A pair of conservative law professors have written a paper arguing that Donald Trump, because he engaged in “insurrection or rebellion,” is not eligible to return to the presidency. But the paper appears unlikely to block Trump’s candidacy.
Donald Trump Has a New Problem
Donald Trump, despite being under indictment in three different jurisdictions — and possibly a fourth to come — is running for president again, and has a massive lead in the Republican primary contest.
His indictments, in fact, appear to help his standing in the polls, even as there is a distinct possibility that he will be convicted of a crime before 2024’s Election Day.
But a new paper by a pair of law professors argues that Trump should not be allowed to run for or serve as president again because he is in violation of a provision of the Constitution that bars from office those who have engaged in “ insurrection or rebellion” against the state. The paper also argues that Trump should not even be allowed on election ballots.
“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,” Section 3 of the Fourteenth Amendment states. The amendment was passed and ratified in the aftermath of the Civil War.
The paper is called “The Sweep and Force of Section Three,” and it’s been published by the University of Pennsylvania Law Review. The authors are William Baude of the University of Chicago and Michael Stokes Paulsen of the University of St. Thomas, two professors associated with the Federalist Society and the conservative legal movement, and they are positioning their argument under “originalist” grounds.
In it, the professors argue that the Section Three language is “still operative” today, that it is “Legally Self-Executing,’ and that it applies to former President Trump. And they say that Trump’s actions, in connection with the events leading up to January 6, apply to 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 professors write.
The New York Times also wrote about the paper.
“Donald 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,” Baude told the newspaper.
The Times stated that, even if the professors are right, there is not likely to be any realistic way for that argument to keep Trump out of the presidential race.
It is possible, though, for voters or opposing candidates to file suit. But more likely, the facts of the insurrection will be judged by voters when Trump goes before them again- including the possibility that Trump could go on trial in the election case in the middle of the primary season.
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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. Follow him on Twitter at @StephenSilver.
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