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Two prominent conservative law professors write article arguing Donald Trump ineligible to run for US President under 14th amendment
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- Title
- Conservative Case Emerges to Disqualify Trump for Role on Jan. 6
- Published
- Aug 10 2023
- Word count
- 1064 words
The professors — William Baude of the University of Chicago and Michael Stokes Paulsen of the University of St. Thomas —(Federalist Society members and originalist scholars) studied the question for more than a year and detailed their findings in a long article to be published next year in The University of Pennsylvania Law Review.
The article concluded that essentially all of that evidence pointed in the same direction: “toward a broad understanding of what constitutes insurrection and rebellion and a remarkably, almost extraordinarily, broad understanding of what types of conduct constitute engaging in, assisting, or giving aid or comfort to such movements.”
It added, “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 3 of the 14th Amendment.”
Here is the actual article https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4532751
If election officials rely on this and keep his name off the ballot it could be serious.
Edit They are setting up a theoretical basis for moves to be made. Whether anyone acts is a different question.
I think you're a whole lot more optimistic about that happening than I am.
I think one of the bigger lessons of the past 10 or so years of politics is that when you get to the upper levels of government, things like rules and logical consistency don't actually matter.
It does however matter when other powerful people have knives out for you and they will use all tools to hand including laws and rules. I've been wondering for a long time when Trump would finally reach that point. He voices mortal insults and makes enemies as easily as he breathes.
Edit, however I wonder whether it matters that Trump has not been formally charged with insurection. If I understand the article correctly, these scholars claim that assisting rebellion is enough to disqualify.
It's actually a big deal when state officials have the capacity to keep candidates off a ballot if they have legitimate grounds to do so.
Obviously write ins exist but Trump is already facing a steep uphill battle to win another election. Not being on the ballot in some states isn't going to help that.
Of course there's no expectation that Arkansas would take him off the ballot but it could reasonably happen elsewhere.
Is it that steep? Last NYT-Sienna poll had Biden/Trump even at 43% each.
Perhaps it's naiveté on my part, but I'm someone who thought Trump had a very realistic chance in 2016 despite the polls... I don't see any way Trump wins in 2024, outside of Biden being hit with an extreme scandal the week of the election or dropping dead. Voters are more motivated than ever and Trump has been hit hard even if none of his court cases resolve by late 2024.
I think that the coming Republican primaries will be incredibly bloody and I see the Republicans tearing in two - not literally, the party will never split, but there are many who really do not want Trump anymore because they think he's a loser (can't disagree there). Trump will win the nomination but there'll be a lot of bad blood and probably a lot of votes going elsewhere. If Trump somehow loses the primary he'll still run and the Republicans are done before election season even begins; if Trump wins and DeSantis runs @anyway (which I doubt but it's possible) they're similarly screwed.
But I'm picturing the "best case scenario" where Trump wins the nomination, DeSantis bows out, Kanye West (yes, sadly he's still a factor) bows out... and even then I don't see it happening.
Frankly if other third parties decide to run they are going to be the place to look. A lot of Americans seem to be ready to accept third party candidates. There are a surprising number of people indicating they'd vote for Kanye but I do think they come from both sides of the fence even with all of his recent... yeah.
In 2016 the polls were off because people didn't want to admit that they planned to vote for Trump. Something similar could happen in reverse.
My personal theory is that Trump's various scandals have each peeled off a certain subset of swing voters who can't live with his conduct related to something specifically important to them. For some it might be Sharpiegate and seeing how profoundly stupid he is. For some it might be January 6. For some, especially people in the military or people in trusted government roles it might be the classified documents. For some it might be that he is indicted with crimes. For some it might be that he has turned against the FBI. And more I haven't thought of yet. Swing voters win national elections. His solid cult members are not enough to carry the country, even with the electoral college and gerrymandered districts. But this only leads to a win if democrats also fight like hell for every vote in 2024.
I don't buy that this is true. This would be the case if everyone voted, but as it is only something like 60% of eligible voters actually vote in the general election. When you combine this with the fact that the country has become hyperpartisan (and thus there are very few swing voters), the real way to win elections isn't to flip swing voters, but to motivate your people to come out to vote more than the other side motivates theirs.
I do think it's likely that the GOP will have more nonvoters than the dems if Trump is the nominee. I think it's unlikely Trump would win the general. I'm concerned that DeSantis could win the general, but it's not clear that he could win the primary.
Roughly a third of voters in 2020 were registered Democrats, another third Republicans, and the final third independent (source). There are some subtleties in these numbers (eg, "independent" doesn't necessarily mean "swing voter" -- they might still be partisan), but all else being equal (again, big assumption!), appealing to the middle is generally a better strategy numerically than appealing to your party's extremes. A swing voter, unlike a partisan voter, essentially counts twice: by securing their vote, you remove a voter from the opposition's pool of potential supporters.
Of course, in the real world you generally do a mix of all these things: appeal to your most ardent supports, appeal to the middle, and try to depress turnout for the opposing candidate by pointing out their character (or criminal) flaws.
