The Difficult Legal and Political Questions Surrounding Trump's Disqualification Under Section 3 of the 14th Amendment

Voters in Colorado and Minnesota have filed lawsuits to keep Donald Trump off the ballot in 2024 because he allegedly engaged in conduct that violates Section 3 of the 14th Amendment. Additionally, two teams of two law professors each (all on the right) have written a total of 252 pages on the original meaning of the text of Section 3 and whether that meaning disqualifies Trump. According to Will Baude and Michael Paulsen, the evidence points unmistakably to the conclusion that Trump is already  disqualified under Section 3, though once he is refused eligibility on a ballot he may challenge that finding in court. Josh Blackman and Seth Tillman, however, believe Baude and Paulsen make numerous mistakes on their way to their conclusions and that their article "tells only one side of a complex story." 

Section 3 says the following:

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.

The point of this blog post is not  to referee the many textual, historical, and precedential arguments separating the two articles mentioned above. Frankly, it is too early for that, which is why I agree with Blackman and Tillman that the Baude/Paulsen article should be allowed to percolate before folks uncritically accept their conclusions in the hopes that Trump will be disqualified. Similarly, legal scholars will need more time to digest and evaluate the Blackman/Tillman article.

On the other hand, things are already moving quickly and there are likely to be more lawsuits seeking to take Trump off the ballot in other states. This post identifies what I think are the most important  questions about Section 3 that judges will likely try to answer.  After that, I'll discuss a few of the pressing political questions and dynamics that I think should guide how Americans in 2023-2024 should think about Section 3 as it applies to Donald J. Trump. 

This post provides a general mapping of the issues. I hope to provide suggestions about how to resolve those issues in future work. I am proceeding this way in large part to make the point that America needs to proceed carefully and with reflection, which may also mean somewhat slower on the issue of Trump's disqualification from office than many would like. But "this ain't easy," and do not take anyone seriously who says that it is.

On virtually all of the questions below that they addressed, Blackman and Tillman disagree with Baude and Paulsen. There are a couple of issues I am raising that the four other law professors did not.

1)   Is Section 3 self-executing? The issues here are whether Congress has to pass legislation enforcing Section 3 before it can be applied and/or is a criminal conviction or some sort or judicial finding necessary before Trump is disqualified from holding office?

2)  What is the definition of "insurrection?"

3) What is the definition of "rebellion?"

4)  Who are "enemies" of the United States? Does a state of war have to exist for the enemies clause to apply?

5) Did Trump as a factual matter engage in an insurrection or rebellion and/or did he give "aid and comfort" to "enemies" of the United States?

6) To the extent Trump's speech on January 6 did not rise to the level of incitement and thus was protected speech, can that speech nevertheless be used as evidence that he violated Section 3?

7) To the extent Trump waited for hours before telling his people to disperse and did not call in the National Guard before that, can inaction be considered taking part in a rebellion or insurrection and/or giving aid and comfort to enemies within the meaning of Section 3?

8) Is the President an "Officer" of the United States for purposes of Section 3? 

9) Is a finding by an executive officer, say a secretary state, that Trump engaged in disqualifying acts, judicially reviewable? Since Congress may remove the "disability" of disqualification by 2/3 vote, should the question of whether someone is disqualified be left to the political arena?

10) For all of the above questions, how important is the Civil War context of Section 3, and should original meaning really be where we look for answers to this major political/constitutional issue in 2023-2024.

I have read both articles and my tentative view is that there are plausibly persuasive answers on both sides to many if not all of the questions raised above. As to question 10, however, I do have a clear suggestion. Were it up to me, I would resolve the many difficult issues surrounding Section 3 with eyes directly on today's country and today's problems. Here are a few difficult practical issues that should be answered before Trump is or is not disqualified:

A) How sure do we have to be about legal meanings and issues to disqualify a former President and the frontrunner for the 2024 GOP nomination for president? It is at least arguable that all reasonable doubts should cut against Democrats (or Republicans) using Section 3 in this manner, given the enormous stakes.

B)  If Trump is disqualified, how will that affect American politics? Might it be better to beat Trump at the polls than to disqualify him from running, especially in light of the criminal cases against him? On the other hand, he arguably tried to steal one election and thus may try to steal another one using people the GOP has put into key spots in important state election offices. Is Section 3 a good way to eliminate that risk?

C) How important is it that people are able to vote for their candidate of their choice?

D) How important is it to send a message that what Trump did before, on, and after January 6th is completely unacceptable and similar behavior will result in future disqualifications?

E) If Section 3 is self-executing, does that give too much power to state political officials like secretaries of state to disqualify folks based on contestable definitions of insurrection and rebellion even if there is meaningful judicial review?

No matter how much one detests Trump, and I have detested him since 1989, the removal from the ballot of a former President and current candidate for the presidency is a highly complicated and politically unpredictable step for the country to take. It could well lead to violence and, even if successful, Trump may be gone but his disqualification might cause more Trumpism by making him a martyr. 

I do not have strong feelings either way at the moment except to say that all of the questions raised by this post should be answered primarily with attention to the here and now, not to the ancient world of 1868. The past can possibly supply some helpful context for our current dilemma but that's all it can provide. The stakes are simply too high to delegate too much of this issue to generations past, and judges will not, in reality, do that anyway, so why pretend? If we cannot achieve consensus on whether to disqualify Trump, at least we should demand transparency from judges and other officials about why they will reach the decisions they will likely have to make. After all, a lot is at stake.