At The Hill, Jonathan Turley (GW): The disqualification of Donald Trump and other legal urban legends. From the introduction:
… Democrats have long pushed this theory about [Section 3 of] the 14th Amendment as a way of disqualifying not only Trump but also dozens of Republican members of Congress….
I have strongly rejected this interpretation for years, so it is too late to pretend that I view this as a plausible argument. However, some serious and smart people take an equally strong position in support of the theory. Indeed, conservative scholars William Baude and Michael Stokes Paulsen have argued for the interpretation and insist in a recent law review article that “the case is not even close. All who are committed to the Constitution should take note and say so.”
But some of us like to believe that we are committed to the Constitution and, for that same reason, we say no.
Despite my respect for these academics, I simply fail to see how the text, history or purpose of the 14th Amendment even remotely favors this view. Despite the extensive research of Baude and Paulsen, their analysis ends where it began: Was January 6 an insurrection or rebellion?
Also, as Professor Turley says later, there is the question whether President Trump "engaged in" the insurrection or rebellion, or "g[ave] aid and comfort to the enemies" of the United States. Both of these questions seem fairly fact-dependent.
(Via Real Clear Politics.)
RELATED (also via real Clear Politics): In The Atlantic, J. Michael Luttig & Laurence Tribe take the opposing view: The Constitution Prohibits Trump From Ever Being President Again (praising the Baude & Paulsen article but not really getting into the question of what Trump did or didn't do). Also there's quite a bit of bluster in this article, which makes it seem weaker rather than stronger to me.
FURTHER: Via Ned Foley at Election Law Blog, Noah Feldman (at Bloomberg) argues:
… there is precedent that contradicts [Baude & Paulsen's] argument — precedent the scholars dismiss because they say it contradicts the original meaning of Section 3.
… This constitutional provision is law and requires no further action by Congress to implement it, [their] article says. Courts can and should apply it, but we don’t need to wait for them to do so. Any government official, state or federal, whose duty it is to apply the Constitution must obey Section 3. It follows, the authors say, that the state officials who set the ballots for the primaries and general elections should exclude Trump. If he wants to fight that in court, he can. But there’s no need for the officials to wait for a judicial determination.
To state this argument is to see why it won’t be followed by state officials. Was the Jan. 6 attack on the Capitol an “insurrection”? Did Trump participate or give aid and comfort to the “enemies” of the Constitution under Section 3? These are contentious questions of constitutional interpretation.
True, all state and federal officials are sworn to uphold the Constitution. But today we are accustomed to having the judiciary, and ultimately the Supreme Court, resolve tough constitutional questions.
A state election official who blocked Trump from the ballot would understandably feel an enormous amount of trepidation about making such an epochal decision absent judicial guidance. And even if local officials were prepared to bar Trump, they would be ill advised to do so as a matter of constitutional law.
The Supreme Court as a whole has never directly interpreted Section 3. But in 1869, the chief justice of the United States, Salmon P. Chase, issued a circuit court opinion in Griffin’s Case interpreting Section 3. (At the time, it was normal for Supreme Court justices also to work as circuit court judges.) In it, Chase held that Section 3 was not automatically enforceable — what lawyers call “self-enforcing” — but rather could only go into effect if Congress passed a law directing its implementation. Such legislation is not today in existence.
A circuit court decision, even one written by a sitting chief justice, doesn’t formally bind the judiciary or even the other courts of appeal. Nevertheless, the opinion is overwhelmingly the most important precedent interpreting Section 3. It has not been seriously questioned by the Supreme Court or the other courts of appeal since it was set down more than 150 years ago. Because it is still on the books, ignoring it would be an act of legal irresponsibility.
On this point, I do have a firm view: I agree with Baude and Paulsen (and, unsurprisingly to regular readers, disagree with Feldman). After stating the disqualification, Section 3 continues:
But Congress may by a vote of two-thirds of each House, remove such disability.
That does not sound like a disability that becomes effective only if Congress imposes it in the first place. Among other things, presumably — if an implementing statute were required — Congress could just repeal it by a majority vote. And the phrasing that Congress can "remove" the disability sounds like the disability comes first, and then Congress can act in response (that is, the disability remains in place unless Congress acts, not the other way around). I would need some strong contextual evidence to overcome what appears on the face of the text, and Chase's opinion (perhaps motivated by perceived necessity of the immediate situation, and in any event not especially coherent) isn't enough.
Posted at 6:05 AM