https://www.lawdork.com/p/trump-is-almost-certainly-disqualified Trump is almost certainly disqualified from being president. Will it matter? Will Baude and Michael Stokes Paulsen hyper-launched an essential discussion, but the question is what, if anything, happens now. Understandably, people are ready for Donald Trump not to be a part of public life. What better time than August, in the midst of multiple Jan. 6-related indictments, to push out an argument that Trump is already disqualified from being president again. Enter Will Baude (an early blogger like Law Dork here) and Michael Stokes Paulsen, two conservative law professors, who did just that in their forthcoming new law review article, “The Sweep and Force of Section Three.“ What is Section Three? There was some discussion of it in the aftermath of Jan. 6, but then it took a back seat to prosecutions. (I’ve been having some really interesting discussions this week about that, which I hope to return to soon, but, for now, Section 3.) Section 3 of the Fourteenth 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. In their article — which comes in at 126 pages, so there is plenty to dig your teeth into if you are so inclined — the pair details the history, purpose, scope and current status of the provision. Eventually, beginning at page 117, they reach what they call “[t]he most politically explosive” and yet also “most straightforward“ application of Section 3 to the efforts to overturn the 2020 election and most specifically to the actions of January 6: The bottom line is that Donald Trump both “engaged in” “insurrection or rebellion” and gave “aid or comfort” to others engaging in such conduct, within the original meaning of those terms as employed in Section Three of the Fourteenth Amendment. 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. All who are committed to the Constitution should take note and say so. This is not, they argue, something that just sits on the internet or in the law review: “Officials—administrators, courts, legislators—whose responsibilities call upon them to apply Section Three properly and lawfully may, indeed must, take action within their powers to preclude Trump from holding future office.” This is also not something that they argue lightly — and it’s certainly not something that would take effect in any simple way. Any such effort would be painted as anti-democratic by Trump and his supporters — a concern that Michael McConnell has already warned about in response to this discussion. Additionally, at some point (if not multiple points), any such path to disqualify Trump from the ballot would end up in court. Those lawsuits, in turn, could run up against the Supreme Court’s decision this past term in Moore v. Harper and the limits the court suggested exist on state court action relating to federal elections. What’s to be done with that? ...read the whole thing...
