‘Can’t Run’: Donald Trump Is Now Facing What Would Have Been Unthinkable – In the brilliant 2005 legal dramedy, Boston Legal, James Spaders’ cynical character, Alan Shore, goads his law partner, Denny Crane, played by the venerable William Shatner into legal action by facetiously inquiring, “What does any true, red-white-and-blue American do when he’s wronged? Or even slightly put out for that matter?” To which, the gonzo Crane replies excitedly, “We sue!”
That’s precisely what’s happening across the country’s key battleground states in the run-up to the 2024 Presidential Election. Except that the lawsuits aren’t being brought about by people who’ve been slightly wronged. The lawsuits I’m referring to are being brought by (in many cases, Republicans) individuals who do not think that former President Donald J. Trump is constitutionally allowed to be on the ballots in their states.
Presently, there are two lawsuits, one in New Hampshire and the other in Florida, where Trump’s fellow Republicans are suing for the forty-fifth president to be disallowed from appearing on the ballots in their states. This is based on the perception that, as president, Trump broke his oath of office by engaging in what they claim were insurrectionist activities.
Surely, most of you are laughing at this. Donald Trump as a rebel leader? The man is a billionaire who was famous for firing people on his play business reality television series. But that is precisely the argument that is being made.
The Case Against Trump
For several months, a coterie of legal scholars have argued that the former president, who is currently running a vicious reelection campaign in the GOP Primary, will soon be constitutionally disqualified from holding—let alone running—for high office.
That’s because the former president has been indicted in a Georgia grand jury investigation related to allegations that he attempted to unduly influence the vote counting in the Peach State during the 2020 Presidential Election. On top of the Georgia case, Trump has been indicted in a federal grand jury probe for his purported attempt to overturn a lawful election on January 6, 2021.
While he has not been convicted of these crimes, the fact remains that the Georgia case is going to be difficult for him to win, if only because the prosecution in that case has a damning audio recording of Trump demanding that election officials “find” him 11,780 more votes. They’ve also managed to get Trump indicted in a Racketeering Influenced and Corrupt Organizations (RICO) Act case, where it’s easier for prosecutors to get a conviction. The federal grand jury case, meanwhile, is based in Washington, D.C., where upwards of 90 percent of the people in the nation’s capital voted for Joe Biden in 2020 and Hillary Clinton in 2016.
The legal scholars advancing the argument that Trump is constitutionally disqualified from running are saying that, if he should be found guilty in either case, Article III of the Fourteenth Amendment specifically bars Trump from ever holding public office again. That’s because the Fourteenth Amendment was created in the wake of the Civil War and was designed to prevent secessionists from taking power yet again in the southern states. That rule, these legal scholars argue, must be applied to Trump today, since he is being tried for crimes related accusations that he took part in an insurrectionist plot to prevent the lawful handover of power to Joe Biden in 2020.
The question that lawyers have been trying to answer has been: how would they go about using the so-called “insurrection clause” to end Trump’s candidacy from a legal perspective?
Lawsuits from Hell
Lawsuits are one of the easiest ways to create a precedent for other courts to follow. That’s why the cases in New Hampshire and Florida are canaries in the legal coalmine for Donald Trump.
Robin Rosenberg, an Obama-appointed judge in Florida dismissed the lawsuit outright by claiming that the man who instigated the lawsuit, Lawrence A. Caplan, did not have standing to bring the lawsuit. Caplan was claiming that Trump’s presence on the Florida ballot in the upcoming presidential election cycle would cause Caplan injury, if Trump’s name appeared on the ballot and he won the presidency.
Judge Rosenberg threw the case out because Caplan could not prove any specific injury, should Trump be on the ballot in Florida and win reelection in 2024. Basically, one cannot sue another individual for general complaints. They must be able to show real harm would be done to them.
Ironically, Rosenberg’s decision was based on a 2008 case, Berg v. Obama, in which an individual attempted to have Barack Obama removed from the ballot because, according to them, Obama was ineligible to run for office because he was not an American citizen. That case, too, was thrown out in 2008 because the individual who brought the suit could not prove either their claims or that they’d suffer specific injuries if Obama remained on the ballot.
But the other lawsuit in New Hampshire is much more specific than Florida’s Caplan v. Trump was. In the New Hampshire, the lawsuit was brought forward by the unlikely GOP 2024 presidential candidate, John Anthony Castro. Because this individual is currently running for the Republican Presidential nominee—no matter how unlikely Castro is to win the nomination—he has a much greater chance of showing specific damages to both him and his candidacy, should Trump appear on the ballot in New Hampshire.
In fact, Castro says that the lawsuit in his home state of New Hampshire is part of a larger legal campaign that he’s been waging since 2022, when he brought a similar suit against the Federal Election Commission (FEC). That case was thrown out, but the presiding judge told Castro to narrow the parameters of his suit by focusing on former President Trump, which is why the New Hampshire lawsuit he just filed is directed against the forty-fifth president.
According to Castro, he intends to take the suit to all fifty states, once the case clears certain bureaucratic hurdles in New Hampshire. The fledgling Republican presidential candidate in New Hampshire has already filed similar suits against Trump in Pennsylvania, Michigan, Arizona, and Wisconsin as of Aug. 31.
The former president has become a Jedi master of slipping out of legal problems that would have crushed any other candidate. But, even a lucky cat is believed to have only nine lives. Trump is currently indicted in four cases (two of them federal) and has a combined 91 charges lodged against him. If it can be proven in either the Georgia state or Washington, D.C.-based grand jury investigations that Trump attempted to incite an insurrection, the Castro lawsuit becomes the likely death knell for former President Trump’s chances of appearing on ballots in key swing states.
More ominously, if Trump is convicted in either the Georgia or Washington, D.C. cases, Castro’s lawsuit can be used to not only remove Trump’s name from the ballot, but the Fourteenth Amendment can be used to entirely disqualify Trump from running for office.
Republicans Are Not United in 2024
That the original argument for using the insurrection clause of the Fourteenth Amendment emanated not from the Left, but from two prominent conservative lawyers who belong to the prestigious Republican legal club, known as the Federalist Society, should not be overlooked. Beyond that, the two lawsuits to first use the insurrection clause of the Fourteenth Amendment against former President Trump were brought by Republicans.
This indicates a larger schism within the Republican Party that is playing out just beneath the surface. It also, in my opinion, gives greater heft to the case for using the insurrection clause against Trump (if he should, indeed, be convicted in either the Georgia or Washington, D.C. grand jury trials).
A 19FortyFive Senior Editor, Brandon J. Weichert is a former Congressional staffer and geopolitical analyst who is a contributor at The Washington Times, as well as at the Asia Times. He is the author of Winning Space: How America Remains a Superpower (Republic Book Publishers), Biohacked: China’s Race to Control Life (Encounter Books), and The Shadow War: Iran’s Quest for Supremacy (July 23). Weichert occasionally serves as a Subject Matter Expert for various organizations, including the Department of Defense. He can be followed via Twitter @WeTheBrandon.
