Donald Trump is now barred from the Presidency or any other government office – even if not yet convicted of any crime, two law professors conclude in a new constitutional and historical study. What is already known about his role in trying to stay in power is enough, the paper argues.
The analysis, to be published next year in the University of Pennsylvania Law Review, is by William Baude of the University of Chicago and Michael Stokes Paulsen of the University of St. Thomas – both respected professors with established reputations as serious constitutional scholars with deep conservative views. The issue has been explored by other scholars, but not as sweepingly as in this study.
It should be noted that the article, now available online, is not focused on Trump. The authors do not reach the question of Trump’s ineligibility until page 111 of a 126-page paper. That is not an afterthought, of course, but it is not the main thrust of their study of the history and meaning of Section 3 of the Constitution’s Fourteenth Amendment. Their aim, they write, is to “set forth the full sweep and force” of that section.
Ratified as part of the Constitution in 1868, in the aftermath of the Civil War, Section 3 bars any former U.S. government official from serving in any office – federal or state – if that person has taken part in “insurrection or rebellion” after previously taking the oath to support the Constitution. Clearly aimed at the time at those who supported the Confederacy, the provision has never been repealed and the professors contend that it retains its full power to this day.
Their paper makes four main arguments: first, the provision remains enforceable and is not limited in time to the Civil War era; second, it is self-executing and thus does not need action by Congress; third, it does not conflict with any other provision in the Constitution, and, fourth, it applies to a broad range of conduct “against the authority of the constitutional order.”
One of the most important points the study seeks to make is that Section 3 does not add a new qualification to be elected president, beyond the three that the Constitution specifies: be a U.S. citizen, be at least 35 years old, and have lived in the U.S. for at least 14 years. That claim is crucial because the Supreme Court has ruled, in a famous 1969 decision, that it is unconstitutional to try to add any new qualifications for election to federal offices (unless that were done by a formal constitutional amendment).
Who has the power to enforce Section 3? This, too, is important because, if that provision could only be enforced by an act of Congress, it would be difficult to impossible to get a majority in Congress – especially in today’s polarized political environment – to enforce Section 3 against a candidate of either major party.
The study suggests that Section 3 must be carried out by “anybody who possesses legal authority (under relevant state or federal law) to decide whether somebody is eligible for office.” It says that this might include state election officials, state or federal courts, other state officials or legislators, or the President, Vice President, the Presidential Cabinet, or Congress.
The Vice President and the Cabinet could use the power by invoking the 25th Amendment to oust any elected President who violated Section 3, according to the study; Congress could carry it out in judging the eligibility of those elected to Congress, and, presumably, the President and the Senate could enforce it in their roles in appointing federal officers.
However, this suggestion may make enforcement quite uncertain, because it would confront any such official with deciding whether a given candidate had engaged in “insurrection or rebellion.” The Supreme Court has never ruled in a definitive way on what those words mean, under the Constitution. (The paper points out that a recent challenge under Section 3 to the controversial Georgia House member, Republican Rep. Marjorie Taylor Greene, failed because state officials ruled there was no proof that she actually took any action to carry out the violent invasion of the Capitol on January 6, 2021.)
The professors, though, do not perceive that to be an open question if enforcing officials were now to rule on the eligibility for office of former President Donald Trump. He is already a candidate for a new term in the White House and, for now, is considered to be leading the race for the Republican nomination next year.
His eligibility, the paper argues, is “the urgent question of the day.” The professors’ conclusions do not depend upon the prospect of any convictions of Trump in any of the pending federal or state criminal cases. They rely instead upon the already developed and publicly known facts surrounding the aftermath of the 2020 presidential election, including the invasion of the Capitol.
The professors conclude: “Taken as a whole, these actions represented an effort to prevent the lawful, regular, termination of President Trump’s term of office in accordance with the Constitution. They were an attempt to unlawfully overturn or thwart the lawful outcome of a presidential election and to install, instead, the loser as president. They constituted a serious attempt to overturn the American constitutional order.”
Over the following ten pages, the study analyzes the details supporting the professors’ final conclusion that enough has already been developed in the public record to indicate that Trump is barred, by Section 3, from seeking any office again in his lifetime – including the Presidency.
“If the public record is accurate, the case is not even close,” they argue. “He is no longer eligible to the office of Presidency, or any other state or federal office covered by the Constitution. All who are committed to the Constitution should take note and say so.”
The paper goes on to contend that “many others” may be in violation of Section 3, so they, too, are barred from public office. That list, it says, includes government lawyers, executive branch officials, state officeholders, and members of Congress. “It is past time to start the reckoning,” the study asserts.