A legal theory surrounding the “insurrection clause” of the 14th Amendment is gaining momentum, suggesting that former President Donald Trump may be disqualified from holding public office again due to his alleged involvement in undermining the 2020 election and the January 6th Capitol attack. As Trump eyes a potential 2024 run, this theory could become a significant hurdle for his candidacy.
What is the “Insurrection Clause”?
The “insurrection clause” is a seldom-invoked section of the 14th Amendment, designed to prevent individuals who participated in insurrection or rebellion after taking an oath to defend the Constitution from holding public office. It was initially aimed at barring former Confederate officers from being elected to Congress after the Civil War. The relevant text reads:
“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… 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.”
Who Supports the Theory?
Several constitutional scholars, both conservative and liberal, have endorsed the theory. They argue that Trump’s actions, particularly his efforts to pressure then-Vice President Mike Pence to overturn electoral votes and his incendiary speech on January 6th, meet the standard of “engaging in” insurrection or rebellion. Legal scholars William Baude, Michael Stokes Paulsen, J. Michael Luttig, and Laurence Tribe are among those who support this interpretation.
What’s the Counter-Argument?
Not all legal scholars agree with this interpretation. Critics argue that the recent interpretations of the 14th Amendment embrace overly broad definitions and suggest that the criminal justice system should be the primary mechanism for barring someone from holding office for participating in an insurrection.
How Would the Theory be Enforced?
The theory could be tested through lawsuits. A candidate running against Trump in the Republican primary or the general election could argue that Trump’s presence on the ballot directly harms them, opening a path to court. Interest groups or voters might also file suits to prevent Trump from being on the ballot in specific states.
Alternatively, a state could decide to exclude Trump from the ballot, prompting him to file lawsuits to challenge this exclusion. Currently, no state has taken this step, but discussions among secretaries of state on the issue are ongoing.
The Courts and the Supreme Court
Any serious attempt to bar Trump from the ballot would likely result in multiple appeals, eventually reaching the Supreme Court. The application and interpretation of the 14th Amendment’s “insurrection clause” would become a central point of legal dispute.
Past Cases
While the 14th Amendment’s third section has been infrequently tested in court, it has never been applied against a former president. After the January 6th Capitol attack, legal challenges were filed against Republican Representatives Marjorie Taylor Greene and Madison Cawthorn, alleging their ineligibility under the insurrection clause. The cases had mixed outcomes, with Greene cleared of participation in the insurrection, while Cawthorn’s case was decided against him after he lost his primary election.
The theory surrounding the “insurrection clause” adds an intriguing layer of legal complexity to the potential candidacy of Donald Trump in 2024. The outcome of any legal challenges could significantly impact his political future.
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