A new legal paper authored by William Baude and Michael Paulsen – two noted US legal academics – advances the theory that the United States Constitution bars Donald Trump from standing as a candidate for US President owing to Trump’s part in the 6 January 2021 attack on the US Capitol. Specifically, the authors quote and interpret Section 3 of the 14th Amendment to the US Constitution which forbids a person from holding public office if they have “engaged in insurrection or rebellion against [the United States], or given aid or comfort to the enemies thereof”.
Could this be the end for Trump’s presidential ambitions? Let’s take a look.
A Civil War safeguard that may apply to Trump
The 14th Amendment to the US Constitution was ratified in 1868, three years after the US Civil War. The language in Section Three – pertaining to banning anyone from public office who has ever tried to overthrow the government of the US – was directed at Confederate soldiers and officers in the aftermath of their defeat by the Unionists in the Civil War. US lawmakers after the Civil War did not want Confederate leaders to be able to gain power and potentially restart the Civil War.
Baude and Paulsen are not the only ones to suggest that the language of the Fourteenth Amendment, Section Three could apply to Trump. Writing in The Atlantic, former US Appeals Court judge J Michael Luttig and Harvard Emeritus Professor Laurence Tribe advance similar arguments. This piece is notable for the breadth of political thinking it encompasses: Luttig is a highly conservative figure, whereas Tribe is considered more left-leaning. Steven Calabresi, professor of law at Northwestern University and co-founder of the conservative Federalist Society has penned a concurring article.
The argument for barring Trump
Baude and Paulsen observe in their paper that Section Three is still valid US law. It is not limited to the time of the Civil War and nor has it been repealed by subsequent 19th Century amnesty laws. They argue that the Section is “self-executing”: it does not require additional action by Congress or the US courts and does not conflict with other US Constitutional principles such as the right to freedom of speech and the right to due process (respecting all legal rights of an accused person).
The essence of their argument is that Trump’s attempts to overturn the 2020 US presidential election, as charged in both federal and state cases in the US, meet the requirement of Section Three’s language concerning “rebellion [against the US]”. Baude and Paulsen note that Trump had sworn an oath to protect the US Constitution (as part of his swearing in ceremony in January 2017 as 45th president of the US) and that his incitement of the violence of 6 January constitutes an ‘insurrection’ within the meaning of Section Three.
Calabresi argues that Trump exhorting his supporters to “fight like hell” in the build-up to the events of 6 January and then failing to intervene to stop the violence (he reportedly watched the events on television for several hours) constitutes “giving aid or comfort” as per Section Three’s plain language.
The consensus that Trump is barred by the language of Section Three extends to a wide range of experts from across the US political spectrum. Since US elections are organised by the individual states, the individual Secretaries of State could lawfully decide to remove Trump’s name from the ballot paper.
Aside from the question of insurrection as per Section Three, the other constitutional requirements for becoming US President are being at least 35 years old, a resident of the US for 14 years and a natural-born citizen of the United States. Given Trump’s actions in challenging Barack Obama’s citizenship since 2008 and his willingness to question Ted Cruz’s eligibility to be President on birth and citizenship grounds, any attempt by him to dismiss Section Three constitutional challenges to his own eligibility would be decidedly hypocritical.
But there is also a body of counter opinion on Trump’s eligibility under Section Three…
The counter arguments
Michael McConnell is a former US appeals court judge and professor of law at Stanford University. Taking a different position from Luttig, Tribe et al, he has written that he does not believe that 6 January meets the requirements for an insurrection, observing that none of the hundreds of rioters arrested in the aftermath of the 6 January events were charged with insurrection and that Trump himself is “one step removed” from these people.
In addition, while he does not hold Trump in much regard, McConnell suggests that disqualifying Trump immediately under the Fourteenth Amendment “could empower partisans to seek disqualification every time a politician supports or speaks in support of the objectives of a political riot.” Disqualifying Trump under Section Three could therefore ‘open the floodgates’, with attempting to disqualify political opponents on legal grounds becoming an ongoing feature of the already highly polarised US political climate.
Another argument brought to bear is that disqualifying Trump might even be dangerously anti-democratic. The view of Edward Foley, former Ohio Solicitor General and professor of law at Ohio State University, is that many Americans might be angry at having their preferred candidate withdrawn from the ballot paper should Trump be disqualified. But, as Foley also notes, Barack Obama would be an appealing Democratic candidate for president in 2024 – except that Obama is barred from standing again and this is near universally accepted by the US public.
