Notice And Comment: Disqualifying The Donald?
Does the Fourteenth Amendment bar Donald Trump from holding government office—including the presidency of the United States?
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The other shoe finally dropped. On Monday night, a grand jury in Fulton County, Georgia, issued an indictment charging former president Donald Trump, as well as 18 co-defendants, with a slew of crimes related to what the indictment describes as an effort “to unlawfully change the outcome of the election in favor of Trump.” So there are now two parallel prosecutions, one federal and one state, essentially accusing Trump and his co-conspirators of trying to steal the 2020 election.
I’ll share my thoughts on the Fulton County indictment in the next edition of Judicial Notice. For now, though, I’d like to hear from you, my readers. Hence this Notice and Comment (N&C), a recurring feature of these pages in which I pick a controversial legal topic and call upon my audience to discuss and debate in the comments.
Today’s topic is closely related to the prosecutions brought against Trump by Fulton County District Attorney Fani Willis and Special Counsel Jack Smith. Here it is:
Is Donald Trump disqualified from holding any future federal office, including but not limited to the presidency?
This might seem like a question where your politics will determine your answer, with liberals saying yes and conservatives saying no. But check out this report from Adam Liptak of the New York Times:
Two prominent conservative law professors have concluded that Donald J. Trump is ineligible to be president under a provision of the Constitution that bars people who have engaged in an insurrection from holding government office. The professors are active members of the Federalist Society, the conservative legal group, and proponents of originalism, the method of interpretation that seeks to determine the Constitution’s original meaning.
The professors—William Baude of the University of Chicago and Michael Stokes Paulsen of the University of St. Thomas—studied the question for more than a year and detailed their findings in a long article to be published next year in The University of Pennsylvania Law Review.
Baude and Paulsen are highly respected scholars, and their argument, while bold, deserves serious consideration. Their article, “The Sweep and Force of Section 3,” is fascinating and well worth reading. (It also contains an interesting—and highly critical—discussion of a key opinion by Chief Justice Salmon Chase, one of our youngest son’s two namesakes.)
But the article is also 126 pages long, and you are busy people. Fortunately, it has a clear and concise abstract:
Section Three of the Fourteenth Amendment forbids holding office by former office holders who then participate in insurrection or rebellion. Because of a range of misperceptions and mistaken assumptions, Section Three’s full legal consequences have not been appreciated or enforced. This article corrects those mistakes by setting forth the full sweep and force of Section Three.
First, Section Three remains an enforceable part of the Constitution, not limited to the Civil War, and not effectively repealed by nineteenth century amnesty legislation. Second, Section Three is self-executing, operating as an immediate disqualification from office, without the need for additional action by Congress. It can and should be enforced by every official, state or federal, who judges qualifications. Third, to the extent of any conflict with prior constitutional rules, Section Three repeals, supersedes, or simply satisfies them. This includes the rules against bills of attainder or ex post facto laws, the Due Process Clause, and even the free speech principles of the First Amendment. Fourth, Section Three covers a broad range of conduct against the authority of the constitutional order, including many instances of indirect participation or support as “aid or comfort.” It covers a broad range of former offices, including the Presidency. And in particular, it disqualifies former President Donald Trump, and potentially many others, because of their participation in the attempted overthrow of the 2020 presidential election.
For another version of the argument, also shorter than the Penn Law Review article, see this Volokh Conspiracy post by Professor Steven Calabresi, another Federalist Society stalwart—a FedSoc co-founder, no less.
Finally, here’s the text of Section Three of the Fourteenth Amendment:
No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, 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. But Congress may by a vote of two-thirds of each House, remove such disability.
So, readers: does this provision render Donald Trump ineligible to serve as president?
Please share your thoughts in the comments. Also, please feel free to discuss the Georgia indictment while you’re at it; it would be great to hear a wide range of perspectives on it before I discuss it in the next Judicial Notice.
As usual for N&C posts, comments are open to all readers, not just paid subscribers. Thanks!
UPDATE (4:55 p.m.): Thanks to the commenter who flagged for me Professor Michael McConnell’s excellent response to Baude and Paulsen, which Professor Eugene Volokh posted at the Volokh Conspiracy. (Fun fact: Baude clerked for Professor McConnell back when he was Judge McConnell of the Tenth Circuit—but Baude’s former boss disagrees with his ex-clerk’s analysis.)
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The idea that this provision is self-executing is so impractical as to be foolish. So every single county elections board in the nation makes its own decision as to who is ineligible for president? That is a recipe for chaos.
Many of the comments so far seem focused on practical application—and understandably so. Here's some discussion from the article that might be relevant (pp. 23-24):
"Anybody who seeks office will at some point need to show that they are entitled to hold that office. At every point that this occurs, Section Three governs. So, for instance, state or local election boards, and state Secretaries of State, may possess state-law authority to make at least initial determinations as to eligibility of candidates for elected office in that state or representing that state in Congress (as authorized by Article I, section 4 of the Constitution)—and, thus, whether or not such candidates shall be placed on a primary or general election ballot. Those state bodies or officers are obliged, often by oath—sometimes by oath mandated by the U.S. Constitution—to act consistently with the requirements of the Constitution in the discharge of their duties. Accordingly, such state actors can and must apply Section Three’s disqualification in carrying out their state-law responsibilities—just as they possess the authority and duty to comply with and enforce the Constitution’s other qualification-for-office requirements.
For an example of how this process is supposed to work, consider how the state of Georgia entertained a Section Three challenge to the qualifications of Representative Marjorie Taylor Greene under Georgia law. A state administrative law judge took evidence about Representative Greene’s involvement in the events of January 6, 2021. The judge proceeded under the theory that if January 6 was a constitutional 'insurrection,' and if Representative Greene had been part of it, she would be barred from office. But it concluded that the challengers had failed to meet their burden of proof under state law: 'In short, even assuming, arguendo, that the Invasion was an insurrection, Challengers presented no persuasive evidence Rep. Greene took any action—direct physical efforts, contribution of personal services or capital, issuance of directives or marching orders, transmissions of intelligence, or even statements of encouragement—in furtherance thereof on or after January 3, 2021.' Secretary of State Brad Raffensberger issued a final decision ratifying the hearing officer’s proposed findings that day.
Such determinations about ballot eligibility may also be subject to further judicial review. In state courts, these procedures will of course depend on what review is available under state law. Similarly, federal courts might well possess jurisdiction, subject to the usual federal jurisdiction doctrines (such as standing, ripeness, mootness, and abstention), to decide cases of candidate eligibility. Continuing the example, Representative Greene did file a federal lawsuit attempting to enjoin the then-pending state proceedings (mentioned above), and the district court concluded that the case was justiciable and that Younger abstention did not apply, but that Greene’s claims failed on the merits. While Greene’s appeal to the Eleventh Circuit was pending, she prevailed in the state proceedings, so the case was dismissed as moot. The details, of course, will vary from case to case. But where any of these tribunals has jurisdiction they too obviously have the power and duty to apply Section Three as the supreme law of the land."