If the Republican Party nominates Donald Trump for president despite his state and federal criminal indictments for attempting to overturn the 2020 presidential election results, it will likely lead to lawsuits in multiple states to remove him from the 2024 ballot under the 14th Amendment to the U.S. Constitution.
Such lawsuits might not ultimately succeed, but they would still provide added legal complications for Trump and the RNC in 2024.
The New York Times reported on Aug. 10 that two distinguished conservative law professors, William Baude of the University of Chicago and Michael Stokes Paulsen of the University of St. Thomas, both members of the right-wing Federalist Society, have concluded that Trump is ineligible to be president. Specifically, he’s ineligible under Section 3 of the 14th Amendment, which bars people who have engaged in an insurrection from holding government office.
But they’re not the first to bring this up. Government watchdog group Citizens for Responsibility and Ethics in Washington, known as CREW, made clear that it would pursue such a legal strategy days before Trump announced his third presidential run on Nov. 15.
Sign the petition: Disqualify Trump from running for public office.
Section 3 of the 14th Amendment reads as follows:
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 Times had obtained an advance copy of a lengthy paper written by the two professors, which is to be published next year in The University of Pennsylvania Law Review.
The Times story speculated that the conservative legal scholars’ law review article “may encourage and undergird lawsuits” arguing that the Constitution makes Trump ineligible for office.
The day the Times’ article was published, CREW tweeted that the group had every intention of putting the legal theory into practice.
Noah Bookbinder, CREW’s president and CEO, went even further in an interview last Friday with MSNBC host Chris Hayes.
Bookbinder said the post-Civil War amendment, ratified in 1868, “is a living piece of the Constitution that applies as much now as it ever has.”
“We are preparing to take action to remove Donald Trump from ballots under this provision … to show that he is not qualified to be on the ballot for president because the Constitution says that he cannot serve.
Obviously we are on ground that hasn’t been tilled for a very, very long time. But every state has laws and has procedures for who is qualified to be on a ballot. … When you have someone who shouldn’t be qualified you ought to get in there soon and that’s what we intend to do, and we trust that courts and election officials will follow the Constitution.”
Hayes called this “a real sleeper issue that we’re going to stay on because I think it could be quite explosive as it proceeds.” As noted by Hayes, CREW actually won a lawsuit based on the 14th Amendment in September 2022, when a New Mexico judge ordered Otero County Commissioner Couy Griffin to be removed from office.
As Bookbinder said, “It was the first time in over 150 years that a court had disqualified someone under the 14th Amendment.”
CREW said in a press release at the time that the ruling also marked “the first time that any court has ruled the events of Jan. 6, 2021, an insurrection.”
CREW represented a group of New Mexico residents who sought to remove Griffin, the leader of a group called “Cowboys for Trump,” for mobilizing and inciting the mob outside the Capitol to violence on Jan. 6, 2021. Griffin was convicted in federal court of breaching and occupying restricted Capitol grounds.
At the time, Bookbinder called it “a historic win for accountability for the Jan. 6 insurrection and the efforts to disrupt the peaceful transfer of power in the United States. Protecting American democracy means ensuring those who violate their oaths to the Constitution are held responsible.”
A July 7 CREW report titled “The Precedent for 14th Amendment Disqualification” notes that before Griffin, just seven public officials were disqualified and barred from public office under Section 3 since its ratification in 1868. Six of them were former Confederate office-holders in cases ruled on between 1869 and 1872. In 1872, Congress granted a broad amnesty to former Confederates.
The seventh official was Victor L. Berger of Milwaukee, who in 1910 became the first socialist elected to the House of Representatives. He was elected again in 1918 despite being under indictment under the 1917 Espionage Act for opposing the U.S. entry into World War I.
The House disqualified Berger from being seated pursuant to Section 3 after his 1919 conviction. The verdict was later overturned by the Supreme Court and he won reelection to Congress in 1922.
CREW followed up its New Mexico victory by again warning Trump that it would try to use the 14th Amendment to remove him from the ballot just days before the former president formally announced his candidacy and months before the first criminal indictment against him was filed.
In a Nov. 3, 2022, letter addressed to Trump at his Mar-a-Lago residence, Bookbinder, a former Department of Justice trial attorney and chief counsel for criminal justice for the U.S. Senate Judiciary Committee, began by stating:
I am writing on behalf of Citizens for Responsibility and Ethics in Washington (“CREW”) to notify you that, should you seek or secure any future elected or appointed government office including the presidency of the United States, we will pursue your disqualification under Section 3 of the Fourteenth Amendment based on your engaging in the insurrection that culminated on January 6, 2021.
