WASHINGTON — While Donald Trump wants to take his case for returning to the White House to some 200 million American voters, he may first need to win over five — a majority on the U.S. Supreme Court.
As the 2024 presidential primaries near, the former president, already under four criminal indictments, is likely to face yet another legal challenge that appears headed for the courts: whether the Constitution’s ban on insurrectionists seeking office applies to his Jan. 6, 2021, coup attempt.
“The question of Donald Trump’s disqualification under the 14th Amendment will be decided by the Supreme Court,” predicted Michael Luttig, a renowned conservative former federal appellate judge who was once himself considered for the high court by President George W. Bush.
The post-Civil War 14th Amendment bans anyone who took an oath to uphold the Constitution but who subsequently “engaged in insurrection or rebellion against” or gave “aid or comfort to the enemies” of the Constitution from seeking any federal or state office.
And while the liberal-leaning group Free Speech for People has been demanding that elections officials in all 50 states and the District of Columbia honor that prohibition by keeping Trump off primary and general election ballots, those efforts were recently boosted by unlikely allies. Two law professors, both members of the conservative Federalist Society, released a lengthy law review article concluding that Trump is absolutely disqualified from running for office because of his Jan. 6 actions.
“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,” wrote the University of Chicago Law School’s William Baude and the University of St. Thomas School of Law’s Michael Paulsen. “All who are committed to the Constitution should take note and say so.”
Trump campaign officials did not respond to multiple HuffPost queries on the matter.
One former Trump White House lawyer, Ty Cobb, said that while he is not convinced the effort to keep Trump off the ballot will succeed, he found the analysis persuasive. “It does seem very compelling,” he said.
Ironically, despite 91 felony counts against him in four separate criminal indictments, including two related to his efforts to remain in office despite losing reelection, Trump could continue seeking the presidency even if he is convicted and imprisoned. Only a Supreme Court ruling disqualifying him on 14th Amendment grounds can keep his name off the ballot.
And because the high court keeps its own schedule and is not bound by electoral deadlines, there exists the possibility that Trump could lock down enough delegates to win the Republican nomination — or even be officially nominated — only to be subsequently removed from the presidential ballot.
“He knew these indictments were coming, and he ran for president anyway, knowing full well he was taking the Republican Party down with him. It’s the most selfish thing I’ve ever seen in my life.”
– Oscar Brock, Republican National Committee member from Tennessee
That prospect has some Republicans who have been vocally anti-Trump for years worried about the potential fallout.
“It would break the country,” said David Kochel, a longtime GOP consultant in Iowa. “If you removed Trump from the ballot with a legal trick like this, you’d be inviting violence that would put Jan. 6 to shame.”
Another anti-Trump Republican, former New Hampshire state party chair Fergus Cullen, agreed that Trump’s demise has to come at the ballot box for many Republicans to accept its legitimacy. “I’m afraid the only way for this vampire to be killed in a way voters will accept is if God or the voters drive the stake in themselves,” he said.
Other top Republicans, though, say the blame lies with one person, and one person only: Donald Trump.
“He knew these indictments were coming, and he ran for president anyway, knowing full well he was taking the Republican Party down with him,” said Oscar Brock, a Republican National Committee member from Tennessee. “It’s the most selfish thing I’ve ever seen in my life.”
Free Speech for People started laying the groundwork for keeping Trump off the 2024 ballot back in June 2021, more than a year before Trump officially declared his candidacy. In five-page letters sent to elections officials in every state and the District of Columbia, legal director Ron Fein wrote that the 14th Amendment’s restriction was every bit as binding as the other constitutional requirements, such as that candidates be at least 35 years old and natural-born U.S. citizens.
“A constitutionally ineligible insurrectionist is no more eligible for candidacy than would be a five-year-old or a previous two-term president, and his filing would be obviously defective,” those letters stated.
Two years later, secretaries of state and elections boards are getting more detailed, 20-page packets telling them that they have a constitutional duty to bar Trump, complete with draft orders declaring Trump ineligible. “We therefore write to request that you exercise your authority and obligation to exclude Mr. Trump from the ballot,” the new letters state.
Fein said he hopes secretaries of state enforce the 14th Amendment prohibition and strike Trump from the ballot, but that his group is prepared to sue elections officials if they fail to do so. “We’ve assembled top-notch legal teams and we’re ready to go,” he said.
