Two legal scholars have made a robust case (http://deliverypdf.ssrn.com) for using Section 3 of the 14TH Amendment to disqualify Trump from the 2024 election:
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.
Am not convinced that the case is as clear as Baude & Paulsen make it. There are three barricades on the 14th Amendment road to Trump’s disqualification: “insurrection”/”rebellion,” “officer of the United States,” and — the recurring problem that will stay with us for decades — six reactionaries at the Supreme Court, a place where law and sense now go to die.
Insurrection
Section 3 says what it says. Section 18 USC 2383 codifies it. But neither defines “rebellion” or “insurrection”. Past prosecutions have found it difficult to meet the intent requirement. Judge Mathew, in the New Mexico case disqualifying a January 6er, did not: “The term ‘insurrection,’ as understood by knowledgeable nineteenth-century Americans and Section Three framers, referred to an (1) assemblage of persons, (2) acting to prevent the execution of one or more federal laws, (3) for a public purpose, (4) through the use of violence, force, or intimidation by numbers.”
But that was with respect to a guy who participated in the riot at the Capitol. It’s different for Trump; he wasn’t there, though prosecutors might nonetheless get a DC jury to convict on a conspiracy claim related to insurrection, and even get the DC Circuit to agree. Inevitably, their case will crash and burn at the Supreme Court because the Six will contort facts, logic, language, and the law in support of executive power. (Naturally, as part of the tails-I-win-heads-you-lose scam that’s all the rage at One First Street, they’ll craft the outcome to apply to Trump only. Future Democratic presidents will get the switcheroo.)
Officer of the United States
Hard as it is to believe, it’s not a settled question whether, under Section 3, the president is an “officer of the United States”. Disqualification applies to anyone “having previously taken an oath, as a member of Congress, or as an officer of the United States … to support the Constitution of the United States”. Had the drafters intended to extend the provision to thepresident, they could (would?) have done so explicitly in the same manner that they covered “member[s] of Congress”.
That’s not to say the president isn’t an officer but, as this article points out — Is the President an “officer of the United States” for purposes of Section 3 of the Fourteenth Amendment? — there’s a debate to be had. When there’s a debate, a sensible outcome is not guaranteed.
In contrast, Baude & Paulsen argue that it makes little sense for Section 3 to exclude a “hold[er] [of] any office, civil or military, under the United States” but then to qualify the exclusion with that person’s “having previously taken an oath, as a member of Congress, or as an officer of the United States….” They make the case for the need to eschew “the type of ‘secret-code’ hidden-meanings hermeneutic” and “linguistic hair-splitting”.
Unfortunately, the language says what it says. This means the judiciary’s literalists have enough of a foothold for that hair-splitting so as to prevent application of Section 3 to Trump. Further, we already know the view of Chief Justice Roberts: “‘[O]fficers of the United States’ are appointed exclusively pursuant to Article II, Section 2 procedures. It follows that the President, who is an elected official, is not an ‘officer of the United States.’” As such a case would end up with him, we know its outcome.
“Self-executing”
Baude & Paulsen say that Section 3 is “legally self-executing,” i.e., disqualification from office is “constitutionally automatic whenever its conditions for disqualification are met. Nothing more needs to be done in order for Section Three’s prohibitions to be legally effective.”
That may well be, but it’s an abstraction. Legally effective and practically effective are worlds apart. Someone still will need to do something. Baude & Paulsen acknowledge as much when, at the end of their article, they say that “those who possess the power and duty to apply and enforce Section 3 have a constitutional responsibility to do so, fairly and vigorously”. Among those who possess that power they cite state election boards, secretaries of state, the House, the Senate, state election officials, electors, federal and state judges. The problem is that only some might assert that power. It’s just as easy to assume that, especially in battleground states, many won’t. For those who did have the gumption, litigation would ensue. Here, too, we know where and how the matter would end.
