Donald Trump Legally Can’t Be President Again? The 14th Amendment to the United States Constitution is today considered one of the most consequential amendments. Adopted on July 9, 1868, as one of the Reconstruction Amendments, it was proposed in response to issues related to former slaves following the American Civil War and is noted for addressing citizenship rights and equal protection under the law. Not surprisingly, it was bitterly contested, notably by states of the defeated Confederacy, which were forced to ratify it to regain representation in Congress.
However, it is Section 3 that could be especially noteworthy in the run-up to the next presidential election. In a paper, titled “The Sweep and Force of Section Three” published by the University of Pennsylvania Law Review this month, William Baude of the University of Chicago Law School and Michael Stokes Paulsen of the University of St. Thomas School of Law make a case that this section of the 14th should disqualify former President Donald Trump from the race.
Last week, Trump was indicted on four felony counts for his alleged efforts to overturn the 2020 election.
Insurrection or Rebellion?
The authors noted, “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.”
They added that the section “remains an enforceable part of the Constitution, not limited to the Civil War, and not effectively repealed by nineteenth century amnesty legislation,” while it “is self-executing, operating as an immediate disqualification from office, without the need for additional action by Congress.”
The 126-page document, which lays out the history of the amendment, makes a case that it disqualifies former President Donald Trump, and potentially many others, because of their participation in the attempted overthrow of the 2020 presidential election.
Baude and Paulsen also wrote that it is clear that at least two purported factual defenses should be seen as simply immaterial. The authors claim that an individual cannot use the claim of a “stolen election” to justify engaging in or supporting insurrection or rebellion.
In other words, an effort to “stop the steal” is not a defense for such actions, even if the individual believed (mistakenly) that the election had in fact been stolen, or if they believed that their insurrectionary conduct was somehow lawful.
Donald Trump Specifically Disqualified
The authors of the paper wrote that the “most politically explosive application” of Section 3 to the events of January 6, 2021, is also the “most straightforward.” In their view, on the basis of the public record, they claim the former president Donald Trump is constitutionally disqualified from again being president – or even holding any other covered office – because of the role he played in attempting to overturn the 2020 election and the events leading to the January 6 attack.
“The case for disqualification is strong,” Baude and Paulsen argued. “There is abundant evidence that Trump deliberately set out to overturn the result of the 2020 presidential election result, calling it ‘stolen’ and ‘rigged’; that Trump (with the assistance of others) pursued numerous schemes to effectuate this objective; that among these were efforts to alter the vote counts of several states by force, by fraud, or by intended intimidation of state election officials, to pressure or persuade state legislatures and/or courts unlawfully to overturn state election results, to assemble and induce others to submit bogus slates of competing state electors, to persuade or pressure Congress to refuse to count electors’ votes submitted by several states, and finally, to pressure the Vice President unconstitutionally to overturn state election results in his role of pre[1]siding over the counting of electors’ votes.”
In addition, the authors noted that leading up events of January 6, the former president had repeatedly solicited, suborned, and pressured Vice President Mike Pence to prevent the counting of the electoral votes in favor of
President-elect Biden.
Words to the Crowd
The newly published paper addressed how Donald Trump assembled a large crowd to march on the Capitol, which was essentially to “intimidate Congress and the Vice President into complying with [Trump’s] wishes and thereby prevent the official counting of the votes of electors confirming Trump’s defeat.”
The former president had announced via Twitter that a protest would be held on January 6, 2021:
“Big protest in D.C. on January 6th. Be there, will be wild!,” it read. That tweet had been sent on December 19, 2020, after a six-hour Oval Office meeting, and it subsequently drew tens of thousands of Americans to Washington.
The authors of the paper cited testimony amassed by the House’s January 6th Commission, and wrote that it showed that Trump’s supporters interpreted the tweet as “a call to arms, sometimes literally.”
The Events of January 6
On January 6, 2021, Trump delivered his “incendiary address at the White House Ellipse” to the crowd of supporters that the authors said, “he had effectively summoned to the Capitol to oppose what he had been calling the ‘steal’ of the election.”
Trump repeated the false claim that he had, in fact, won the election, telling his supporters, “We won this election and we won it by a landslide.” Trump argued that the Democrats and the media had “stolen” the election and “rigged” a false outcome.
It was Trump’s response when the mob illegally, and violently, entered the Capitol Building.
“As events unfolded and the violence began, Trump maintained silence—and indeed deliberate indifference bordering on tacit encouragement—for what had by that time clearly become a forcible insurrection,” Baude and Paulsen wrote. “For three hours after learning that his supporters had forcibly invaded the Capitol and were disrupting the constitutional process, Trump took no action to urge them to leave, despite being begged to do so by his advisors and despite having a constitutional duty to take care that the laws be faithfully executed.”
Even as the insurrection was in progress and after the Capitol had been breached, Trump instead condemned Vice President Pence for not “hav[ing] the courage to do what should have been done to protect our Country and our Constitution.”
The January 6th Commission later concluded that was “a statement that could only further enrage the mob.”
When Trump finally – after several hours and with great reluctance – directed his supporters to leave the Capitol, they quickly dispersed.
“The bottom line is that Donald Trump both ‘engaged in’ ‘insurrection or rebellion’ and gave ‘aid or comfort’ to others engaging in such conduct, within the original meaning of those terms as employed in Section Three of the Fourteenth Amendment,” Baude and Paulsen argued. “If the public record is accurate, the case is not even close. He is no longer eligible to the office of Presidency, or any other state or federal office covered by the Constitution. All who are committed to the Constitution should take note and say so.”
Author Experience and Expertise
A Senior Editor for 19FortyFive, Peter Suciu is a Michigan-based writer. He has contributed to more than four dozen magazines, newspapers, and websites with over 3,200 published pieces over a twenty-year career in journalism. He regularly writes about military hardware, firearms history, cybersecurity, politics, and international affairs. Peter is also a Contributing Writer for Forbes and Clearance Jobs. You can follow him on Twitter: @PeterSuciu.
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