Fein and other anti-Trump activists received a timely and weighty gift last month with the release of Baude and Paulsen’s “The Sweep and Force of Section Three.” In it, they conclude that elections officials and judges have not just the ability, but the affirmative obligation to ban Trump from running again.
The 126-page analysis provides the legal and historical underpinnings for the case against Trump, offering a step-by-step guide for coming court battles.
Regarding the counterargument that the amendment’s drafters were only concerned with Confederate officials and army officers regaining positions of authority and did not mean for the prohibition to apply going forward, Baude and Paulsen provide 10 pages of detailed rebuttal.
“They didn’t say we’re going to ban former Confederate officers or persons who violated their oaths in ‘the late war.’ And I think that language was in earlier drafts: ‘in the late war,’” Paulsen said in a recent podcast. “They decided to adopt a general rule, a prospective rule, that not just Civil War traitors, but anybody who betrayed their oaths to the Constitution and held an office that required such an oath would be prohibited, and it would be prospective.”
Regarding a favorite claim by Trump supporters that Jan. 6 was not really an “insurrection,” the pair point out that Congress itself, by an overwhelming and bipartisan vote, described it as such in a resolution giving the congressional gold medal to four Capitol Police officers who defended the building that day.
And on the crucial point of whether Trump “engaged in” or provided “aid and comfort” to those actively participating in the assault on the Capitol, Paulsen and Baude point out that it was Trump himself who assembled his followers in Washington, D.C., on that day, who told them to march on the Capitol to pressure lawmakers and his own vice president into awarding him a second term, and who that afternoon inflamed his mob further by attacking Mike Pence for not doing as he’d demanded.
“It is unquestionably fair to say that Trump ‘engaged in’ the January 6 insurrection through both his actions and his inaction,” the pair wrote.
Waiting On The High Court
While Baude and Paulsen’s article has not yet been published by the University of Pennsylvania Law Review, it has already entered the political discourse around the Republican primary race.
Former Arkansas Gov. Asa Hutchinson brought it up at the first GOP debate in Milwaukee last week. “This is something that could disqualify him, under our rules, and under the Constitution,” he said, adding to reporters later that “Trump is putting our voters in a very difficult position, and we need to think about this seriously.”
At a recent candidates’ forum in Atlanta, former New Jersey Gov. Chris Christie told reporters that while he respected Luttig’s views on the matter, he was not concerned about how it played out. “The voters of our party are going to need to determine this question,” he said.
The other candidates running for the 2024 nomination, though, have continued their strategy of not criticizing Trump for his Jan. 6 actions or the legal consequences arising from them, and have largely remained silent on the 14th Amendment issue, as well.
Officials in charge of administering elections across the country, however, have taken notice. “The Attorney General’s Office is now carefully reviewing the legal issues involved,” wrote New Hampshire Secretary of State David Scanlan, who will oversee the state’s first-in-the-country Republican primary, in a joint statement with state Attorney General John Formella.
New Mexico Secretary of State Maggie Toulouse Oliver’s office said in a statement that Trump’s 14th Amendment standing will be investigated, but that no decision will be announced until the candidate filing deadline in February. “If Donald Trump files in New Mexico to run for president we will make a determination at that time,” a spokesperson said.
Which leaves the question of when, precisely, a court case might wind up before the U.S. Supreme Court. If any elections official removes Trump from a state ballot, that decision would have to move up through that state’s courts before it could then be appealed to the nation’s high court. A challenge seeking to remove Trump’s name from a ballot would have an even longer route.
Luttig, for one, believes that the importance of the question will force the justices to move quickly. “Sooner rather than later,” he said. “I believe it must, and will, be decided before the primaries.”
Norm Eisen, a former White House lawyer under President Barack Obama who later worked on the House’s first impeachment of Trump, is less optimistic about a quick answer.
“The Supreme Court moves on a timetable of its own determination,” he said. “If they don’t move quickly, the issue might not be resolved by the primaries, and may not be decided by the convention.”
And a late ruling that disqualified Trump, RNC member Brock said, would put the party in an enormous bind if he is, in fact, the nominee — particularly since Trump is not likely to be cooperative about “releasing” his delegates so that they can vote for a candidate who is actually eligible to run.
He said the scenario is nothing the RNC ever planned for. “We never built the tools,” he said. “Because no one ever envisioned a situation when a likely convicted felon would be the Republican nominee for president.”