Trump is almost certainly disqualified from being president. Will it matter?
Will Baude and Michael Stokes Paulsen hyper-launched an essential discussion, but the question is what, if anything, happens now. Also: Four other good weekend reads.
Understandably, people are ready for Donald Trump not to be a part of public life.
Enter Will Baude (an early blogger like Law Dork here) and Michael Stokes Paulsen, two conservative law professors, who did just that in their forthcoming new law review article, “The Sweep and Force of Section Three.“
What is Section Three? There was some discussion of it in the aftermath of Jan. 6, but then it took a back seat to prosecutions. (I’ve been having some really interesting discussions this week about that, which I hope to return to soon, but, for now, Section 3.)
Section 3 of the Fourteenth Amendment states:
No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
In their article — which comes in at 126 pages, so there is plenty to dig your teeth into if you are so inclined — the pair details the history, purpose, scope and current status of the provision. Eventually, beginning at page 117, they reach what they call “[t]he most politically explosive” and yet also “most straightforward“ application of Section 3 to the efforts to overturn the 2020 election and most specifically to the actions of January 6:
The bottom line is that Donald Trump both “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 Three of the Fourteenth Amendment. If the public record is accurate, the case is not even close. He is no longer eligible to the office of Presidency, or any other state or federal office covered by the Constitution. All who are committed to the Constitution should take note and say so.
This is not, they argue, something that just sits on the internet or in the law review: “Officials—administrators, courts, legislators—whose responsibilities call upon them to apply Section Three properly and lawfully may, indeed must, take action within their powers to preclude Trump from holding future office.”
This is also not something that they argue lightly — and it’s certainly not something that would take effect in any simple way. Any such effort would be painted as anti-democratic by Trump and his supporters — a concern that Michael McConnell has already warned about in response to this discussion. Additionally, at some point (if not multiple points), any such path to disqualify Trump from the ballot would end up in court. Those lawsuits, in turn, could run up against the Supreme Court’s decision this past term in Moore v. Harper and the limits the court suggested exist on state court action relating to federal elections.
What’s to be done with that?
Ned Foley, an Ohio State law professor I’ve known for too long now, laid out a possible answer in The Washington Post that takes into account some of the forward-looking limits sketched out in Moore:
If a state statute has not already authorized administrative officers to seek disqualification of presidential candidates, then — as the Supreme Court signaled this year — it might be a usurpation of the state legislature’s prerogative to determine the “manner” of conducting presidential elections for these officials to assert this power on their own.
Consequently, the safest course is for a state legislature to clarify, by enacting a new statute as soon as possible, that its election officials have the power to remove insurrectionists from the presidential ballot. A new statute could create an expedited timetable to ensure that the case reaches the Supreme Court in time for a decision before the Republican convention in July.
Over the past two weeks, many others have also weighed in, including, most notably, J. Michel Luttig and Lawrence H. Tribe, who published a piece on Saturday in The Atlantic, and Steven Calabresi, who wrote about the issue at The Volokh Conspiracy. They are not alone. Many others — outside of law professors and retired judges — have also weighed in.
Also, and as noted earlier, while Baude and Paulsen hyper-launched this discussion in August, the idea is not new. Ryan Goodman and Clara Apt at Just Security have had a non-Trump-specific but extensive litigation and legislation tracker about Section 3 running since May. Citizens for Responsibility and Ethics in Washington (CREW) released a report about Section 3, specifically about Trump, in July. The Project On Government Oversight (POGO) did the same last year, issuing a report in November 2022.
As Luttig and Tribe put it, though, Baude and Paulsen’s work could be a turning point:
The evidence laid out by the legal scholars William Baude and Michael Stokes Paulsen … is momentous. Sooner or later, it will influence, if not determine, the course of American constitutional history—and American history itself.
The bottom line, for now, is that this discussion isn’t going away and could get very dicey, very fast if people outside of law reviews and opinion pages start acting on these discussions. And, if that happens, maybe August was the best time for Baude and Paulsen to give us a 126-page beach read.
The Section 3 discussion was updated and expanded after initial publication, with the final update at 7:30 p.m.
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Four other weekend reads
About the Fifth Circuit … an important legal analysis from Adam Unikowsky, whose dispatches on courts’ treatment of the arguments from the challengers in the mifepristone case have been essential reading. (Note: This is very much a post by a lawyer for lawyers.)
About the Fifth Circuit, part two … an important practical read from Grace Haley at Abortion, Every Day, about what’s happening now and what it means. And, as Jessica Valenti has been doing there since Roe v. Wade was overturned, keep reading, because Abortion, Every Day, details what’s happening in our post-Roe nation across the country in a way that no one else that I know of is doing.
About the Georgia indictment … a thoughtful piece from Ken White. While I don’t agree with all of it, I think it hits most of his points quite well and serves as an appropriate “let’s at least take a minute to think about what is happening here, including how this plays out on a daily basis for other people.”
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