The search for a silver bullet, wolfsbane, garlic, whatever that will put an end to former President Donald Trump's political ambitions has reached new levels of creativity. This time, it's a long, thoroughly researched law review article from two conservative legal scholars who conclude that Trump is constitutionally barred from ever holding office again.
Prof. William Baude of the University of Chicago Law School and Prof. Michael Stokes Paulsen of the University of St. Thomas School of Law write:
Section Three of the Fourteenth Amendment forbids holding office by former office holders who then participate in insurrection or rebellion. 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.
For those who may not be familiar with the section in question, here it is:
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.
This very clearly covers the ex-confederates who waged war against the U.S. Various amnesties removed the ban for most of them. But Baude and Moore say this very same section applies to Donald Trump. Owing to his role as fomenter-in-chief of the Jan. 6 attack on the U.S. Capitol. The intent then: disrupt the counting of the Electoral College votes – plus whatever other sorts of mayhem, damage, pillaging and general insurrectionist actions came to mind.
While Trump's actual role in those events is about to be litigated in a federal courtroom, the constitutional angle Baud and Paulsen make is the Constitution has already made clear what must occur:
First, Section Three remains an enforceable part of the Constitution, not limited to the Civil War, and not effectively repealed by nineteenth century amnesty legislation. 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. [emphasis added]
It's a novel argument and one that will land with a thud in MAGA-land (just as it will cause hearts to flutter in Resistance-world).
But let's be clear: even if a constitutional argument like this gets real traction in Congress – which, constitutionally, can issue amnesties to anyone who may have rebelled against the nation – do we really think that any Democrat would vote to do so? Of course not.
Or, for that matter, would any Republican – on the theory that voting to grant an amnesty also means they are giving credence to the charge that Trump was, indeed, fomenter-in-chief of the Jan. 6 mob attack on the Capitol? No way.
Rather, the only thing that will keep Trump from returning to the White House is that ultimate judge of politicians: voters.
And we'll get a sense of what they think starting in Iowa next January.
The opinions expressed in this article are those of the author and do not necessarily reflect the positions of American Liberty News.
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