Let's say you hate Donald Trump and really, really, really don't want him to become president of the United States again. How do you prevent that? Well, most would agree the best way would be to defeat him electorally, either in the Republican primaries or in the 2024 general election.
But a significant number of Trump's adversaries don't have enough faith in our democratic process to make that happen. So they hope that at least one of the four prosecutions targeting Trump will put an end to Trump's presidential chances. Even though conviction does not legally bar Trump from running and winning, the hope is that as a practical matter, there's no way a convicted Trump could regain the presidency.
But there are some of Trump's opponents who don't appear to have a lot of faith in that course of action, either. So they are now exploring the idea that Trump is already disqualified from running for office. State election boards, or secretaries of state, they say, can -- and should -- simply remove his name from the ballot in their states. There's no need for a hearing, or a trial, or a legal ruling, or legislation, or any sort of adjudication process that might get messy. It's already done. Voila! Trump is off the ballot. Let's move on.
This magical result occurs, proponents say, by way of the 14th Amendment. Section 3 of the amendment prohibits anyone who has taken an oath to uphold the Constitution, and then "engaged in insurrection or rebellion against [the United States], or given aid or comfort to the enemies thereof" from ever holding public office. The 14th Amendment was ratified in 1868. Section 3 was intended to apply to former Confederate officials. It has "played no significant role in American governance since 1872 and was regarded by many scholars as moribund," writes legal scholar and former federal judge Michael McConnell. But that was until some anti-Trumpers came up with the idea of using it against the former president.
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The idea of using Section 3 to disqualify Trump from office has been floating around for a while. I wrote about it in January 2022. At the time, I wrote that for Trump to be kicked off ballots, some authority, like Congress, "would first have to establish that the events of Jan. 6 constituted an "insurrection or rebellion" against the United States government, and then that Trump engaged in the insurrection, and then, such a judgment would have to stand up in court."
The new twist is the idea that none of that is necessary. Trump is already disqualified, and all state election officials have to do is remove him from ballots on their own initiative. And then he is gone. Section 3, in this way of thinking, is "self-executing." It is "constitutionally automatic," in the words of law professors William Baude and Michael Stokes Paulsen, writing in a new law review article that is making the rounds. "Section 3 requires no legislation or adjudication to be legally effective. It is enacted by the enactment of the Fourteenth Amendment [in 1868]. Its disqualification, where triggered, just is." All a state election official has to do is pick it up and use it.
The anti-Trump law professors are telling election officials across the country that they can just take Trump's name off now. In fact, if they don't, they might find themselves the target of lawsuits from anti-Trump forces who demand Trump be removed.
It all seems a little too simple, doesn't it? A voice of caution in all this comes from McConnell. First, McConnell is skeptical about applying the word "insurrection" to the events of Jan. 6, 2021. "Section 3 speaks of 'insurrection' and 'rebellion,'" he writes. "These are demanding terms, connoting only the most serious of uprisings against the government, such as the Whisky Rebellion and the Civil War. The terms of Section 3 should not be defined down to include mere riots or civil disturbances, which are common in United States history. Many of these riots impede the lawful operations of government, and exceed the power of normal law enforcement to control. Are they insurrections or rebellions, within the meaning of Section 3?"
McConnell questions Baude and Paulsen's belief that all sorts of actions fit under the heading of "insurrection," even actions that many Americans would consider constitutionally protected speech. "Baude and Paulsen maintain that Section 3 'covers a broad range of conduct against the authority of the constitutional order, including many instances of indirect participation or support," McConnell writes. "They explicitly state that Section 3 trumps the First Amendment. The terms 'broad range of conduct' and 'indirect support' are ominous, especially since they also say that Section 3 trumps the First Amendment and does not require due process. What could go wrong?"
A lot could go wrong. And then there is the problem of letting state secretaries of state make so momentous a decision as to remove a major political party's presidential candidate from the ballot on their own authority. "We must not forget that we are talking about empowering partisan politicians such as state secretaries of state to disqualify their political opponents from the ballot, depriving voters of the ability to elect candidates of their choice," McConnell writes. "If abused, this is profoundly anti-democratic."
Finally, McConnell notes that Congress has passed a law against insurrection, which, like the 14th Amendment, also carries the penalty of disqualification to hold public office. The Justice Department could actually charge people with insurrection if it chose.
"It is significant that the Department of Justice has prosecuted hundreds of persons for their involvement in the Jan. 6 incursion at the Capitol, but has not charged anyone, including Trump, with insurrection under this or any other statute."
McConnell's objections capture in some depth the essential danger of the latest 14th Amendment craze in anti-Trump world. In addition, no one's analysis, so far at least, has really explored the effect such a stunt would have on our political system. But you can be sure of one thing: Someone is going to try this. Some official somewhere will cite the new interpretation of the 14th Amendment, Section 3, to remove Trump from a ballot. And then, who knows what will happen?
This content originally appeared on the Washington Examiner at washingtonexaminer.com/opinion/trumps-enemies-come-up-with-new-scheme-to-take-him-out.
(Byron York is chief political correspondent for The Washington Examiner. For a deeper dive into many of the topics Byron covers, listen to his podcast, The Byron York Show, available on the Ricochet Audio Network at ricochet.com/series/byron-york-show and everywhere else podcasts are found.)
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