Trump is leading the pack of candidates to choose a Republican presidential nominee. However, there’s an obscure part of the Constitution that could stop him from ever being on the ballot.
The legal background
After the US Civil War, the US ratified the 14th Amendment to the Constitution. Most people know this Amendment for its guarantee of equal rights to many Americans.
However, at the end of the Amendment is a rarely-seen clause known as Section Three. It states that anyone “engaged in insurrection or rebellion” against the US would be forbidden from holding federal office.
Section Three was used against former members of the Confederacy. Jefferson Davis, the president, and Alexander Stephens, the vice president, both had the clause applied to them.
Those few uses are the exception, however. Aside from them, Section Three has “almost never” been used, explains analyst Nicholas Riccardi.
Trump’s behavior in 2020 and 2021 sparked renewed interest in the clause. He falsely claimed that the 2020 election was fraudulent and had at least some part in the insurrection that rocked the Capitol on January 6, 2021.
After the Jan. 6 insurrection, the House impeached then-President Trump. The charge was “incitement of insurrection.”
The legal case(s)
At least two liberal organizations have launched multiple lawsuits seeking to use Section Three of the 14th Amendment to have Trump removed from the ballot in various states. One such group is called Free Speech For People.
Ron Fein, the legal director of Free Speech For People, argues that the insurrection delayed “the peaceful transfer of power for the first time in our nation’s history, which is further than the Confederates ever got.” His group, he continued, would use successful prior lawsuits against other participants in the insurrection to show that “Trump is the chief insurrectionist.”
The situation right now
On Monday, a five-day hearing for one of these lawsuits against Trump began in Colorado. Another hearing will commence in Minnesota on Thursday. Various others have been filed in additional states.
All roads lead to the Supreme Court
What precisely each judge will decide is yet to be seen. But it’s likely the case will reach the Supreme Court, as any result will probably be appealed by the losing party.
Fate in the hands of a few
What the Supreme Court will make of whatever case reaches them is also up for debate. While the Court is broadly conservative, with three of its members put there by Trump, they show signs of potentially being receptive to the argument against the former president.
It’s not just liberals who support the effort to bar Trump from the ballot. Even members of the Federalist Society, one of the most powerful and influential conservative advocacy groups, have supported the legal strategy.
Opponents point to the ballot
There are opponents to these efforts, however, and not all of them are necessarily Trump fans. Critics argue that attempts to bar Trump from the ballot are anti-Democratic because they take away people’s option to decide whether Trump should be president themselves.
These arguments don’t hold much water. After all, justice is served to criminals through the courts, not a popularity contest.
Trump’s campaign is also fiercely fighting the campaign to bar him from office. But the top elections official in Colorado, Jena Griswold, had harsh words about Trump’s absence from Colorado’s hearing this week. “For someone who just loves to grandstand about the cases against him, his silence, compared to what his testimony would be under oath, is deafening.”
Former federal prosecutor explains how the 14th Amendment “fits Donald J. Trump like a glove”
Former federal prosecutor Shan Wu said he supported blocking Donald Trump by using the 14th Amendment and outlined what should be done to remove the former president from the 2024 ballot.
Trump is facing over 90 charges
The 45th president was indicted in Georgia, DC, Florida, and New York. The last two, in Fulton County, Georgia, and D.C., are dealing with events leading to and escalating on Jan. 6 and Trump’s alleged attempts to overturn his election loss to Joe Biden.
Still, Trump is likely to get the GOP’s nomination
In a fair amount of Republican voters, every indictment comes with a boost in polls, so on average, Trump leads nearly 30 points over Ron DeSantis. Even conservative legal scholars and experts expressed that under 14th Amendment section 3, Trump should not be allowed to run for the presidency.
Another former prosecutor spoke up
Writing for Daily Beast, Wu, a former federal prosecutor who was a counsel to Attorney General Janet Reno in the Clinton administration, expressed that section 3 of the 14th amendment “fits Donald J. Trump like a glove,” Wu added a comment by a political podcaster Allison Gill, who asked if the clause “wasn’t designed for Trump, who was it designed for?”
The “perfect phonecall”
Wu explained, “The plain language of the clause obviously encompasses Trump’s actions to illegally overturn the results of the 2020 presidential election.”
Wu added, “These actions include but are not limited to asking the Georgia Secretary of State to find additional votes for him, conspiring to put forth slates of unelected ‘fake’ electors for the electoral college, and his call for ‘wild’ protests on Jan. 6 that led to the attack on the Capitol.”
Wu stated, “There exist a multitude of ways to enforce the disqualification of Trump.” He wrote, “For starters, secretaries of state could simply decide he cannot be on the ballot. Secondly, citizens and states could challenge his presence on the ballot through the courts.”
An example from New Mexico
Wu added, “There has already been a recent case involving the removal of a Jan. 6 rioter from their position on a New Mexico state commission.”
Trump’s spokesperson dismissed the efforts
In a statement Newsweek published, Trump’s spokesperson wrote, “Joe Biden and the Democrats are scared to death because they see the polls showing President Trump winning in the general election.”
It should be noted that Trump lost elections to Joe Biden, and the Republicans lost the Senate in 2022.
The statement continued
“That’s why they are pursuing this absurd conspiracy theory. The lawyers who are pushing this political attack on President Trump are stretching the law beyond recognition, much like the political prosecutors in New York, Georgia, and D.C. There is no legal basis for this effort except in the minds of those who are pushing it,” the statement added.
Trial first, decision later
Not all legal scholars agree that Trump could be removed from the ballot. Palm Beach County State Attorney Dave Aronberg told Newsweek that the former president “has not been charged with insurrection or seditious conspiracy. I don’t think the 14th Amendment will be used to keep him out of office. It will be up to the voters to do that.”
Fox News contributor Jonathan Turley called the efforts an “urban legend” and argued that the process would fall apart on whether or not Trump’s action constituted “insurrection or rebellion.” It comes as no wonder DOJ wants a speedy trial.
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