August 9, 2023
While some on the right portray accountability for the Jan. 6 Capitol riot as just another partisan dispute, two prominent conservative legal scholars have made the case that the Constitution disqualifies former President Trump from public office.
Last week, law professors William Baude of the University of Chicago and Michael Stokes Paulsen of the University of St. Thomas — both members of the conservative Federalist Society — argued in a law review article that Trump is already constitutionally forbidden from serving in public office because of Section Three of the 14th Amendment.
This section, also known as the Disqualification Clause, bars from office any government officer who takes an oath to defend the Constitution and then engages in or aids an insurrection against the United States. Only a two-thirds majority of both houses of Congress can act to remove such disability.
It should not come as a surprise that Trump meets this standard. All three branches of the government have identified the attack on the Capitol as an insurrection, with multiple federal judges, bipartisan majorities in the House and Senate, as well as the bipartisan Jan. 6 House select committee, citing Trump as its central cause.
As Baude and Paulsen note, “Section Three requires no prior criminal-law conviction, for treason or any other defined crime, as a prerequisite for its disqualification to apply.” Trump’s indictment by special counsel Jack Smith for election-related crimes only further bolsters the case for his constitutional disqualification.
Those federal criminal charges include conspiracy to obstruct an official proceeding, obstruction of and attempt to obstruct an official proceeding, and conspiracy against rights by attempting to “oppress, threaten or intimidate” people in their free exercise and enjoyment of their right to vote.
Although Trump’s role in fomenting the attack on the Capitol has been well documented, Baude and Paulsen argue that the “full legal consequences” of Section Three “have not been appreciated or enforced.” As they explain, the Disqualification Clause is “an enforceable part of the Constitution, not limited to the Civil War, and not effectively repealed by nineteenth century amnesty legislation.”The provision is also “self-executing … without the need for additional action by Congress.” As the professors note, Section Three “can and should be enforced by every official, state or federal, who judges qualifications.”
Last September, three New Mexico residents represented by my organization, Citizens for Responsibility and Ethics in Washington, won the first case in more than 150 years removing an elected official from office based on participation in an insurrection. The court ruled that then-New Mexico County Commissioner Couy Griffin had violated Section Three of the 14th Amendment by recruiting men for battle to join Trump’s “wild” effort to overturn the election Jan. 6, normalized violence and breached police barriers as part of the weaponized mob that allowed others to overwhelm law enforcement and storm the Capitol. Griffin’s removal marked the first case at the federal or state level concluding that what occurred Jan. 6 was an insurrection.
In Griffin’s case, the court found that disqualifying officials under Section Three of the 14th Amendment does not conflict with the First Amendment right to protest. It also rebuffed attempts by Griffin to conflate Jan. 6 with Black Lives Matter protests.
In their article, Baude and Paulsen explain that “to the extent of any conflict with prior constitutional rules, Section Three repeals, supersedes, or simply satisfies them,” including “the free speech principles of the First Amendment.”
Most importantly, the authors conclude that Section Three covers a “broad range of conduct against the authority of the constitutional order” and “a broad range of former offices, including the presidency.” They state explicitly that Section Three “disqualifies former President Donald Trump, and potentially many others, because of their participation in the attempted overthrow of the 2020 presidential election.”
Every president, regardless of party, takes an oath to preserve and defend the Constitution of the United States. Enforcing the Disqualification Clause against an official who violated that oath is an act of patriotism, not partisanship. As Baude and Paulsen correctly state, “Officials must enforce the Constitution because it is law … Section Three has legal force already.”
The Disqualification Clause has already been used successfully to promote accountability for the insurrection, and, in the coming months, it will be used again to prevent Trump and others from serving in public office.
Donald K. Sherman is executive vice president and chief counsel at Citizens for Responsibility and Ethics in Washington.
“Most importantly, the authors conclude that Section Three covers a “broad range of conduct against the authority of the constitutional order” and “a broad range of former offices, including the presidency.” They state explicitly that Section Three “disqualifies former President Donald Trump, and potentially many others, because of their participation in the attempted overthrow of the 2020 presidential election.”
So, why is the orange one still a presidential candidate for President of the United States?
Ignoring or breaking the established rules of our coveted Constitution does NOT make America great again. It’s just another step towards the kind of government that Trump loves and respects so much … that of Vlad Putin’s … the vile criminal dictator of mafia land.
It’s a positive development for Ukraine.
But even if it succeeds, as it should do, Ukraine would not be out of the woods.
There could be a Ramaswamy-DeSantis ticket that would seek to hoover up the votes of the trumputler faction.
Good that the initiative comes from the conservative Federalist Society.
It goes to show that Trump is no conservative. He’s something entirely different.
Most would just call him an asshole.
This is less likely to happen. The trumpet is the greatest danger to Ukraine. Both of the other twits are less dangerous, even if put together.
It’s curious there hasn’t been much play in this topic in the US. I would have thought a couple state election officials would have have tested this in the courts. Nothing so far.
Maybe they’re just too cowardly to get it on?
I don’t know. I would have thought the trump haters would have been on board. I did some research on it and the constitution seems clear. What’s interesting, the 14th amendment doesn’t necessitate an indictment or conviction. Even the Federalist society members stated that. It’s just kinda weird.
So we have a couple more that have bought the “insurrection” nonsense. January 6, 2021 was not and insurrection. It is labeled such by the extreme left in the US because the outcome is convenient for them. That two members of the Federalist Society would say that, simply shows that that group is not as conservative as they want people to think.
It’s actually just one more data point on that group. They have done and said many other things that have shown their label is a lie.
I’m not a conspiracy creep Sir OhEngineer. I’m only repeating what my research indicated. The fact that three branches of government have called Jan 6 an insurrection gives credence to the insurrection claim. I’m not saying it was or it wasn’t, only that is what history is going to say. Congress said it was an insurrection, the senate said it was an insurrection and finally the federal courts have convicted individuals under the insurrection laws. Again I’m not saying this right or wrong only the results of my research.
Personally I don’t give a shit how Trump is stopped, only that he’s stopped. I’ve made my position clear about Trump and his idiotic friends many times in this site, so it should be no surprise.
You have the prefect right to voice your opinion, Sir Cap. I fully agree with you about the trumpet, et al.
I also see it as an insurrection, even if it was a small one.
The Capitol attack was an insurrection by any meaningful definition — a concerted, violent attempt to block Congress from performing its constitutionally mandated job of counting electoral votes.
What makes you believe that it wasn’t an insurrection?
To me, it sure looked like an insurrection, albeit a small one.
So, ohengineer, no explanation for your ludicrous claim that the January 6 insurrection was not an insurrection?