The best way to remove Trump from the ballot under the 14th amendment
To make it almost unassailable, one constitutional scholar argues, at least one state legislature should expressly give power to elected officials to disqualify Trump--and do it now.
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Is Donald Trump already ineligible to run for president in 2024, no matter what happens with regard to any of the 91 counts against him in four indictments?
Delightfully, there’s been so much discussion about it! Surely that alone is riling Trump, which is always a good thing. The talk really ramped up in recent weeks after two conservative Federalist Society constitutional scholars’ pending law review article—concluding that Section 3 of the 14th Amendment of the Constitution disqualifies Trump—went public.
Section 3 of the 14th Amendment states:
No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
Former judge Michael J. Luttig, a respected conservative jurist who testified before the January 6th committee, and the esteemed legal scholar Professor Lawrence Tribe also agree that Trump is ineligible under the 14th Amendment.
And there has been some movement in the states. In New Hampshire, an effort is already underway within the GOP itself—with Republicans feuding—as the secretary of state is seeking legal advice from the state attorney general on removing Trump from the ballot. A Florida attorney has filed suit in that state, seeking to disqualify Trump. For months, two civil rights organizations have been pressuring secretaries of state in several states—Nevada, California, Oregon, Colorado, and Georgia—to disqualify Trump from the ballot.
All it will take is one state to remove Trump for the issue to be challenged in court and get to the U.S. Supreme Court, which would have to rule that Trump is disqualified in all states—or in no states. It’s high stakes, as no one knows what the court will do, and there are definitely scholars and political strategists who have their doubts. So what is the most ironclad way to go about it and get the Supreme Court aboard?
Professor Edward Foley, Ebersold Chair in Constitutional Law at Ohio State University, former Ohio solicitor general, and contributing columnist for the Washington Post, believes the strongest case would come from a state where the state legislature gave express powers to the secretary of state or other election officials to remove a candidate under the 14th amendment. And he says that it’s thus imperative that a state legislature pass that law now and a governor sign it well before the 2024 presidential election.
Foley points out that the Supreme Court in the recent Moore v. Harper decision—in which the high court thankfully in large part ruled against the dangerous "independent legislature theory," the idea that state legislatures, not state courts, decide elections—left too much wiggle room. Others have agreed that the Moore decision wasn’t a complete win for those who want to protect elections, as it left too much open.
Foley wrote in the Washington Post that the Moore decision signaled that "if a state statute has not already authorized administrative officers to seek disqualification of presidential candidates," then the Court might view an attempt by a state official to do so as a "usurpation of the state legislature’s prerogative to determine the ‘manner’ of conducting presidential elections."
So again, he believes a blue state that has complete control of the legislature and the governor’s mansion—say, Michigan, California, or New York—should pass a law right now, well before the 2024 election. Professor Foley joined me on my SiriusXM program last week, and you can listen in here to the fascinating and important discussion.
A transcript is provided below, slightly edited for space and clarity.
Michelangelo Signorile: We've been talking about this for a for a while and discussing it with those who've written on it from a more left political perspective or progressive, looking at the Constitution. And then we had two Federalist Society constitutional scholars who you talk about as well in the piece that you wrote, who are publishing an article in a journal, making the argument from obviously a very conservative point of view. Talk a little bit about their piece.
Edward Foley: As you mentioned, these two scholars, who have a high reputation in the law school world in general, but are known to be on the conservative side of the perspective on things, are using the methodology of what's called original meaning of the Constitution to interpret it according to how the framers or authors of the Constitution understood it at the time it was adopted.
And so they're applying that approach to this part of the 14th Amendment. The 14th Amendment was adopted during Reconstruction after the Civil War, has lots of important provisions in it, like the equal protection clause and the due process clause. But it also has its Section 3, which is this disqualification provision aimed to disqualify people who joined the Confederacy during the Civil War, betraying their oaths to the country because they had served in the federal government and then betrayed their oath to the Constitution.
And so this provision disqualified them from ever serving in government again at the the end of the Civil War, as part of Reconstruction. But what this law review article does with these two authors, from this original meaning perspective, they said, looking at the text, it's not just about the Civil War, it's about any insurrection or rebellion. And so that has meaning and they said that the [framers] meant it to apply broadly and in perpetuity, if you will. For as long as we have a Constitution and as long as this provision is in it, it means that if anybody, having taken an oath to uphold the Constitution and served in government, betrays that oath in a way that's engaging in an insurrection, then they can no longer serve in government again.
