The disqualification clause of the 14th Amendment was originally intended to prevent states in the old Confederacy from electing former officers of the Confederate Army and government to positions in state and federal government. At the end of the American Civil War, the federal government rejected the idea of a bloody purge of the leadership of the Confederacy – although there are good arguments that Reconstruction might have benefitted from a more aggressive approach to the leadership of the rebellion – but determined at the very least that prominent officials of the failed rebellion would not be able to resume their positions in government. Now, in the wake of his unsuccessful coup d’etat on January 6, 2021, some have argued that the provision applies to Donald Trump.
Donald Trump undoubtedly attempted to remain in power following his defeat in the 2020 election and encouraged his supporters to storm the Capitol in an effort to overturn the verdict of that election. Does this constitute “insurrection?” Would it have constituted insurrection in the minds of the framers of the 14th amendment, who had just defeated a rebellion over the course of a bloody four-year war?
It is tempting to say “Let the courts decide” but the language of the clause is sufficiently ambiguous to support multiple interpretations, and the courts are hardly insulated from politics. Given the reality of political polarization in America today, it is difficult to see how the disqualification clause could be enforced on anything but a state-by-state basis. There seems to be little enthusiasm for even thinking through the process of how the federal government might try to force Florida or Texas to remove Trump from the ballot.
While thinking on the procedural aspects of removing Trump from the ballot remains mostly abstract, the most likely outcome of any serious effort would be the removal of Trump from the ballot in states where he has no chance of winning anyway.
This might indeed have an impact on voter turnout and consequently on state and local races, but it would not alter the course of the Presidential election itself, beyond tainting the legitimacy of that election in the eyes of whichever party lost.
How does this differ from the indictments currently hovering over Trump?
For one, only two of the sets of indictments involve election interference and thus plausible vulnerability under the disqualification clause. Trump’s legal jeopardy for financial crimes in New York and mishandling of confidential documents in federal court do not involve an insurrection. The Georgia indictments can plausibly be connected with insurrection, but conflating election interference with armed insurrection could prove a bit of a stretch.
This means that the indictments of Trump’s activities on and around January 6 would provide the core of the case for his participation in a disqualifying insurrection. The simple fact of an indictment, however, is unlikely to be sufficient to support the argument that Trump should be held ineligible.
But much of this amounts to debating how many election lawyers can dance on the head of a pin. While the 14th Amendment argument has been associated with Trump’s other legal difficulties, the biggest difference is that the indictments and any trials that result from them represent the functioning of an established legal system. Trump will be convicted or acquitted based on well-worn processes for assessing fact and culpability.
Convictions (or acquittals) may be rejected by large factions on either side of the electorate, but they will nonetheless carry a degree of legitimacy because they will accord with long-standing criminal legal procedures. While the American legal system has come under much well-considered criticism, the foundations of its legitimacy remain essentially sound in the eyes of most Americans.
By contrast, a bespoke effort to strip Donald Trump’s ballot eligibility in some states but not in others doesn’t simply explore uncharted waters; it dives deeply and irreversibly into those waters.
What Happens Now to Donald Trump?
Many conservatives would like to pretend that Trump’s legal troubles represent an effort by Democrats to remove him from contention in 2024. In truth, it’s doubtful that Democrats actually want to bar Trump from running.
The underwhelming performance of Donald Trump and Trump-affiliated Republicans in general elections since 2018 has resulted in a degree of Democratic confidence (not necessarily supported by polling) regarding the electoral threat posed by Trump in 2024. In short, Democrats believe that Biden can once again defeat Trump, especially a Trump saddled by the wide range of legal difficulties that the former President has created for himself.
Democrats could certainly be wrong about this; they understated Trump’s electoral strength in 2016. Nevertheless, there’s little interest in Democratic circles in pursuing steps that would eliminate Trump from the race while simultaneously galvanizing his supporters. This is probably why some of the strongest arguments for disqualifying Trump have come from conservatives who are skeptical of the former President’s electoral prospects and would prefer to replace him with a stronger 2024 candidate.
It would be great if we lived in a world where the obvious toxicity of Donald Trump would render him unviable as a candidate for the GOP nomination for assistant dog catcher in Wheeling, West Virginia. Unfortunately, a substantial portion of the American electorate has determined to embrace Trump despite (or perhaps because of) his abject criminality and manifest unfitness to hold public office.
The solutions to the problem of Donald Trump lay in the ballot box and in the established federal and state legal systems that will hold him accountable, not in the aggressive interpretation of an obscure Civil War-era constitutional clause.
About the Author
Dr. Robert Farley has taught security and diplomacy courses at the Patterson School since 2005. He received his BS from the University of Oregon in 1997, and his Ph. D. from the University of Washington in 2004. Dr. Farley is the author of Grounded: The Case for Abolishing the United States Air Force (University Press of Kentucky, 2014), the Battleship Book (Wildside, 2016), Patents for Power: Intellectual Property Law and the Diffusion of Military Technology (University of Chicago, 2020), and most recently Waging War with Gold: National Security and the Finance Domain Across the Ages (Lynne Rienner, 2023). He has contributed extensively to a number of journals and magazines, including the National Interest, the Diplomat: APAC, World Politics Review, and the American Prospect. Dr. Farley is also a founder and senior editor of Lawyers, Guns and Money.