Is Trump legally qualified to be a presidential candidate?

[JimFoxvog]

An interesting article just published in The Atlantic by two respected constitutional scholars argues that the 14th Amendment is self-executing and that therefore Donald Trump is not eligible to run for office.

The Constitution Prohibits Trump From Ever Being President Again
The only question is whether American citizens today can uphold that commitment.

By J. Michael Luttig and Laurence H. Tribe

As students of the United States Constitution for many decades—one of us as a U.S. Court of Appeals judge, the other as a professor of constitutional law, and both as constitutional advocates, scholars, and practitioners—we long ago came to the conclusion that the Fourteenth Amendment, the amendment ratified in 1868 that represents our nation’s second founding and a new birth of freedom, contains within it a protection against the dissolution of the republic by a treasonous president.

This protection, embodied in the amendment’s often-overlooked Section 3, automatically excludes from future office and position of power in the United States government—and also from any equivalent office and position of power in the sovereign states and their subdivisions—any person who has taken an oath to support and defend our Constitution and thereafter rebels against that sacred charter, either through overt insurrection or by giving aid or comfort to the Constitution’s enemies.

The historically unprecedented federal and state indictments of former President Donald Trump have prompted many to ask whether his conviction pursuant to any or all of these indictments would be either necessary or sufficient to deny him the office of the presidency in 2024.

Having thought long and deeply about the text, history, and purpose of the Fourteenth Amendment’s disqualification clause for much of our professional careers, both of us concluded some years ago that, in fact, a conviction would be beside the point. The disqualification clause operates independently of any such criminal proceedings and, indeed, also independently of impeachment proceedings and of congressional legislation. The clause was designed to operate directly and immediately upon those who betray their oaths to the Constitution, whether by taking up arms to overturn our government or by waging war on our government by attempting to overturn a presidential election through a bloodless coup.
...
J. Michael Luttig is a former federal judge on the U.S. Court of Appeals for the Fourth Circuit.
Laurence H. Tribe is the Carl M. Loeb University Professor of Constitutional Law Emeritus at Harvard University.
https://www.theatlantic.com/ideas/archi ... cy/675048/

[Josh]

It would be up to Congress to decide this, but yes, they could vote to impeach and convict and remove him from office.

The judiciary does not have jurisdiction over who can be President.

[Ken]

It would be up to Congress to decide this, but yes, they could vote to impeach and convict and remove him from office.

The judiciary does not have jurisdiction over who can be President.

The Judiciary is the branch of government that does interpret the Constitution including the 14th Amendment.

Various interested parties could sue in Federal court to have Trump removed from the ballot in various states (or all states) and the Supreme Court could rule to that effect.

Do I think that is what is going to happen? No. But it theoretically could happen. The Supreme Court rules on election disputes all of the time, most notably Bush v. Gore when the Supreme Court did, indeed, decide who was going to be president.

Or, for example, the Secretaries of State in Michigan, Wisconsin, Arizona, and Pennsylvania, who are all Democrats or were appointed by Democrats in the case of Pennsylvania could determine that Trump is ineligible to be on the ballot and remove his name. Or state courts could order them to do so. That would pretty much end the election for Trump, especially if other more Democratic states followed. He would have no path to an electoral college victory even if he swept every single Republican-run state in the country.

[JimFoxvog]

It would be up to Congress to decide this, but yes, they could vote to impeach and convict and remove him from office.

According to these scholars, the Constitution is self-enacting here. Congress has the power to remove the restriction, not apply it. If this legal theory is correct, then it is up to states' Secretaries of State to not allow the name of an insurrectionist on the ballot.

[barnhart]

I think the 14th amendment was for Confederates, not real estate moguls from Queens.

[steve-in-kville]

Yes. Trump should be president now.

[Ken]

I think the 14th amendment was for Confederates, not real estate moguls from Queens.

No, actually it wasn't. All the confederates were pardoned prior to the passage of the 14th Amendment. So the 14th Amendment was written for future insurrectionists, not past ones.

On May 26, 1865 President Johnson issued amnesty and pardon to all former confederates.
https://ldhi.library.cofc.edu/exhibits/ ... cument_two provided that they declared loyalty to the United States. And many returned to public life and public office at that time. The 14th Amendment was not ratified until July 1868 over three years later. So it was never actually applied to confederates, thousands of whom held public office after the war.

[Pelerin]

Ho boy. That is quite the mental gymnastics to get to that conclusion.

First you have to get Trump for insurrection (so that’s why everybody started using that specific word). Hmm, well he doesn’t appear to have been trying to have been trying to secede and start his own country. Did he organize a military force of some sort? No, there weren’t even really guns or any shooting involved in the Capitol riot (with one exception). So we have insurrection down to a riot. So let me just set that bar all the way down here and see if we can hop over it.

Now then it seems you don’t actually have to participate in the riot yourself—Trump was at home at the time. So we’ve got to get him for inciting the riot. Did Trump incite the January 6 riot? Maybe. Turns out that’s a question the law and judicial system are equipped to answer. And inciting a riot is one of the things Trump has rather notably not been charged with, probably because laws about inciting a riot are pretty narrow (for good reason).

So then individual state officials can unilaterally remove the most popular opposition candidate from the ballot on a basis where the law itself fears to tread. Cool. Cool, cool, cool.

Among the gymnastics to reach this conclusion they conveniently elide the fact that the amendment specifically disqualifies insurrectionists from being Senators, Representatives, or Presidential electors but rather glaringly omits to disqualify them from being President. We’ll just, uh, limbo on under and completely ignore that.

The whole article is just a wish-fulfillment fantasy for anti-Trumpers. I can’t say I was too surprised when I scrolled back up to read the byline and saw Lawrence Tribe. He’s one of the many hacks who keep showing up in my Twitter feed whose game is to tell anti-Trump liberals exactly what they want to hear. What other sort of person would look at Trump’s unique I-win-no-matter-what constitutional theories and think to themselves, “Yes, more of this please!”

Law itself aside, do they really think it’s a good idea to just disqualify the guy who is probably the most personally popular politician in the US today? That’s literally exactly what actually happens in banana republics. If they were to go through with it there’s no way that Joe Biden could ever be a legitimate president. Are they even under any actual illusion that they’re not just making an end run around democracy to get rid of a popular guy they’re afraid they can’t beat?

But finally and above all, this article is actually probably the best defense of the January 6 rioters that could have been written. The rioters believed, “They don’t care what the voters actually voted for, they’ll never let Trump be re-elected.” And now this article says, “Yeah, that’s true.”

[temporal1]

Yes. Trump should be president now.

All things considered, his second term should have been a cake walk.

[barnhart]

I think the 14th amendment was for Confederates, not real estate moguls from Queens.

No, actually it wasn't. All the confederates were pardoned prior to the passage of the 14th Amendment. So the 14th Amendment was written for future insurrectionists, not past ones.

On May 26, 1865 President Johnson issued amnesty and pardon to all former confederates.
https://ldhi.library.cofc.edu/exhibits/ ... cument_two provided that they declared loyalty to the United States. And many returned to public life and public office at that time. The 14th Amendment was not ratified until July 1868 over three years later. So it was never actually applied to confederates, thousands of whom held public office after the war.

Interesting. Are you sure it wasn't to sideline all the Confederates who refused to swear allegiance the the union or otherwise go through the process.