The letter concluded by observing:
CREW is resolved to restore the fundamental expectation that sustains our democracy—that the American people elect their leaders and that government leaders accept those results. If you seek elected or appointed office despite being constitutionally disqualified under Section 3 of the Fourteenth Amendment for engaging in insurrection, we and others loyal to the Constitution will defend it.
Trump announced his candidacy in a speech at Mar-a-Lago less than two weeks later.
On July 18, CREW released an 88-page report, “Disqualified: The case for Donald Trump’s disqualification under the 14th Amendment,” which offered a detailed analysis of the case for removing Trump from the 2024 ballot. It’s important to note that this report came out weeks before special counsel Jack Smith secured a sweeping indictment against Trump in Washington, D.C., for allegedly undertaking a "criminal scheme" to overturn the results of the 2020 election. On Monday, Fulton County, Georgia, District Attorney Fani Willis indicted Trump and 18 co-defendants on racketeering charges related to an effort to reverse Joe Biden’s narrow victory in Georgia.
RELATED STORY: Trump’s Georgia indictment: Racketeering, forgery, false statements, and more
CREW’s July report laid out in detail that there is “overwhelming evidence that Trump not only engaged in the Jan. 6 insurrection, but was its central cause,” and that “like other constitutional qualifications based on age, residency, and citizenship, Section 3 is enforceable through civil lawsuits challenging a candidate’s eligibility to hold office.“
It’s worth noting that the 14th Amendment does not require a criminal conviction to be applied.
In his MSNBC interview, Bookbinder added that any secretary of state, as chief election officer, could make a 14th Amendment determination to remove Trump from the ballot themselves without going to court. Obviously, any such elected politician, even in the most reality-based of states, could face a considerable backlash for removing Trump from the ballot on their own. Any such decision would almost certainly be challenged in court.
Here’s the CREW report’s conclusion:
Disqualifying anyone for engaging in insurrection is a very serious step, and no one should take lightly the thought of banning someone from the ballot. But the risk of a repeat or escalation of January 6th poses such an existential threat to our democracy that it demands the use of all available legal tools to prevent it. Section 3 is the measure that the Reconstruction-era framers designed to ensure insurrectionists like Trump are accountable and cannot serve in the government that they attacked; addressing the current risk is exactly what it is there for. The framers saw it as an essential protection against those who have proven themselves disloyal to the Constitution.
Section 3 is both an extraordinary measure, to be used in the extraordinary circumstances of an insurrection like January 6th, and also a basic qualification for holding public office, like many others included in the Constitution that are far more familiar to the American public. Donald Trump is neither above the law, nor is he above democracy. Overwhelming evidence establishes that President Trump was the central cause of and a participant in the insurrection. Because of that, Trump is disqualified from holding any public office, including the Office of the President, under Section 3 of the Fourteenth Amendment.
In the law review article cited by The New York Times, Baude was careful to separate Trump’s indictments from the constitutional case for disqualification.
“The question of should Donald Trump go to jail is entrusted to the criminal process,” he said. “The question of should he be allowed to take the constitutional oath again and be given constitutional power again is not a question given to any jury.”
In a Thursday tweet, Bookbinder said disqualification under Section 3 of the 14th Amendment “is not a punishment.”
“Just like a 30-year-old would be disqualified from being president, Donald Trump disqualified himself when he incited insurrection.”
* * *
Clearly, we are entering into uncharted waters. Just imagine the reaction of MAGA cultists if Dear Leader were to be removed from the ballot in any state based on the 14th Amendment.
But, as John Nichols wrote in The Nation, Trump is campaigning for president as an indicted-but-not-yet-convicted contender. He could still run if he were convicted, and even if he were incarcerated by the time of the election. As many have mentioned while Trump’s indictments pile up, socialist Eugene V. Debs ran for president in 1920 from a federal penitentiary, where he was serving a 10-year sentence for violating the Sedition Act of 1918. He garnered over 913,000 votes.
But the indictments brought by Smith and Willis do strengthen the case for disqualifying Trump under the 14th Amendment from the presidential ballot.
John Bonifaz, a constitutional lawyer who founded the National Voting Rights Institute and now serves as president of Free Speech for People, a national group that deals with presidential accountability issues, told The Nation election officials should use the 14th Amendment to remove Trump from the ballot even if he has not yet been convicted.
In July, Bonifaz’s group sent letters to secretaries of state and elections officials in nine states, including swing states Michigan, North Carolina, Georgia, and Pennsylvania, urging them to abide by the Constitution and bar Trump from the ballot. Like CREW, his group has also threatened to file a lawsuit.
Whether Trump is convicted or not, Bonifaz told The Nation, “Secretaries of state and chief election officials must carry out their duty, follow the mandate of Section 3 of the 14th Amendment, and bar Trump from the ballot. He is the Jefferson Davis of our time.”
Sign the petition: Disqualify Trump from running for public office.