Donald Trump hoards stolen top secret government documents. He steals the hearts of brutal dictators and unreconstructed racists. He reliably saps our will to live. Any one of those things should be enough to disqualify him from high office, but it’s his demonstrated penchant for stealing—or incompetently trying to steal—elections that, as some observers note, literally strips him of eligibility to run for president.
And yet he’s running. The fact that he’s almost certainly doing so in a Hail Mary bid to stay out of prison, scam his followers out of more money, and force the government to continue paying for his fortnightly Alfredo sauce sponge baths is beside the point. He’s running regardless. But at last, someone is attempting to do something about it.
Noting that Trump is a literal insurrectionist who schemed to overturn a free and fair federal election, one Palm Beach County attorney has filed suit in the Southern District of Florida to disqualify him under the 14th Amendment of the U.S. Constitution.
And he’s leaning on a lot of scholarly backing.
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In his lawsuit, tax attorney Lawrence Caplan notes that Section 3 of the 14th Amendment, which was passed after the Civil War to keep America-hating racists like Jefferson Davis and Trump out of office, is applicable to Trump and his dreams of gifting Ukraine, the U.S., and half of Congress to Vladimir Putin. And now that Trump has been indicted in two different jurisdictions for failed election-stealing antics, Caplan argues it’s time to act.
“President Trump’s efforts both in Washington, as well as in Georgia and perhaps other states, as well as the consequential assault on the U.S. Capitol … make him ineligible to ever serve in federal office again,” wrote Caplan in his lawsuit. “Now given that the facts seem to be crystal clear that Trump was involved to some extent in the insurrection that took place on January 6th, the sole remaining question is whether American jurists who swear an oath to uphold the U.S. Constitution upon their entry to the bench, will choose to follow the letter of the Constitution in this case.”
Meanwhile, plenty of folks find themselves in solidarity with Caplan.
South Florida Sun-Sentinel:
Caplan concluded that the “bottom line here is that President Trump both engaged in an insurrection and also gave aid and comfort to other individuals who were engaging in such actions, within the clear meaning of those terms” as spelled out in the 14th Amendment “Trump is no longer eligible to seek the office of the President of the United States, or of any other state of the Union.”
The theory has received lots of attention in recent weeks after legal scholars — including one of the nation’s preeminent conservative legal thinkers and members of the conservative Federalist Society — said the 14th Amendment unquestionably applies to Trump, and prohibits him from another term as president.
Caplan’s lawsuit, filed Thursday in U.S. District Court in South Florida, utilizes that theory in asking the court to declare Trump is barred from seeking the presidency and is barred from participating in the 2024 Florida Republican primary.
Repeat: Legal scholars—conservative and liberal alike—have argued that Trump is ineligible. As Daily Kos Community Contributor Charles Jay noted August 15, everyone from ultra-conservative Federalist Society members to the government watchdogs known as CREW have argued Trump should be barred from seeking office.
Such lawsuits might not ultimately succeed, but they would still provide added legal complications for Trump and the RNC in 2024.
Those calls were soon echoed by conservative legal scholar J. Michael Luttig and liberal scholar Laurence Tribe in a widely cited, August 19 Atlantic article that called for Trump’s disqualification:
The former president’s efforts to overturn the 2020 presidential election, and the resulting attack on the U.S. Capitol, place him squarely within the ambit of the disqualification clause, and he is therefore ineligible to serve as president ever again. The most pressing constitutional question facing our country at this moment, then, is whether we will abide by this clear command of the Fourteenth Amendment’s disqualification clause.
We were immensely gratified to see that a richly researched article soon to be published in an academic journal has recently come to the same conclusion that we had and is attracting well-deserved attention outside a small circle of scholars—including Jeffrey Sonnenfeld and Anjani Jain of the Yale School of Management, whose encouragement inspired us to write this piece. The evidence laid out by the legal scholars William Baude and Michael Stokes Paulsen in “The Sweep and Force of Section Three,” available as a preprint, is momentous. Sooner or later, it will influence, if not determine, the course of American constitutional history—and American history itself.
But while the plain text of the 14th Amendment would indicate Trump is ineligible, whether this lawsuit—or any of the calls for his disqualification—yield fruit (or even, since we’re talking about Trump here, Fruit Roll-Ups) is another question entirely.
The Sun Sentinel spoke with Charles Zelden, a professor of history and legal studies at Nova Southeastern University in Florida, and he appeared skeptical.
“The question with this is how do you determine that what Trump did was an insurrection?” said Zelden. “In some people’s minds it is and in some people’s minds it isn’t. And even if you come down on the side that says ‘yes, this is an insurrection,’ is the provision in the 14th Amendment self actualizing? Does it need laws that make it work in practice or is it simply automatic? These are tough questions to answer because there are no obvious answers.”
Zelden also voiced concern that Caplan sued Trump himself, suggesting that secretaries of state might be a better choice.
That said, some would argue that there are plenty of mechanisms for enforcing the 14th Amendment and barring Trump—though any lawsuit would almost certainly end up on the docket of the conservative Supreme Court. Writing for The Daily Beast, former federal prosecutor Shan Wu argued that this is not necessarily the heavy lift it appears to be at first blush.
In fact, there exist a multitude of ways to enforce the disqualification of Trump. For starters, secretaries of state could simply decide he cannot be on the ballot.
Secondly, citizens and states could challenge his presence on the ballot through the courts. There has already been a recent case involving removal of a Jan. 6 rioter from their position on a New Mexico state commission.
All of these, naturally, would result in litigation which likely would end up in the U.S. Supreme Court. Nor is it clear how the Supreme Court would rule on this. Just because there is a conservative majority—including three Trump appointees—does not mean they would rule in his favor, especially given the originalist interpretation bent of the conservative justices.
Meanwhile, Azza Hutchinzzzzzzon, one of the Republicans hoping Trump is crushed by a plummeting hunk of icy airplane poo sometime before the Iowa caucuses, is explicitly calling for Trump’s disqualification. During Wednesday’s GOP president-ish debate, Hutchinson flatly stated, “This is something that disqualifies him under our rules and under our Constitution.”
Whether this lawsuit stands a chance or not, it’s no doubt worth pursuing. Needless to say, if Trump ever returns to the White House, America as we know it is over. The more barrels they can stick in this vicious predator, the better.
And if nothing else, the more righteous lawsuits and legal cases he has to deal with, the less time he’ll have to spread his usual campaign lies—and the better democracy’s chances will be in the long (and short) run.
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Editor’s Note: This story’s headline has been changed.