Could Trump be barred under the constitution’s ‘engaged in insurrection’ clause?

The provision in Section 3 of the 14th Amendment of the Constitution, however, complicates matters further. It states that individuals who have engaged in rebellion or insurrection against the United States and have provided comfort or aid to its enemies cannot hold office, even if they have taken an oath as a United States officer. It is stated that a person who has not taken an oath is the one who says this.

In a widely discussed article, Thomas St. Paulsen and Michael Stokes from the University of Pennsylvania Law School and William Baude from the University of Chicago concluded that the prominent conservative scholars’ efforts to overturn the 2020 election disqualify Trump from running for office due to the language used.

If the public record is not accurate, it is even closer in the case of Donald Trump’s engagement in rebellion or insurrection, as stated in the 14th Amendment’s section that employs the original meaning of terms such as ‘comfort’ or ‘aid and rebellion’. Paulsen and Baude wrote in their 126-page article that the understanding of the original intent and history of the amendment traces this line.

Baude and Paulsen mention in their article that the provision was implemented following the civil war to prohibit individuals who had affiliated with the Confederacy from occupying federal positions. Never before has a presidential candidate been subjected to such a test to prevent them from holding office.

The attack on the Capitol on January 6th was believed to be an insurrection, adding that anyone who incites rebellion or insurrection is subject to the limits set forth in Section 3 of the oath, which applies to the Confederates who broke their oath during the Civil War and extends to no limits.

Said Bookbinder, the executive director of the watchdog organization Citizens for Responsibility and Ethics in Washington (Crew), stated in an interview earlier this month that disqualification under the 14th amendment does not necessitate a criminal conviction. The movement to disqualify Trump is expected to unfold at the state level simultaneously with both federal and state cases that criminally accuse Trump and his associates of attempting to overturn the election. Free Speech for People, a left-leaning group, has already dispatched letters to election officials in 10 states, urging them to proclaim Trump ineligible to run for office under the 14th amendment. Bookbinder mentioned that Crew is also preparing to initiate legal action in multiple states to bar Trump from appearing on the ballot.

Edward Foley, a professor of law at the Ohio State University, expressed, “If Trump were to secure the electoral college victory, this matter could potentially surface on January 6, 2025, unless it is definitively resolved. It is of utmost importance to resolve this promptly and certainly before the election, rather than after.”

He added, “That would be a real constitutional crisis. It would be a disaster. Can you envision an effort to disqualify Trump after he’s won?”

If Trump winds up being constitutionally disqualified, many Americans may chafe in the midst of a politically heated election year, unable to vote for their preferred candidate.

Foley stated, “We are not permitted to vote for someone we may consider voting for, which is a concept that we strongly dislike in a democratic society.” “On the contrary, Barack Obama could actually be a fairly strong candidate for the Democratic Party, but he is constitutionally disqualified. Therefore, it is not constitutionally permissible to nominate Barack Obama, even though Democrats or Americans may strongly desire to do so.”

The disqualification for changing the location of the state could be influenced by the challenges that state courts or election boards hear. It may be the responsibility of state secretaries to determine the answer. According to Michael McConnell, a law professor at Stanford who has been more skeptical about using the 14th amendment to disqualify Trump, it would be a practical matter to shoot it up to the real Supreme Court quickly to find out who knows the answer.

Chris Christie, a notable adversary of Trump within the GOP competition, has the potential to spearhead such a endeavor. Calabresi proposed in a blogpost that a contender who runs against Trump, and can assert that they were harmed by the inclusion of an unqualified candidate on the voting paper, would likely possess the strongest legal argument. Furthermore, it remains uncertain which individual or entity could possess the legal authority to contest Trump’s inclusion on the voting paper.

McConnell observed that the justice department chose not to pursue charges against Trump under a specific statute that criminalizes rebellion.

He expressed, “Trump is one degree separated. None of them have faced charges of rebellion. There were numerous individuals involved in the January 6 invasion who have been legally pursued and maybe January 6 escalated to that extent. Undoubtedly, it was a significantly more severe public disturbance than what we typically observe. However, whether it truly qualifies as a rebellion, I believe it’s a bit of an exaggeration.” The amendment ought to be understood as an immense final option.

Despite the absence of a formal charge of insurrection, Calabresi stated that Trump could potentially be disqualified under the 14th amendment. He pointed out that the criteria for proving Trump’s involvement in an insurrection would be less stringent in civil cases aiming to disqualify him compared to criminal prosecutions.

If candidates began regularly attempting to invalidate their opponents from the ballot, McConnell stated that his doubt regarding disqualification was not meant to defend Trump, but rather a worry about the potential consequences.

“I don’t want to see him water down the meaning of these words, so I bring motions of disqualification against your political opponents, despite the fact that it becomes another aspect of our dysfunctional electoral and legal system.”