While the nation watches as Donald Trump is repeatedly indicted for multiple federal offenses yet remains in the lead for the GOP primary nomination, Constitutional scholars are arguing that in fact, he is already disqualified from the presidential office for a second term.
Last week, law professors William Baude of the University of Chicago and Michael Stokes Paulsen of the University of St. Thomas, respectively— both members of the conservative Federalist Society— released a 126-page report in which they argued that because of Section Three of the 14th Amendment, he cannot hold public office.
The section referenced, also known as the Disqualification Clause, bars from office any government officer who takes an oath to defend the Constitution and then engages in or aids an insurrection against the United States. Only a two-thirds majority of both houses of Congress can act to remove such disability.
The question is: has it been determined that Trump “engaged in insurrection”?
All three branches of the government have identified the attack on the Capitol as an insurrection, with multiple federal judges, bipartisan majorities in the House and Senate, as well as the bipartisan Jan. 6 House select committee, citing Trump as its central cause.
As Baude and Paulsen note, “Section Three requires no prior criminal-law conviction, for treason or any other defined crime, as a prerequisite for its disqualification to apply.” Trump’s indictment by special counsel Jack Smith for election-related crimes only further bolsters the case for his constitutional disqualification.
Those federal criminal charges include conspiracy to obstruct an official proceeding, obstruction of, and attempt to obstruct an official proceeding, and conspiracy against rights by attempting to “oppress, threaten or intimidate” people in their free exercise and enjoyment of their right to vote.
Although Trump’s role in fomenting the attack on the Capitol has been well documented, Baude and Paulsen argue that the “full legal consequences” of Section Three “have not been appreciated or enforced.” As they explain, the Disqualification Clause is “an enforceable part of the Constitution, not limited to the Civil War, and not effectively repealed by nineteenth century amnesty legislation.”
The provision is also “self-executing … without the need for additional action by Congress.” As the professors note, Section Three “can and should be enforced by every official, state or federal, who judges qualifications.”
Experts note that every president, regardless of party, takes an oath to preserve and defend the Constitution of the United States. Enforcing the Disqualification Clause against an official who violated that oath is an act of patriotism, not partisanship. As Baude and Paulsen state, “Officials must enforce the Constitution because it is law … Section Three has legal force already.”
While this may be consistent with constitutional law, one wonders how in the present political climate of partisan and cultural division, such a prohibition could be enforced without causing even worse consequences.
On January 22, 2020, in the wake of the January 6 insurrection there was a similar discussion about “removing” Trump from office through legal means sanctioned by the Constitution. Politico wrote:
“The House has held hearings that exposed, sometimes in vivid fashion, the Trump-Giuliani Ukraine scheme. Trump has seen officials working in his own government—indeed his own ambassadors—publicly criticize his conduct, and polls show that most of the public believes he did something wrong”.
In a disturbing déjà vu, these words apply just as aptly today in 2023. After multiple investigations and indeed, indictments, there is plenty of evidence that Trump is guilty of acts that would clearly disqualify him from holding office.
But having pointed out all the damaging facts about Trump’s actions, Politico nevertheless concluded in 2020 that “Trump’s Removal Would Be Insane.”
Rich Lowry, the editor of National Review and a contributing editor with Politico Magazine, believed at the time that, “The Disqualification Clause has already been used successfully to promote accountability for the insurrection, and, in the coming months, it will be used again to prevent Trump and others from serving in public office.” Lowry was wrong, it was not.
Baude and Paulsen conclude that, “If state officials excluded him from ballot eligibility, he would likely be able to sue in state or federal court to challenge state officials’ determination of ineligibility. And if he was not excluded by state officials, voters (at least in some states) might possess the legal right to challenge his eligibility.”
They continue: “Given the magnitude of the question and its consequences, it is not difficult to imagine such an important case making its way quickly to the U.S. Supreme Court.”
The disqualification clause was never used after the January 6 insurrection, and it is a safe bet that despite the certainty expressed by Baude and Paulsen, it will not be used today either and Trump will win the GOP nomination handily and go on to face off against the presumptive Democratic candidate, Joe Biden.
