According to two prominent conservative legal scholars, former president Donald Trump could be banned from holding public office.
In a recent article, legal professors and Federalist Society members William Baude of the University of Chicago and Michael Stokes Paulsen of the University of St. Thomas argued that Trump is already constitutionally banned from holding any public office, including the presidency.
Their claims relate to the Constitution and Trump’s involvement with the January 6 attack on the Capitol.
Section Three of the 14th Amendment A Challenge for Donald Trump
Both scholars referenced a section within the Constitution that bans government officers involved in an insurrection from holding public office.
“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,” the clause states.
Such a disability can only be removed by a two-thirds vote in each House, an unlikely scenario given that a party has not held such a supermajority in Congress since the 1970s.
All three branches of the federal government have identified the Capitol riots as an insurrection – one which Trump has been charged with inciting by Special Counsel Jack Smith.
The Scholars’ Argument
Baude and Paulsen argued that the “full legal consequences” of Section Three “have not been appreciated or enforced.” While the clause was included following the end of the Civil War, it remains “an enforceable part of the Constitution, not limited to the Civil War, and not effectively repealed by nineteenth century amnesty legislation.”
The Disqualification Clause, they argue, is “self-executing” and “should be enforced by every official, state or federal, who judges qualifications.” They argued the aforementioned section “repeals, supersedes, or simply satisfies” conflicts with existing constitutional rules, including the First Amendment rights to free speech and to protest.
In their conclusion, Baude and Paulsen wrote that Section Three “covers a “broad range of conduct against the authority of the constitutional order” and “a broad range of former offices, including the presidency.” Explicitly, the pair argue that the clause “disqualifies former president Donald Trump, and potentially many others, because of their participation in the attempted overthrow of the 2020 presidential election.”
Section Three has already been used to disqualify then-New Mexico County Commissioner Couy Griffin from office, so there’s no reason why it cannot also be used against Donald Trump.
Shay Bottomley is a British journalist based in Canada. He has written for the Western Standard, Maidenhead Advertiser, Slough Express, Windsor Express, Berkshire Live and Southend Echo, and has covered notable events including the Queen’s Platinum Jubilee.
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