In a prior blog post, I argued that Donald Trump should be kept off the ballot for the 2024 presidential election because of the Insurrection Clause of Section 3 of the Fourteenth Amendment. I have now changed my mind and have concluded that since Trump was not "an officer of the United States" on January 6, 2021, the Insurrection Clause does not apply to Trump.
I am also much more doubtful than I was a week ago of the correctness of the University of Pennsylvania Law Review law review article by William Baude and Michael Paulsen, The Sweep and Force of Section Three, which argues that former President Trump is disqualified from running again for President. A draft law review article taking issue with Baude and Paulsen, co-written by Josh Blackman and Seth Barrett Tilman, entitled Sweeping and Forcing the President into Section 3: A Response to William Baude and Michael Stokes Paulsen makes a good case that what happened on January 6, 2021 was not an "insurrection" and that the Baude/Paulsen reading of Section 3 of the Fourteenth Amendment is wrong. I think Josh Blackman and Seth Tillman are more likely right than not. At a minimum, this is a very muddled area of constitutional law, and it would set a bad precedent for American politics to not list a former president's name on election ballots given the confused state of the law surrounding Section 3 of the Fourteenth Amendment.
Let me, however, be very clear about one thing. I am a Never Trumper. I will vote for any Republican in the primaries over Trump or, if necessary for the Democratic Party's nominee for President over Donald Trump. I am a Never Trumper because of the former President's behavior on January 6, 2021 when he stirred up a crowd, started a riot on Capitol Hill to disrupt the counting of electoral votes, and then declined to call off the riot either with a Tweet or by calling out the National Guard. Instead, Trump watched the riot unfold on television approvingly as the rioters called out "Hang, Mike Pence." At the time, he was still the nation's Law Enforcement Officer in Chief with a constitutional obligation to "take Care that the Laws be faithfully executed." Trump's failure to stop the riot and the efforts he knew of to hang his own Vice President was nothing less than a High Crime and Misdemeanor.
