By Lance Simmens
The task of choosing a topic for this week’s column was not really as difficult as previous weeks, given the rather astounding spectacle of watching the former president, his chief of staff, and numerous other close confidants being booked on some 41 charges over alleged efforts to overturn the results of the 2020 presidential election. Even more astounding is the fact that this is the fourth indictment of the twice-impeached former president. Some say these are historical, if not hysterical, times that will coincide, if not collide, with the 2024 election. If only there were an escape hatch to spare the nation from increasing concern over violence borne of the most serious nature since the Civil War!
As the nation buckles up for a barnburner of a fight and growing suspicions that a seriously divided populace may erupt in violent confrontations fueled by dis- and misinformation, lies, and a mounting lack of confidence in both our leaders and our democratic institutions, it is neither hyperbole nor fantasy to imagine a rupture in the most successful democratic experiment in human history.
The souls of our founding fathers must truly be breaking at this juncture. However, there is a potentially bright line on the horizon that very well may offer us a lifeline, and it is totally bipartisan and steeped in constitutional foundation. Some of the brightest minds in constitutional construction and legal history are embarking on a theory that there is already an existing self-executing remedy in Section 3 of the 14th Amendment to the Constitution that has been in existence since the end of the Civil War. It reads that no person shall “hold any [state or federal] office” if they’ve previously taken an oath of office and then “engaged in insurrection or rebellion against the US or given aid or comfort to the enemies thereof.”
Conservative legal scholars William Baude and Michael Stokes Paulson have written in a forthcoming law review article that the “January 6, 2021, rebellion disqualifies Trump under the 14th Amendment, arguing the section is still in effect and is ‘ready for use,’ and state officials can bar Trump from the ballot without any additional legislation or court rulings expressly permitting it,” according to an article by Alison Durkee writing in Forbes.
In addition, legal scholars J. Michael Luttig, a conservative, and left-leaning Laurence Tribe have recently written in the Atlantic that “no person who sought to overthrow our Constitution and thereafter declared that it should ‘be terminated’ and that he be immediately returned to the presidency can in good faith take the oath” required of presidents.
Baude and Paulsen also conclude that Section 3 requires no legislation, criminal conviction, or other judicial action in order to effectuate its command. That is, Section 3 is “self-executing.” In their abstract for the University of Pennsylvania Law Review, the authors contend that Section 3 operates “as an immediate disqualification from office, without the need for additional action by Congress. It should be enforced by every official, state or federal, who judges qualifications.”
Tribe, who taught constitutional law at Harvard for nearly five decades, and Luttig, a conservative former judge for the U.S. Court of Appeals, wrote in their Atlantic article they endorsed Baude and Paulsen: “The former president’s efforts to overturn the 2020 presidential election, and the resulting attack on the US Capitol, place him squarely within the ambit of the disqualification clause, and he is therefore ineligible to serve as president ever again.”
The logical decision-makers at the state level on disqualification would be either the secretary of state or a duly appointed state official. The decision would most certainly be challenged, and that challenge would go directly into court — either state or federal — and it would eventually make its way to the Supreme Court of the United States.
Since the background and language of constitutional law are foreign to most, the importance of this piece is to at least explore alternatives that could be important remedies to avoid a Constitutional crisis. In light of the time constraints until the 2024 presidential election and the rather tangled web of four indictments occurring in four different jurisdictions in a condensed period that will certainly see a frantic effort to repel what is projected to be a slew of delaying tactics, we might very well have found a remedy that already exists.
Certainly the stakes for our democracy could not be higher. The issue was recently raised in the Republican Party debate by former Arkansas Gov. Asa Hutchinson, who when questioned about the issue, replied “over a year ago, I said that Donald Trump was morally disqualified from being president again as a result of what happened on Jan. 6. More people are understanding the importance of that, including conservative legal scholars.”
It will be worth following as the debate over disqualification could essentially be the escape valve increasing numbers of Democrats, Republicans, and Independents are yearning for.