continued. "There would be serious institutional dangers in allowing partisan state election officials to begin disqualifying their political opponents. Even if these disqualifications faced judicial review, the further damage and chaos they would inflict on faith [of] our political system would be intolerable. There is no magic legal wand to make Trump go away."
Baude and Paulsen also contended that individuals who currently hold or previously held public office and were involved in orchestrating efforts to overturn the election results in favor of Trump should also be "stringently scrutinized" under the Constitution, especially if they intend to run for future public positions.
Those who supported the attempt to overturn the 2020 election should face specific criminal charges in state and federal court, get fair trials with the usual presumption of innocence, and if convicted, face fines and or jail time, Carpenter told Salon.
"Ideally, at least one of the trials related [to] those efforts would get to trial before the election so that Americans can make a fully informed political choice," he said.
But the way to hold Trump accountable for his "inexcusably dangerous conduct" is to defeat him in the November 2024 election and send him "into history as the only major party candidate to lose the popular vote three times," Carpenter said.
Former federal prosecutor Adam Kamenstein pointed out that there are five ways to hold Trump accountable for his 2020 election crimes: politically, constitutionally, criminally, democratically, and historically.
"We failed to hold him politically accountable when he was not convicted of impeachment shortly after the insurrection," Kamenstein said. "To hold him accountable Constitutionally would require the Supreme Court to rule he is ineligible under Section Three of the 14th Amendment, and it is highly unlikely that the Supreme Court will have the courage to wade into that argument and jeopardize its perceived legitimacy among nearly half the American people, should it even have the opportunity. To hold him accountable democratically, of course, will depend on how people vote. So, we are down to our two final chances for practical accountability: the election or a criminal conviction. After that, all that is left is whatever accountability history ascribes."
