Push to Disqualify Trump Under 14th Amendment Based on ‘Bogus’ Theory: Legal Scholar

Theory invoking a 14th Amendment provision to “disqualify” President Trump persists despite the lack of legal clarity.

Former President Donald Trump arrives to depart at Atlanta Hartsfield-Jackson International Airport after being booked at the Fulton County jail in Atlanta on Aug. 24, 2023. Joe Raedle/Getty Images

Adversaries of former President Donald Trump, including some fellow Republicans, are pushing a much-debated legal theory to keep the embattled former president off the 2024 ballot in key U.S. states.

Proponents of a 14th Amendment-based theory argue that a post-Civil War clause ought to keep him off the ballot right now, even without a single conviction on the dozens of hotly disputed charges President Trump faces in four separate criminal cases.

Anyone who previously took an oath of office for certain positions, including president, and then engaged in a “rebellion” or “insurrection” against the United States must be barred from holding office again, that theory holds.

While still in office on that date, President Trump encouraged people to protest against the 2020 election results being certified and naming Democrat Joe Biden as the winner. But the largely peaceful demonstration at the U.S. Capitol turned violent. President Trump’s detractors blame him for the outcome.

However, legal experts disagree over whether the events of Jan. 6 can rightfully be classified as an attempt to overthrow the government. They also dispute whether the 14th Amendment’s disqualification clause applies. They also cannot even agree on whether the disqualification provision remains in effect.

Regardless, attempts to block President Trump’s candidacy under this theory persist despite the lack of legal clarity–and although similar efforts aimed at other Republican officeholders, including Congressmen, have fallen flat.

At the same time, some of President Trump’s supporters are calling for a tit-for-tat reaction. They say President Biden’s alleged entanglements in his son’s foreign business dealings ought to disqualify him from reelection; the president has denied wrongdoing.

Scholars Cannot Agree

A respected constitutional scholar, Mike Davis, denounces the 14th Amendment disqualification theory as “bogus and very dangerous” to America’s status as a Constitutional Republic.

“If any partisan elected official thinks that they can unilaterally take President Trump off of the ballot under the disqualification clause of the 14th amendment, they are going to face a very rude political and legal awakening,” Mr. Davis told The Epoch Times.

Mr. Davis, who heads The Article III Project, an organization named for the judicial-focused Article III of the Constitution, said removing President Trump’s name from a ballot would undoubtedly trigger a lawsuit that would qualify for “expedited review.” It would then go on a fast track through the federal court system and land at the U.S. Supreme Court, he said.

Likewise, other legal scholars such as George Washington University law professor Jonathan Turley and the Heritage Foundation’s Hans von Spakovsky disagree with legal experts and politicos who argue that the 14th Amendment can be used to disqualify a candidate.

Mike Davis, founder of the Article III Project. Courtesy of Mike Davis.

In an Aug. 21 online column, Mr. Turley opined that this theory “has a political appeal that outstrips its constitutional support.”

He calls it a product of “the desperation of divided times.”

Mr. Turley also said Democrats have pushed this theory before; they’ve tried to use it against “dozens of Republican members of Congress,” to no avail.

Part of the reason: it’s hard to classify the events of Jan. 6 as an insurrection or rebellion. He said polls have shown that many Americans view it the way he does: as a “protest gone too far.”

Mr. Turley also asks: “If Trump supported a rebellion or insurrection, what was the plan?”

If protests that got out of hand can trigger disqualification, then any protests, including “anti-Trump protests and the certification challenges to electoral votes in 2016,” when President Trump won the election, could also be considered “disqualifying,” Mr. Turley wrote.

And people such as  Rep. Jamie Raskin (D-Md.) "could be summarily purged from office for having sought to overturn an election,”  Mr. Turley wrote.

Law Not in Effect?

Another hurdle: “Section 3 of the 14th Amendment is no longer in effect,” Mr. von Spakovsky told The Epoch Times in an email on Sept. 1. He notes that Congress passed two amnesty acts, in 1872 and 1898.

Mr. von Spakovsky thoroughly explored the issue in a Heritage paper published last year, stating, “The plain language of these acts permanently removed the insurrection disqualification in Section 3 from the 14th Amendment.”

Hans von Spakovsky, manager of the Heritage Foundation’s Election Law Reform Initiative. Courtesy of Hans von Spakovsky

However, a pair of legal scholars disagree with that interpretation. In a 126-page paper published in the University of Pennsylvania Law Review, William Baude and Michael Stokes Paulsen wrote: “While Congress comprehensively relieved insurrectionists of the disability of disqualifications incurred prior to 1898, it did not (and could not) erase Section Three from the Constitution. Section Three remains in force.”

