Supreme Court Has an Originalist Roadmap to Disqualify Trump From the Presidency

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Human Rights and Global Wrongs

“[O]n the basis of the public record, former President Donald J. Trump is constitutionally disqualified from again being President (or holding any other covered office) because of his role in the attempted overthrow of the 2020 election and the events leading to the January 6 attack.”

Those words were written by two prominent conservative legal scholars in a comprehensive 126-page paper that will be published next year in the University of Pennsylvania Law Review. The article is an urgent call to action that provides a roadmap to disqualify Trump from running for or assuming the presidency again.

“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,” Professors William Baude of the University of Chicago and Michael Stokes Paulsen from the University of St. Thomas wrote. “If the public record is accurate, the case is not even close. He is no longer eligible to the office of Presidency, or any other state or federal office covered by the Constitution.”

Baude and Paulsen, both active members of the right-wing Federalist Society, used a conservative “originalist” analysis, looking to the original public meaning of Section 3 when it was first passed, in order to reach their unequivocal conclusion that Trump cannot be president again. Their reasoning should appeal to the originalists on the Supreme Court in the event it reviews this issue.

Section 3 of the 14th Amendment to the United States Constitution, known as the “Disqualification Clause,” prohibits a former federal official who has previously sworn an oath to uphold the constitution and then “engaged in insurrection or rebellion” or then gave “aid or comfort to the enemies” of the U.S., from holding federal office. The disqualification, which does not require a criminal conviction, can only be lifted by a vote of two-thirds of each house of Congress.

The authors rely on the findings of the House of Representatives Select Committee to Investigate the January 6 Attack on the U.S. Capitol. They cite Trump’s deliberate intention to overturn the results of the election by calling it “stolen” and “rigged.”

They also list the “numerous schemes” to effectuate that objective, including:

efforts to alter the vote counts of several states by force, by fraud, or by intended intimidation of state election officials, to pressure or persuade state legislatures and/or courts unlawfully to overturn state election results, to assemble and induce others to submit bogus slates of competing state electors, to persuade or pressure Congress to refuse to count electors’ votes submitted by several states, and finally, to pressure the Vice President unconstitutionally to overturn state election results in his role of presiding over the counting of electors’ votes.

Baude and Paulsen cite Trump’s “incendiary address” to a crowd of his supporters at the White House Ellipse on January 6, urging “the assembled mass of thousands, some of whom Trump knew to be armed, to ‘fight like hell, and if you don’t fight like hell, you’re not going to have a country anymore.’”

The legal scholars also write that as the events and violence unfolded, “Trump maintained silence — and indeed deliberate indifference bordering on tacit encouragement — for what had by that time clearly become a forcible insurrection.” This was “culpable inaction,” Baude and Paulsen note. “[I]t is unquestionably fair to say that Trump ‘engaged in’ the January 6 insurrection through both his actions and his inaction.”

“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,” Baude and Paulsen write. “It takes little imagination to describe the efforts to maintain Trump in office, notwithstanding his defeat, as an attempted political coup d’etat.”

The article says that Section 3’s disqualification requires “no prior judicial decision, and no implementing legislation” to be legally effective. They draw an analogy with the Constitution’s age, citizenship and residency requirements to assume the office of president.

Baude and Paulsen add that Trump can’t claim as defenses freedom of speech under the First Amendment, or 14th Amendment due process which generally requires providing the accused notice and an opportunity to be heard before a deprivation of life, liberty or property. In the event of a conflict with those provisions, Section 3 prevails as it was enacted later in time, they argue.

Trump’s lawyers claim that the First Amendment’s protection of free speech is a defense to the charges against him. But the First Amendment doesn’t protect conspiracy to commit a crime or solicitation of illegal activity. “[E]fforts to steal elections, to pressure state officials to manufacture votes, to pressure other officials (like the Vice President) to violate their constitutional duties in service of a constitutional coup — would all be unprotected by the First Amendment,” the authors write. Further, even if the election was in fact stolen, or Trump truly believed it was stolen, they argue the First Amendment would still not provide a legal defense.

Who Enforces Section 3?

“Section Three’s disqualification rule may and must be followed — applied, honored, obeyed, enforced, carried out — by anyone whose job it is to figure out whether someone is legally qualified to office,” Baude and Paulsen state.

Even though Section 3 is “self-executing” (immediately effective), someone must actually enforce it. People with the power and duty to enforce Section 3 are those with legal authority under relevant state or federal law to decide whether an individual is eligible for office.

Those people may include: state election officials, state executive and administrative officials, state or local election boards, secretaries of state, state governors and legislatures, both houses of Congress, the president and subordinate officers of the executive branch, state and federal judges, and electors for the offices of president and vice president.

Last year, the state of New Mexico used Section 3 to remove Otero County Commissioner Couy Griffin, who had participated in the January 6 insurrection, from office. A group of New Mexico citizens filed a quo warranto lawsuit against Griffin under New Mexico law.

Quo warranto is a legal proceeding that can challenge an individual’s right to hold a public office. After hearing evidence, a New Mexico district court determined Griffin was disqualified under Section 3, ordered his immediate ejection from office, and permanently enjoined him from seeking or holding any other relevant position.

“Donald Trump cannot be president — cannot run for president, cannot become president, cannot hold office — unless two-thirds of Congress decides to grant him amnesty for his conduct on Jan. 6,” Baude said in an interview with The New York Times.

Steven Calabresi, a law professor at Yale and Northwestern and a founder of the Federalist Society, called the article by Baude and Paulsen “a tour de force.” He told The Times, “Trump is ineligible to be on the ballot, and each of the 50 state secretaries of state has an obligation to print ballots without his name on them” and they can be sued for refusing to do so.

Applying the Disqualification Clause to Trump’s actions should not be a partisan issue. The article is particularly significant since it was written by two conservative legal scholars who subscribe to originalism, long a marginalized theory but now ubiquitous among the right-wingers on the Supreme Court. The reasoning of Baude and Paulsen may well resonate with them.

If actions to enforce Section 3 reach the high court, Neil Gorsuch, for one, should reject Trump’s challenges to his disqualification. When he was a circuit court judge in 2012, Gorsuch wrote in Hassan v. Colorado that, “a state’s legitimate interest in protecting the integrity and practical functioning of the political process permits it to exclude from the ballot candidates who are constitutionally prohibited from assuming office.”