Donald Trump disqualification argument is gaining steam: Two conservative law professors wrote a paper earlier this month arguing that, because he participated in an insurrection against the government, Donald Trump is ineligible to be president. The idea is continuing to gain purchases, although it’s not clear how such a disqualification could be enforced
Donald Trump Has a New Problem He Can’t Shakeoff So Easily
Earlier this month, the University of Pennsylvania Law Review published a paper by a pair of conservative law professors, arguing that due to his participation in an insurrection, former President Donald Trump is not constitutionally eligible to serve as president again.
Written by the University of Chicago’s William Maude and Michael Stokes Paulsen of the University of St. Thomas School of Law, the paper is titled “The Sweep and Force of Section Three.” It references Section Three of the Fourteenth Amendment, passed shortly after the Civil War, and argues that it should apply to former President Trump.
“Consider the overall package of events: the dishonest attempts to set aside valid state election results with false claims of voter fraud; the attempted subversion of the constitutional processes for states’ selection of electors for President and Vice President; the efforts to have the Vice President unconstitutionally claim a power to refuse to count electoral votes certified and submitted by several states; the efforts of Members of Congress to reject votes lawfully cast by electors; and, finally, the fomenting and incitement of a mob that attempted to forcibly prevent Congress’s and the Vice President’s counting of such lawfully cast votes, culminating in a violent and deadly assault on the Capitol (and Congress and the Vice President) on January 6, 2021,” the two professors write.
It’s been clear from the outset that while there might be some legal basis to the argument by Maude and Paulsen, it’s probably not realistic for such an argument to be enforced in a way that prevents Trump from being a candidate.
However, the argument has continued to be made.
According to CNN, “Prominent conservative legal scholars are increasingly raising a constitutional argument that 2024 Republican candidate Donald Trump should be barred from the presidency.”
The latest place the argument was made was in The Atlantic, by liberal law professor Laurence Tribe and conservative legal scholar-turned-Trump-critic J. Michael Luttig.
“The people who wrote the 14th Amendment were not fools. They realized that if those people who tried to overturn the country, who tried to get rid of our peaceful transitions of power are again put in power, that would be the end of the nation, the end of democracy,” Tribe told CNN this week.
Luttig, meanwhile, suggested that Trump be kept off the ballot in states for that reason, although any state that did so would almost certainly be met with a legal challenge.
However, not everyone agrees. Jonathan Turley, the law professor who often defends Trump from various legal charges in the media, this week called the idea of Trump being ineligible for office a “legal urban legend.”
“Constitutional urban legends often have an even more immediate appeal and tend to arise out of the desperation of divided times. One of the most popular today is that former President Donald Trump can be barred from office, even if he is not convicted in any of the four indictments he faces, under a long-dormant clause of the 14th Amendment,” Turley wrote this week for The Hill.
“I have strongly rejected this interpretation for years, so it is too late to pretend that I view this as a plausible argument. However, some serious and smart people take an equally strong position in support of the theory… Despite my respect for these academics, I simply fail to see how the text, history or purpose of the 14th Amendment even remotely favors this view. Despite the extensive research of Baude and Paulsen, their analysis ends where it began: Was January 6 an insurrection or rebellion?”
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Stephen Silver is a Senior Editor for 19FortyFive. He is an award-winning journalist, essayist and film critic, who is also a contributor to the Philadelphia Inquirer, the Jewish Telegraphic Agency, Broad Street Review and Splice Today. The co-founder of the Philadelphia Film Critics Circle, Stephen lives in suburban Philadelphia with his wife and two sons. Stephen has authored thousands of articles over the years that focus on politics, technology, and the economy for over a decade. Follow him on Twitter at @StephenSilver.
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