Former President Donald Trump’s representatives have begun to push back against the theory that Trump may be barred from the 2024 ballot because of the 14th Amendment’s “insurrection clause.”
The pushback comes as 14th Amendment talk becomes more and more serious.
On Sunday Representative Adam Schiff and Senator Tim Kaine both said that there was a strong case for using the 14th Amendment to bar Trump from the upcoming election.
Should Donald Trump worry?
According to Schiff, who spoke with MSNBC, there is a “valid argument” based on the 14th Amendment, which is “pretty clear,” that if “you engage in acts of insurrection or rebellion against the government, or you give aid and comfort to those who do,” you’re barred from running for office.
“It doesn’t require that you be convicted of insurrection,” Schiff said. “It jus requires that you have engaged in these acts. It’s a disqualification from holding office again, and it fits Donald Trump to a T.”
Kaine for his part, speaking with ABC News, said that there is a “powerful argument to be made” for barring Trump and that the issue was “probably going to get resolved in the courts.” Kaine added that the January 6th riot “was designed for a particular purpose at a particular moment, and that was to disrupt te peaceful transfer of power as is laid out in the Constitution.”
The pushback
Naturally, Donald Trump’s team is dismissing the 14th Amendment talk, saying that “Never Trumpers are scared to death” about Trump’s prominence in the GOP primary.
“The people who are pursuing this absurd conspiracy theory and political attack on President Trump are stretching the law beyond recognition much like the political prosecutors in New York, Georgia, and D.C.,” said a Trump spokesperson. “There is no legal basis for this effort except in the minds of those who are pushing it.”
The Trump campaign super PAC, MAGA Inc., dismissed Kaine as “Hillary Clinton’s former running mate” with a “bogus legal theory.”
MAGA Inc. also cited an Obama-appointed Florida judge’s dismissal of a “challenge to Trump’s candidacy under the 14th Amendment.” But what the super PAC failed to point out was that the judge dismissed the case for lack of legal standing – not for lack of legal merit; meaning that the judge was not commenting on whether or not the 14th Amendment barred Trump from the 2024 election, only that the party making the claim had no basis for making the claim. (So someone may well come along with a basis for making a 14th Amendment claim, and find a judge receptive to the argument.)
Damage to democracy?
The Wall Street Journal’s editorial board has come out against employing the 14th Amendment to ban Donald Trump from the ballot. “The consequences of a 14th Amendment panic are likely to be worse for democracy and its institutions than trusting voters and 234 years of sturdy constitutional example.”
Of course, voter opinion isn’t relevant in any way to constitutional adherence; the voters don’t have any say in whether the constitution bars Trump’s conduct – that oversight belongs to the judiciary.
Yet the Democrats and anti-Trump Republicans who are mulling a 14th Amendment challenge may want to consider having more respect for the voters, and leaving the 2024 election to the voters, rather than interfere for political purposes, on the grounds of an untested constitutional theory.
Harrison Kass is the Senior Editor and opinion writer at 19FortyFive. An attorney, pilot, guitarist, and minor pro hockey player, Harrison joined the US Air Force as a Pilot Trainee but was medically discharged. Harrison holds a BA from Lake Forest College, a JD from the University of Oregon, and an MA from New York University. Harrison listens to Dokken.
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