Conservative Law Profs Resurrect Obscure Constitutional Clause That May Be Used to Ban Trump from the Presidency

Conservative Law Profs Resurrect Obscure Constitutional Clause That May Be Used to Ban Trump from the Presidency

An obscure section of the 14th Amendment is being discussed as a potential method to prohibit former President Donald Trump from pursuing future federal office. This consideration arises from deliberations on how to address his involvement in the January 6 incident at the U.S. Capitol.

Section 3 of the 14th Amendment, ratified in 1868 post-Civil War, declares that anyone who has sworn an oath to uphold the Constitution, yet later participates in or supports insurrection against it, cannot serve in Congress or any civil or military office. However, Congress can lift this restriction with a two-thirds majority vote in both chambers.

Historically, this clause aimed to prevent ex-Confederate officers and officials from resuming public office unless Congress allowed it. This provision has rarely been applied in the past century and a half and never against a sitting or former president.

Nevertheless, this clause is gaining new traction as a way to prevent Trump from running for the presidency. Special Counsel Jack Smith’s indictment of Donald Trump for “conspiracy” to overturn the results of the 2020 election has given the 14th amendment argument renewed interest.

Now, a pair of conservative originalist law professors are arguing that “the case is not even close” that Donald Trump should be banned from holding public office ever again.

“Conservative, originalist law professors Will Baude and Michael Stokes Paulsen have a new paper out arguing that Section 3 of the 14th Amendment disqualifies Donald Trump from holding public office and that ‘the case is not even close’,” Slate’s Michael Joseph Stearn notes.

“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,” the authors write.

“If the public record is accurate, the case is not even close,” the authors add. “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.”

The abstract of the paper lays out the case that former President Donald Trump attempted to foment an “insurrection” against the United States and therefore should be stripped of the right to become president.

“Section Three of the Fourteenth Amendment forbids holding office by former office holders who then participate in insurrection or rebellion, Baude and Paulsen write. “Because of a range of misperceptions and mistaken assumptions, Section Three’s full legal consequences have not been appreciated or enforced. This article corrects those mistakes by setting forth the full sweep and force of Section Three.”

Then, they lay out a four-point argument.

“First, Section Three remains an enforceable part of the Constitution, not limited to the Civil War, and not effectively repealed by nineteenth century amnesty legislation,” they argue. “Second, Section Three is self-executing, operating as an immediate disqualification from office, without the need for additional action by Congress. It can and should be enforced by every official, state or federal, who judges qualifications. Third, to the extent of any conflict with prior constitutional rules, Section Three repeals, supersedes, or simply satisfies them. This includes the rules against bills of attainder or ex post facto laws, the Due Process Clause, and even the free speech principles of the First Amendment. Fourth, Section Three covers a broad range of conduct against the authority of the constitutional order, including many instances of indirect participation or support as ‘aid or comfort’.”

“It covers a broad range of former offices, including the Presidency. And in particular, it disqualifies former President Donald Trump, and potentially many others, because of their participation in the attempted overthrow of the 2020 presidential election,” the authors conclude.

Perhaps the most remarkable aspect of the argument is its implication that Donald Trump is not entitled to constitutional protections if he is deemed to have participated in or to have provided “aid and comfort” to an “insurrection.” The authors claim that Donald Trump did just that.

“The events surrounding efforts to overturn the result of the presidential election of 2020 have sparked renewed scholarly, judicial, and political interest in Section Three of the Fourteenth Amendment,” the authors state. “The core events are familiar to all—the dishonest attempts to set aside valid state election results with false claims of voter fraud; the attempted subversion of the constitutional processes for States’ selection of electors for President and Vice President; the efforts to have the Vice President unconstitutionally claim a power to refuse to count electoral votes certified and submitted by several States; the efforts of Members of Congress to assert a similar power to reject votes lawfully cast votes by electors; the fomenting and immediate incitement of a mob to attempt to forcibly prevent Congress’s and the Vice President’s counting of such lawfully cast votes—all in an attempt to prevent the defeated incumbent President, Donald Trump, from losing power in accordance with the Constitution.”

“This was undoubtedly a serious assault on the American constitutional order,” the authors argue. “Not since the Civil War has there been so serious a threat to the foundations of the American constitutional republic. It takes little imagination to describe the efforts to maintain Trump in office, notwithstanding his defeat, as an attempted political coup d’etat.”

