New Argument Asserts Trump Is Ineligible to Run

Law review article cites a clause in the 14th Amendment about supporting an insurrection
By John Johnson,  Newser Staff
Posted Aug 21, 2023 11:30 AM CDT
2 Constitutional Scholars Say Trump Ineligible to Run
Former President Donald Trump speaks to supporters during a visit to the Iowa State Fair, Aug. 12, 2023, in Des Moines.   (AP Photo/Charlie Neibergall, File)

Former President Trump is miles and miles ahead of his Republican competitors. But if an upcoming law review article is correct, the former president shouldn't even be running in the first place. The argument that Trump is constitutionally ineligible is being made by conservative scholars William Baude of the University of Chicago and Michael Stokes Paulsen of the University of St. Thomas, reports the Guardian. Coverage:

  • 14th Amendment: In their article to be published in the University of Pennsylvania Law Review, the pair cite section 3 of the 14th Amendment. It stipulates that no person who has taken an oath "as an officer of the United States" can hold office if they "have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof." The full text is here.
  • Their view: "The bottom line is that Donald Trump '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 3 of the 14th amendment," write Baude and Paulsen. "If the public record is accurate, the case is not even close."

  • In support: In the Atlantic, former judge J. Michael Luttig and law professor Laurence H. Tribe say the pair nailed it and write their own argument to that effect. "The former president's efforts to overturn the 2020 presidential election, and the resulting attack on the U.S. Capitol, place him squarely within the ambit of the disqualification clause, and he is therefore ineligible to serve as president ever again," they write. "The most pressing constitutional question facing our country at this moment, then, is whether we will abide by this clear command of the Fourteenth Amendment's disqualification clause."
  • Disagree: At Bloomberg, Noah Feldman (no fan of Trump) assesses the argument and concludes its proponents are "using magic words from the past" to try to block Trump. "Was the Jan. 6 attack on the Capitol an 'insurrection'? Did Trump participate or give aid and comfort to the 'enemies' of the Constitution under Section 3? These are contentious questions of constitutional interpretation." At the National Review, Dan McLaughlin makes a similar case, maintaining that the push to disqualify Trump is based on a "weak case" that is not improved by the conservative scholars' new essay.
  • So what now? In the Washington Post, Edward B. Foley writes that the Supreme Court should consider and settle the issue, ideally before the primaries begin in January. Failing that, the court should do so before GOP delegates meet at the party convention in July 2024 to name their nominee.
(More Election 2024 stories.)

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