It's complicated and I am not an expert to refute you, but I think the name swing voters reflects a real phenomenon that influences outcomes. Agree to disagree. With the caveat that turnout of loyal voters for your side is also very important.
Trump was explicitly not indicted for insurrection.
If we allow presidential nominees to be banned from running for crimes, without any conviction or due process, I think it's a slippery slope.
That is a weak argument, I doubt it would hold much water with the current Supreme Court.
You may be misunderstanding the argument being made.
They are not saying the constitution disqualifies him because he committed crimes.
They are saying because he performed behaviors described in article 3, he is automatically disqualified from holding office. In the same way that there is an age requirement of 35 years old. It therefore follows that whatever offices verify age and other qualifications must in the same way determine that a candidate is free from these disqualifications.
Edit: the authors deal with due process. Holding office is not life, liberty, or property they say, which is all the due process clause protects.
There is no legislation spelling out how exactly one might enforce the disqualification clause in the 14th Amendment.
Therefore this would go to the Supreme Court. The Supreme Court would rule in favor of Trump.
Even if the Secretaries of State found some sneaky way to remove Trump for what is "obvious" to them, it still goes to the Supreme Court.
Also, you are ignoring the slippery slope... Whatever is used against Trump, will be used against future Democrats. If there isn't a due process in place, Republicans will hallucinate all sorts of insurrections.
At least according to these authors, you are wrong there. There is some process in place by which candidates are placed on ballots, and presumably that process is a result of statute and regulation. And it probably includes some kind of generic language like “every candidate must meet the qualifications set forth in the US” constitution ….”
Whatever office decides who gets placed on the ballot and how is beholden here.
Mind you, I am not defending the authors here. I just want you to be sure you are objecting to reality, not what you think is on the table here. I am a lawyer (although not a constitutional scholar).
In fact Republicans have already used similar techniques- remember the whole birth certificate thing?
At a minimum, we are looking at something interesting here.
Yes, but my main point is that it goes to the Supreme Court, and here the authors agree with me.
My argument is then that either the Supreme Court
a. Over rules the process by which candidates are placed on the ballot. In which case Trump is fine. Which is where my uneducated money would be.
b. Rules in favor of the secretary of states, or whoever decided to drop Trump. In which case good luck ever getting a democratic presidential nominee on any ballot going forwards.
They’re probably going to do this anyway. Trying to tip-toe to prevent underhanded tactics from the GOP never works.
I try to avoid speculating about future historical events since being blindsided by events like the fall of the Berlin Wall. Watching the court has some things in common with watching sports.
Having said that, the only Supreme Court justice I think your statement is likely true about is Justice Thomas. Especially if prominent Federalist Society legal scholars are advocating for this theory as is reported in these articles. The justices have their own idiosyncratic motives and are most definitely not part of the MAGA base.
These two are not the only ones making this argument. r/law surfaced this article by Stephen Calabresi. https://reason.com/volokh/2023/08/10/trump-is-disqualified-from-being-on-any-election-ballots/
https://en.wikipedia.org/wiki/Steven_Calabresi
Former Dean of Yale Law School. Clerked for Scalia. Current Co Chair of the Federalist Society.
I'm just here in the peanut gallery, but my take is that the elite want their party back. It will be interesting to see what they do next.
The part you’re missing is that he wasn’t convicted only because he and other corrupt republicans obstructed justice multiple times. That’s the slippery slope.
He was put on the Republican ticket when they knew he had criminal ties to foreign governments.
And he was elected after violating campaign finance rules and receiving aid from foreign powers.
And he was impeached once for abuse of power and obstruction of justice, but not convicted by the senate partly because he obstructed the process.
And he was impeached a second time for (essentially) sedition but not convicted because his “judges” in the senate were co conspirators.
In the end, if he wasn’t indicted he wasn’t indicted. You can’t just be judge jury and executioner as an election official and decide for yourself what crimes candidates are and aren’t guilty of.
This right here was grounds for a constitutional crisis, and the possible (probably) censure of those republicans who didn't just "Vote along party lines" but actively refused to participate in their constitutional duties.
And now, some of those same republicans are trying to push articles of impeachment for Biden, because of some conspiracy about his son.
All in all, it's pretty disgusting. And even more so that there are 10s of millions of voters that seem to agree with the philosophy that these behaviors are acceptable.
Quite a feel-good story. I get it's trying to push public opinion but people are also pretty entrenched on this topic, two lawyers' opinions
from an organization that has dedicated itself to acting against Trump* won't move the needle.The issue is that we need proof and due process to enforce it. This is happening, slowly, but anything else is hearsay, undocumented, legally unverified claims, and legally unscrutinized evidence. Trump can run as long as he isn't convicted. I'm also plenty scared he'll win if he can run.
*Wrong conservative group, I confused them with the Lincoln Project.
The Federalist Society has dedicated itself against Trump? Really? When?
Oops, gonna make some edits, I confused them for the Lincoln Project.
I feel like the title from the post two items up in my feed, "How to deal with a really annoying person and their gang of goons?" could have been used here too.