However, it takes even less imagination to conclude that Donald Trump had nothing to do with inciting a riot on January 6 due to his speech being constitutionally protected and common political fare.

The argument that Donald Trump in any way condoned or advocated violence on January 6 is nothing less than a Big Lie. It is easily exposed as such for a number of reasons.

Trump’s speech did not finish before orchestrated violence first took place at the Capitol. The president explicitly told supporters to “peacefully and patriotically make their voices heard.” Donald Trump later stated, “I’m asking for everyone at the US Capitol to remain peaceful. No violence!”

According to the Trump Twitter Archive, this message was posted at 3:13 pm local time. It followed a tweet at 2:38 pm which read “Stay peaceful!” — a mere NINE MINUTES after numerous protesters entered the Capitol complex.

“I am asking for everyone at the U.S. Capitol to remain peaceful. No violence! Remember, WE are the Party of Law & Order – respect the Law and our great men and women in Blue. Thank you!” Twitter permanently banned Trump’s account due to concerns of “further incitement of violence” in the aftermath of the January 6, 2021 upheaval, based on an entirely subjective reaction against his constitutionally protected right to claim the election was ‘rigged.’ This was election interference of the highest order.

In a video message the following day, Trump called for a peaceful resolution to the election dispute and acknowledged that he would no longer be president after January 20, 2021.

“I would like to begin by addressing the heinous attack on the United States Capitol… America is and must always be a nation of law and order. The demonstrators who infiltrated the capitol have defiled the seat of American democracy. To those who engaged in the acts of violence and destruction, you do not represent our country, and to those who broke the law, you will pay.”

“Now, Congress has certified the results,” he added. “A new administration will be inaugurated on January 20th.”

There is absolutely no fair-minded way to read that Donald Trump advocated violence on January 6, let alone engaged in a seditious conspiracy to back a rabble of unarmed protesters going into the capitol to somehow overturn an election and secure him the presidency against the might of the U.S. military and its security forces.

Trump’s enemies are not being stopped by the absurdity of their distorted narrative and its ludicrous misrepresentation of history. They are fully committed to their desperate bid to lock up the former president, regardless of their argument’s inability stand up to reasoned scrutiny. Now, legal scholars are even making patently absurd arguments in law journals to back up the left’s surreal narrative.

Congressional scholar Jonathan Turley further lays out why Trump’s opponents cannot legally make the “insurrection” charge stick.

“I had a Democratic congressman on the other day who was trying to argue about the 14th Amendment and that that alone, you know, which shows you can’t hold office if they’ve engaged in insurrection or a rebellion, and bending over backward saying he caused an insurrection and a rebellion,” Neil Cavuto said. “The reason why that is important to a lot of Democrats is that that would disqualify him from being president of the United States. That’s the leap they’re taking.”

“What do you think of that train of thought and that leap?” he asked. “That is not the connection that is going on here in this case.”

“No. It’s really approaching the urban legend status,” Turley replied. “Because he’s not charged with incitement. He’s not charged with insurrection. He’s not charged with seditious conspiracy. He’s not charged with all of those things the Democrats impeached him on the second time.”

“So they’re really bigfooting the Constitution here,” he added. “It’s not there.”

“But the question is what is here?” he continued. “I have to tell you, this is thin soup in my view. They have a colossal Constitutional problem that they will have to overcome from the outset. They have to establish all of these lynchpins, that he not only believed the truth of the matter, that he understood he was lying, but then he played a criminal role in getting these other individuals to take the steps mentioned in the indictment. That is a very difficult case to prove.”

That isn’t stopping Trump’s opponents from salivating about the former president being locked up in prison.

“Don’t buy this new BS that Trump can’t be imprisoned, if convicted, because of the Secret Service/safety issue,” MSNBC’s globalist mouthpiece argued. “Plenty of countries around the world – from Israel to South Korea to Brazil – have found ways to imprison former leaders…”

But the difference is that in the United States we don’t emulate banana republics and lock up former presidents for having the wrong politics. Donald Trump was the duly elected president and he had the right to object to the extraordinary conditions leading up to the 2020 election.

The Department of Justice’s politically timed indictments are about one thing and one thing only: Criminalizing dissent from the left’s radical agenda.

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OPINION: This article contains commentary which reflects the author’s opinion.

Source: Becker News Rephrased By: InfoArmed

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