So they go over it—I think it's about a couple of hundred pages—their law review article, explaining all the original intent behind that language in terms of its drafting during the reconstruction era, after the Civil War. They go into great detail about its initial applications and then explain why the January 6th attack on the Capitol qualifies as an insurrection event. And then Trump's role, because he obviously wasn't one of the people who breached into the Capitol that day, but his fomenting of the riot and the insurrection and then his role, in particular, as commander in chief and as president on January 6th, 2021, he had a constitutional responsibility to to take care that the laws were faithfully executed, including to stop that kind of riot and to stop people from preventing the lawful counting of the electoral votes.
And he did none of that. He tweeted some [comments] that seemed to encourage the folks who were against Mike Pence at the time, as I know you know. And so these authors say that both his actions ahead of the riot and the insurrection and during it constitute engaging in the insurrection for purposes of the original meaning of this provision.
MS: Right. And they certainly responded to what they knew would be the criticism of their argument. And they clearly see it—that Donald Trump did engage in incitement, did engage in fomenting that insurrection.
EF: Yes, I think it's correct to say that from their perspective, they see it as clear. I think at one point they say it's not a close case from their perspective. That's where I would differ with them a little bit, although I'm of the same view that, properly applied, this provision should be understood to disqualify Trump because of his conduct that's on the public record as a result of the January 6th committee hearings and so forth. I think it is more debatable than they characterize it. You know, there are plausible arguments on both sides in particular of whether what Trump did was sufficient to count as engaging for purposes of this provision. Again, I come down on one side of that debate and the same side that they do. But I think I've got to be candid to acknowledge that there are already other people in response to this article who are coming down on the other side of that issue.
MS: And so it would be something that the courts would decide. And ultimately the Supreme Court, which has not ruled on this particular issue and this interpretation of the Constitution, because obviously we haven't been at this place before. And so what you write about in the piece, which I found very informative and fascinating, is that it basically needs to get to the Supreme Court.
And the process to do that would mean that a state would have to move to take Donald Trump off of the ballot, arguing that he's not eligible to be on the ballot. And that sounds easy, but in fact, it means that a state legislature actually has to give the power to an elected official, a statewide elected official, to do that. Thus, it really needs to be a blue state, a state that at least has a legislature that is in control by the Democrats and and an elected official who is a Democrat as well. Talk a little bit about that.
EF: Yes, I think that's right. Unfortunately, it's not so easy. Maybe it should be in our democracy that all the rules for running elections should be pretty straightforward. But unfortunately, our rules for presidential elections in particular are very complicated because of the whole electoral college mechanism. And also, you know, we should—even though it's important to go down this road—we should recognize the momentous nature of it. If you believe in the right of citizens to vote, as I do, and the equality of voting rights, you want to be careful about denying the right of citizens to vote for the candidate of their choice. But we have provisions in the Constitution that do that. In other respects, there may be many Americans today who would like another opportunity to vote for Barack Obama, who think he was a great president and he'd be great again and maybe would prefer to vote for him as the Democratic nominee instead of Joe Biden next time. He's younger than Joe Biden, but he's not eligible because of another part of the Constitution that is much more straightforward. If you have two terms, that's it.
And so there's no factual dispute about that. We're not allowed to vote for Barack Obama for president anymore. The question about whether or not Americans are allowed to vote for Donald Trump if they want to is more complicated because the only basis to disqualify him would be this provision that was in the aftermath of the Civil War. And that does require applying this old text to a new problem, as you said, that we haven't faced.
So the question is, who in American government should make that determination if indeed he's not allowed to be on the ballot?
And one point that I really tried to stress in The Washington Post piece is that it's imperative, I think, to decide this in advance of the November 2024 election, because I think it would be terrible for Congress afterwards in the next January 6th [certification] meeting. This would be January 6th, 2025. If you think, hypothetically, that Trump is on the ballot, perhaps wins the Electoral College narrowly, but the Democrats controlled the House of Representatives, as they may well do. The House is very much in play for 2024. The Senate is very close. I think for Congress to try to disqualify Trump on the grounds of this Section 3 of the 14th Amendment provision would be terrible because that would be taking people's votes away from them after they've cast them.
