Office Hours: Here's the way to stop Trump's presidential bid -- but should we try?
Or would it lead to more division and chaos?
Section 3 of the 14th Amendment to the United States Constitution — known as the “Disqualification Clause” — expressly bars anyone from holding “any office, civil or military, under the United States” who “engaged in insurrection” against the Constitution after previously swearing to uphold it “as an officer of the United States.”
The former guy has made it clear he intends to run for president in 2024. (Trump’s political operation just reported having $122 million in the bank, more than double the cash on hand of the Republican National Committee.)
It would seem that the Disqualification Clause extends to Trump. Consider just the last few days:
On Sunday, Trump virtually admitted his effort to overturn the outcome of the election. “Mike Pence did have the right to change the outcome,” he wrote, “and they now want to take that right away. Unfortunately, he didn't exercise that power, he could have overturned the Election!"
Yesterday Trump released a statement calling for Pence to be investigated for not rejecting electoral votes that went to Biden.
On Monday, it was reported that Trump had prepared two executive orders to enable his loyalists to seize voting machines after the 2020 election-- one authorizing the Pentagon to seize the machines, the other authorizing the Department of Homeland Security to seize them. (The New York Times also reports that, according to people with firsthand knowledge, Trump was directly involved in the plans.)
And, of course, Trump’s attempted coup continues – as he riles up crowds with his Big Lie, urges states to suppress votes, encourages loyalists to run for secretary of state and other pivotal election-related positions in state government, and even hints at more violence if he’s prosecuted.
So how exactly can the Constitution’s Disqualification Clause be used to stop Trump’s rerun for President? A lawsuit filed in January in North Carolina shows the way. A group of registered voters there have invoked the 14th Amendment to disqualify Rep. Madison Cawthorn from running again for a seat in the House in 2022, based on his support for the January 2021 riot at the U.S. Capitol.
True, these North Carolina voters are relying on a provision of North Carolina law that allows them to raise a “reasonable suspicion” that a would-be candidate is legally unqualified for the office he is seeking, and then shifts the burden of proof to the candidate.
But all states require their election authorities to make some sort of evidence-based decision about whether candidates are eligible to run for a particular office — including for President. And all states are bound by the 14th Amendment to the Constitution.
So today’s Office Hours question is: Should we follow the model of the voters in North Carolina and seek to invalidate Trump’s likely candidacy for president, on the basis of the 14th Amendment? Or would a national movement along these lines fuel further division and play into Trump’s hands?
Please share your views. (As usual, I’ll chime in about 10 am PT, 1 pm ET.)
Okay, my two cents (reserving the right to continue to comment through the day!)
I’m with most of you who (1) don’t want Trump near the White House again, and (2) want him and every one of his co-conspirators brought to justice. But I’m not sure the 14th Amendment Section 3 is the way to go to achieve the first objective.
Here’s why: Assume that once Trump announces he’s running for president, he’s confronted with a barrage of petitions to state election authorities claiming that the 14th Amendment’s Section 3 bars him from the White House. Some election authorities will surely disqualify him; others won’t. In states that disqualify him, Trump’s campaign will in all likelihood run a proxy candidate as a stand-in to deprive Biden (or whomever the Democrats nominate) of an Electoral College majority.
What then? On January 6, 2025, Kamala Harris will preside over a Joint Session of Congress to count the votes. But with three candidates in the running (Biden or another Democratic candidate, Trump’s proxy, and Trump himself) she may find that none of them has won a majority of the electoral votes. And what then? The 12th Amendment gives the job of choosing the president to the House, with each state having one vote. And since there are more Republican states than Democratic ones (as measured by their congressional delegations), Trump wins.
But this could be a long, drawn-out process, as Democrats and Republicans first challenge the electoral college votes and then the makeup of the state delegations. What happens to the presidency in the meantime? According to the Presidential Succession Act of 1947, it goes to the Speaker of the House of Representatives. And who’s that likely to be? If Republicans get control of the House in 2022, which at this point seems likely, it will be Kevin McCarthy as Interim President of the United States.
This scenario isn’t as fanciful as it sounds. I’ve spoken to a number of constitutional law scholars who tell me it’s quite likely, if states challenge Trump’s candidacy via Section 3 of the 14th Amendment.
This doesn’t mean Trump will get the GOP nomination. It doesn’t mean he won’t be prosecuted (as you know, cases against him are proceeding in New York and Georgia, and it’s entirely possible Attorney General Garland is building a case against Trump for treason). It simply means that Section 3 of the 14th Amendment may not be the best vehicle for pushing Trump off course for the presidency.
The deeper issue is how to heal the viciously angry divisions in America that Trump has exploited and widened. I don’t know the answer, but I do take some encouragement from recent polls that show his support among self-described Republicans waning.