In The Atlantic over the weekend, former federal judge J. Michael Luttig and leftwing professor of constitutional law at Harvard, Laurence H. Tribe, laid out the framework for how Democrats may attempt to block Donald Trump from being on the ballot in 2024, even if he wins the Republican nomination.
Based on the 14th Amendment’s prohibition of those “engaged in insurrection or rebellion” against the Constitution from holding an official office again, the pair writes in The Atlantic that the two indictments related to the 2020 election brought against former President Trump should lead to his disqualification, regardless of whether or not he’s found guilty.
The clause was originally drafted to prevent former Confederates from running for office after the end of the Civil War.
They write, “Having thought long and deeply about the text, history, and purpose of the Fourteenth Amendment’s disqualification clause for much of our professional careers, both of us concluded some years ago that, in fact, a conviction would be beside the point. The disqualification clause operates independently of any such criminal proceedings and, indeed, also independently of impeachment proceedings and of congressional legislation. The clause was designed to operate directly and immediately upon those who betray their oaths to the Constitution, whether by taking up arms to overturn our government or by waging war on our government by attempting to overturn a presidential election through a bloodless coup.
The former president’s efforts to overturn the 2020 presidential election, and the resulting attack on the U.S. Capitol, place him squarely within the ambit of the disqualification clause, and he is therefore ineligible to serve as president ever again. The most pressing constitutional question facing our country at this moment, then, is whether we will abide by this clear command of the Fourteenth Amendment’s disqualification clause.
Tribe has become of the more outspoken and paranoid critics of Donald Trump, often sharing conspiracy theories related to the former president that have embarrassed those on his side of the ideological spectrum.
Buzzfeed noted, for example, that “some of the country’s leading liberal lights — respected figures including elected officials, prominent legal scholars, members of the media, and celebrities — are themselves sharing wild allegations about the Trump administration from unreliable sources.
Perhaps no one embodies this trend so well as Laurence Tribe. Tribe is one of the country’s foremost constitutional lawyers, the Carl M. Loeb university professor at Harvard Law School. He has argued dozens of cases in front of the Supreme Court. He’s a major figure in American public life, and in recent months Tribe has devoted much of his activity on Twitter to outraged extrapolation about the Trump administration. Often, these take the form of ‘big if true’ tweets that cite unconfirmed reports about Trump’s possible misdeeds and are essentially conjecture.”
Even fellow Ivy League professors have criticized his delusions. Brendan Nyhan, a professor of political science at Dartmouth College wrote that Tribe “bizarrely has become an important vector of misinformation and conspiracy theories on Twitter.”
Although Tribe has certainly fallen off his rocker, the argument that Trump is not eligible for the presidency because of the Capitol riots has not only come from the liberals hoping to give Joe Biden an easy second term. Members of the conservative Federalist Society recently published a paper making a similar argument.
“In our view, on 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,” law professors William Baude and Michael Stokes Paulsen explained in the University of Pennsylvania Law Review. “The case for disqualification is strong.”
“Trump’s deliberate inaction renders his January 6 speech much more incriminating in hindsight, because it makes it even less plausible (if it was ever plausible) that the crowd’s reaction was all a big mistake or misunderstanding,” they continue.
“If the public record is accurate, the case is not even close. He is no longer eligible to the office of Presidency,” they concluded.
CNN reported that the law professors didn’t hold their fire just to Trump, either. They argued “current and former officeholders who took part in supporting or planning the efforts to overturn the election for Trump should also be “stringently scrutinized” under the Constitution should they seek bids for future public office.
Baude and Paulsen also noted that Trump’s ‘overall course of conduct disqualifies him’ from eligibility as a candidate, regardless of whether he is convicted of criminal charges related to the 2020 election – which he now faces in Georgia state court and in federal court – or whether he is held liable in a major civil conspiracy lawsuit related to the attack.”
Allen Dershowitz recently took apart the fantasy that Trump can be removed from the ballot, something that was already tried in 2020 in California and ruled unconstitutional.
Groups are already preparing for a fight. “The American public should expect to see a series of challenges filed in state after state,” Ron Fein, legal director of one such group, Free Speech for People told The Los Angeles Times.
The newspaper said that the challenges will likely be launched toward the end of this year or early next year. That’s when deadlines hit for candidates to file for the ballot.
“People are not anticipating how pervasive these will be,” said Notre Dame law professor Derek Muller, an election law expert.
“Win or lose, however, the issue could severely disrupt a primary season that is already fraught with potential for strife and violence — another example of how Trump’s flouting of the law is stressing the country’s legal and political systems,” The Times concluded.