Luttig has addressed these points, noting that it is the actions that give rise to the disqualification which are undemocratic rather than the disqualification itself.
Recent legal history of Section Three
Attempts were made by activists to apply Section Three during the 2022 US midterm elections, with mixed results.
Efforts to remove controversial Georgia Republican Representative Marjorie Taylor-Greene from the ballot in Georgia were unsuccessful when a lower court ruled that the challengers “failed to prove their case by a preponderance of the evidence.” Similar cases against Arizona Republicans Paul Gosar and Andy Biggs were also dismissed. However an appeals court did rule against North Carolina Republican Madison Cawthorn, stating that insurrectionists could be disqualified from holding public office. The question was, however, moot because Cawthorn lost his primary election and so never made it to the final ballot paper.
A local commissioner in New Mexico, Couy Griffin, was actually immediately removed from office after a judge ruled that he was indeed barred by Section Three of the Fourteenth Amendment. Griffin had, however, been separately convicted of entering restricted grounds around the US Capitol on January 6 and aiding the insurrection.
Invoking Section Three
Writing a Bloomberg legal opinion, Harvard law professor Noah Feldman summarises his concerns with Baude and Paulsen’s arguments. Feldman observes that it would be a very daring US official who took the Baude-Paulsen contention at face value and removed Trump from the ballot paper with no further action. He suggests that any official considering invoking Section Three would, out of an abundance of natural caution if nothing else, seek judicial guidance before proceeding.
There are some difficult questions to be addressed. Was the attack on the US Capitol an ‘insurrection’? If so, did Trump lead or otherwise play a significant role in it? It is customary in modern times for state officials to defer to the judiciary and ultimately the US Supreme Court particularly given the mixed legal precedent. These questions are ones of fact, and absent unusual circumstances, legal questions of fact are a matter for a jury.
Establishing insurrection: a high-level matter
Quite obviously the possibility of preventing Trump’s candidacy has caused some interest amongst US political actors opposed to him.
Activist group Free Speech For People has begun a campaign to lobby US Secretaries of State to disqualify Trump. Should any such state official take up the option, they would of course be sued immediately by Trump and/or the Republican Party. Given the significance of such action, it would very likely end up quickly before the US Supreme Court (SCOTUS).
Former US District Attorney Harry Litman has considered the matter and believes SCOTUS would be reluctant to rule on a question of pure fact (i.e. did Trump commit insurrection within the meaning of Section Three of the Fourteenth Amendment?) Litman believes the Court would require Congress to decide the question of fact.
Discussing the matter with liberal commentator Brian Tyler Cohen, former Washington DC federal prosecutor and George Washington University criminal law lecturer Glenn Kirschner felt differently. His opinion is that lower courts, starting with state courts (as the states are afforded exclusive competency to organise elections under the US Constitution), will be forced to hold evidentiary hearings to decide the question of fact.
Given the way questions of federal law and the US Constitution are invoked, the issue will still find its way to SCOTUS, albeit with the question of fact that concerns Litman resolved by this stage.
Who would sue to establish ‘insurrection’?
In light of Trump’s near-total losses in litigating his claims of electoral fraud, Kirschner believes courts will lean towards ruling that Trump did commit insurrection, or at least is liable for it in a civil case based on the preponderance of the evidence. (The difficulty of proving to the ‘beyond reasonable doubt’ standard of a criminal trial that Trump committed insurrection is partly why the Washington DC federal case against Trump does not charge him with insurrection.)
To establish insurrection, the problem might be finding a party who has standing to sue Trump: the obvious candidates are his Republican rivals for the presidential nomination. But as Professor Jeffrey Sonnenfeld observes in his discussion of the constitutional questions, they are yet to show the requisite political character.
In late August 2023 Florida attorney Lawrence Caplan filed a civil lawsuit against Trump directly, arguing that Trump is ineligible to be president as a consequence of Section Three of the Fourteenth Amendment. Caplan claims standing on the grounds of being a (concerned) US voter. It remains to be seen if the US courts accept this and allow the case to proceed.
A similar challenge has been filed in New Hampshire whilst in Michigan, the Secretary of State (who would be responsible for placing Trump’s name on the ballot paper) has been challenged to declare Trump ineligible, on Section Three grounds.
Best option: leave it to the voters?
The question of whether Trump can be barred from running for US President under Section Three of the Fourteenth Amendment to the United States Constitution is not straightforward. Opinions differ amongst legal professionals and there are some not insignificant hurdles to overcome.
It could well be that the best option is still to hope that US voters reject Trump at the ballot box again.