That analysis appeared a few days after another influential essay appeared in The Atlantic magazine. Law professor Laurence Tribe, known as a liberal, and former appellate judge J. Michael Luttig, who is considered conservative, both opined that President Trump is already disqualified from seeking reelection because of his connection to the Jan. 6 events.

But Mr. von Spakovsky points out another problem with the 14th Amendment theory. “State officials have no authority to decide whether or not an individual meets the three qualifications outlined in the Constitution to be president; only Congress has that authority,” Mr. von Spakovsky told The Epoch Times. “These attempts to disqualify [President Trump]  from the ballot are unconstitutional.”

‘Would Tear Our Country Apart’

In addition, “Donald Trump has never been convicted of ‘insurrection or rebellion’ by any court and not by Congress, either, in the impeachment proceedings that were attempted against him,” Mr. von Spakovsky said.

However, journalist Julie Kelly has reported that she believes a grand jury has continued to operate in secret in Washington, D.C., and could be teeing up long-rumored “seditious conspiracy” charges against the former president.

If such charges against President Trump materialize, they would surely enhance efforts to disqualify him under the 14th Amendment–especially in the wake of lengthy prison terms recently meted out to some Jan. 6 protesters who were convicted on that charge.

Protesters gather at the police line on the west side of the U.S. Capitol on Jan. 6, 2021. Special to The Epoch Times

Still, Mr. Davis argues that disqualification under the 14th Amendment would require not only a conviction but also for the conviction to be upheld on appeal.

Thus, he said, a lengthy process would ensue.

“These Democrats [and some Republicans] think they can simply take President Trump off the ballot so the American people don’t have a choice in the next election; they are playing with fire...It would tear our country apart,” Mr. Davis said.

Even if the disqualification clause of the 14th Amendment is still in effect, the Arizona Supreme Court pointed out that no federal process exists for enforcing it.

Action in Multiple States

Attempts to invoke the 14th Amendment against President Trump have been attracting headlines with increasing frequency in recent weeks, apparently sparked, in part, by the two attention-getting articles.

On Aug. 24, Florida tax lawyer Lawrence Caplan cited authors of the Aug. 19 article in The Atlantic when he filed a lawsuit seeking to block President Trump’s name from the 2024 ballots in that state.

On Aug. 29, a staff writer for The Atlantic, David Frum, wrote: “The Fourteenth Amendment won’t save us from Donald Trump.“ He called it a ‘fantasy’ that the amendment could be used to oust President Trump from the 2024 ballot. Mr. Frum also called attempts to do so “misguided and dangerous,” and instead advocated for beating him at the ballot box.

On Aug. 31, a federal judge, who was appointed by Democrat President Barack Obama, dismissed Mr. Caplan’s suit, declaring that “an individual citizen does not have standing to challenge whether another individual is qualified to hold public office.”

John Anthony Castro of Texas has also filed multiple similar actions against President Trump.

On Sept. 1, Mr. Castro, who is a little-known Republican presidential candidate, trumpeted his goal on X, formerly known as Twitter: “New federal lawsuits being filed today in Maine and Nevada! We’re targeting the key electoral votes to deny Trump any path to 270.” That’s the required number of electoral votes to win the presidency.

Mr. Castro, whose website says he is the managing partner of a tax-law firm, said he would drop all of his court actions if President Trump would agree to a one-on-one debate, with ex-Fox News star Tucker Carlson as moderator.

That proposal follows President Trump’s blockbuster interview with Mr. Carlson, drawing more than 250 million views on X, formerly known as Twitter. The interview aired Aug. 23, while other GOP presidential hopefuls were in Milwaukee, participating in a live televised debate on Fox News.

Former president Donald Trump speaks with Tucker Carlson in a pre-recorded interview aired on debate night on Aug. 23, 2023. Tucker Carlson/X

New Hampshire Taking a Look

Meanwhile, in New Hampshire, state officials are giving serious consideration to an attempt to prevent President Trump from being listed on the ballot there.

Bryant “Corky” Messner, a former New Hampshire state senate candidate whom President Trump endorsed, is one of the people leading that effort, calling it necessary to uphold the Constitution.

In a joint statement sent to The Epoch Times, the state’s Secretary of State and Attorney General’s offices said they were “aware of public discourse” about the 14th Amendment disqualification clause and whether it could or should apply to President Trump’s candidacy.

“Neither the Secretary of State’s Office nor the Attorney General’s Office has taken any position regarding the potential applicability...to the upcoming presidential election cycle,” the statement says, adding, “The Attorney General’s Office is now carefully reviewing the legal issues involved.”

Those state officials declined to answer specific questions that The Epoch Times asked, including an estimate as to how long the review would take and how many phone calls or other reactions they had received from the public.