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Two conservative legal scholars have made a persuasive case that Donald Trump is barred from again running for and serving as president — because he led an insurrection against the United States. The Constitution, specifically Section 3 of the 14th Amendment, prohibits those who engaged in insurrections from serving as president.
This is not a new argument, but this time it comes from an unexpected source – scholars who are members of the Federalist Society, the conservative group that has led an effort to make the Supreme Court more sympathetic to its interpretation of the Constitution. The article, written by William Baude of the University of Chicago and Michael Stokes Paulsen of the University of St. Thomas, is scheduled for official publication by the University of Pennsylvania Law Review next year.
While we don’t expect that the article will have any impact on Trump’s candidacy, it should be another wake up call to Republicans who have feared supporting a candidate other than Trump. The lengthy and well-documented article should give them another reason to back a more reasonable, less tainted candidate for president.
Before they get to the meat of the legal matter, Baude and Paulsen offer a quick reiteration of the events of and immediately preceding Jan. 6, 2021. It is worth a quick review.
“The core events are familiar to all — the dishonest attempts to set aside valid state election results with false claims of voter fraud; the attempted subversion of the constitutional processes for States’ selection of electors for President and Vice President; the efforts to have the Vice President unconstitutionally claim a power to refuse to count electoral votes certified and submitted by several States; the efforts of Members of Congress to assert a similar power to reject votes lawfully cast votes by electors; the fomenting and immediate incitement of a mob to attempt to forcibly prevent Congress’s and the Vice President’s counting of such lawfully cast votes — all in an attempt to prevent the defeated incumbent President, Donald Trump, from losing power in accordance with the Constitution,” the duo wrote.
“This was undoubtedly a serious assault on the American constitutional order. Not since the Civil War has there been so serious a threat to the foundations of the American constitutional republic. It takes little imagination to describe the efforts to maintain Trump in office, notwithstanding his defeat, as an attempted political coup d’etat,” they added. “These actions culminated in the incitement and execution of a violent uprising at the Capitol on January 6, 2021 — an ‘insurrection’ aimed at preventing Congress and the incumbent Vice President from performing their constitutional responsibilities to count the votes for President and Vice President in the 2020 election.”
These events, and Trump’s involvement in them, are also at the center of a federal indictment of Trump that was announced earlier this month, and an indictment of Trump in Georgia this week for meddling with the state’s 2020 election results. The Georgia indictment, which came late Monday, is perhaps the most sweeping, involving 18 co-conspirators and 13 charges against Trump. It is the fourth time the former president has been indicted this year.
These legal proceedings are beyond the scope of Baude’s and Paulson’s analysis, which focused on the requirements of the 14th Amendment. Part of the amendment forbids those who engaged in insurrection or rebellion, or aided those who did, from holding most elected offices.
“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 Three of the Fourteenth Amendment. If the public record is accurate, the case is not even close,” they wrote.
“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.”
Their conclusion is worth repeating: Based on their assessment, Trump is no longer eligible to be president. Those who have sworn an oath to uphold the Constitution, and those who say they follow the Constitution, should say so. And, we’d add, do something about it, such as by publicly supporting other candidates who qualify for election.