And I just think that would make the next January 6th even more perilous than the previous one. So I think the time to do this is now, before the Republican convention in July of ’24. And the method, as you say, needs some clarification. I think we're going to see litigation on this issue anyway. There are a couple of interest groups that have announced in effect publicly—there’s news reporting on this—that they're going to try to get election officials to do this. So this is going to happen one way or the other.
MS: They're pressuring election officials in Nevada, in Georgia, Michigan, places where they hope to have, you know, somebody obviously thinking in the same way. And these are battleground states.
EF: Correct. And so what I tried to contribute was the best method to do this in an orderly way, in a fair way, would be for a state legislature to establish with a new statute exactly how this gets to court. So there's rights to cross examination and due process and so forth. That would then give a finding, you know, one way or the other: Trump is eligible or he's not eligible under this provision, and that would be immediately appealed and would quickly get to the US Supreme Court, which I think is the institution that has to decide this for the entire nation. Because if one state like Nevada does it, you know, he should either be on the ballot in all the states or not all the states. And if the U.S. Supreme Court was to say he is indeed disqualified, the supremacy clause of the Constitution would require other states to follow that. So let's get one state to create a good procedure, a clear procedure, because there's also the possibility that if you don't have this kind of new law, state officials will interpret existing law—it’s not really suitable for this kind of factual issue. I mean, yes, they can tell pretty easily if a candidate is 35 years old or not. That's an eligibility requirement to be president.The issue of citizenship, you know, is pretty straightforward factually, but this one would require a more lengthy trial.
MS: A state official like a secretary of state couldn't do this on his or her own? And the legislature would have to pass a law giving them that power? And then it would obviously be appealed and go through the courts.
EF: Yes and no. The state official, like the secretary of state, absolutely has to have this power from the legislature. No question about that. Under Article 2 of the Constitution. The trickier part is whether any existing law—without a new law—could be interpreted as already granting that power. And that's on a state by state, 50 state basis. And that's also a debatable proposition, I suspect, in some states, given the way they write their rules. There's a more plausible argument that an existing official already has that power. But this is an issue of such importance to the country. I don't think we should leave it in doubt. Right. And it's easy for a legislature to clarify that they want their officials to have this power.
MS: So you say a swing state controlled by Democrats such as Michigan could and should do this, but any single blue state would suffice because even if New York or California did it, it would be challenged. And as you said, if the Supreme Court ruled that he were ineligible, that would be it—ineligible in every every state in all 50 states.
MS: That would be quite a task for the Supreme Court. Going by this Supreme Court's track record, what do you think they might do?
EF: Yeah, I think it could go either way. I think these two [Federalist Society] scholars who have written this new article are very, very respected. One of them clerked, I believe, for Chief Justice John Roberts. Now, that doesn't mean, you know, Chief Justice Roberts is necessarily going to agree with everything he writes. But, you know, independently of that, he's known as a very respected scholar. Both of them are in the conservative legal world. You know, the court today is 6-3 in terms of conservatives to liberals. And, you know, Justice Roberts is the one who’s not often, but sometimes, with the liberals on the four side of 5-4 splits. So it's not a guarantee either way.
But I think this argument would be taken seriously, very seriously. I agree with you. The court would probably be reluctant. I mean, this is a momentous issue and they would, you know, tread carefully, but they are the highest court in the land and they exist for difficult cases. And so I think if a lower court, say the Michigan Supreme Court, for example, disqualified Trump, I think they would feel that it's incumbent upon them to resolve the question.
MS: And you're so right about it needing to be done now because not just looking back at, 2020 and of course, what happened there and what might happen. But also even thinking back to 2000, having the Supreme Court coming in at the very end after voting had happened, and then basically saying, sorry, it ends right here. Obviously, that left a very bad taste and a lot of people's mouths and real division in the country.
EF: Right, Right. I mean, sometimes disputes after the voting are unavoidable. I mean, the Bush versus Gore situation was obviously very difficult and did leave a bad taste in a lot of people's mouths, as you say. But in that context, when you're fighting over 500 or so votes in the swing state of Florida with hanging chads, I think it was going to be a difficult issue, whatever.
And the goal is to try to avoid difficult issues. And with hindsight, we know we should have replaced the kinds of voting machines with hanging chads to avoid the problem in the first place. Right. And sort of what I'm trying to do is, I'm imagining there could be a problem afterwards that can be settled in advance so that we could avoid the worst kind of problems. So I think your reference to Bush versus Gore is correct in that sense.