“Almost all legal scholars have voiced opinions that the 14th Amendment has no legal basis or standing relative to the upcoming 2024 Presidential Election.
“Like Election Interference, it is just another ‘trick’ being used by the Radical Left Communists, Marxists, and Fascists, to again steal an Election that their candidate, the WORST, MOST INCOMPETENT, & MOST CORRUPT President in U.S. history, is incapable of winning in a Free and Fair Election.” .
Of course, that isn’t true. A number of prominent legal scholars on both the right and left have said the 14th Amendment does disqualify Trump.
As a reminder, Section 3 of the 14th Amendment, which was ratified in 1868, 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 New York Times reported last month 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 under the 14th Amendment.
In a press release announcing the lawsuit, Noah Bookbinder, the president of CREW, said:
If the very fabric of our democracy is to hold, we must ensure that the Constitution is enforced and the same people who attacked our democratic system not be put in charge of it. We aren’t bringing this case to make a point, we’re bringing it because it is necessary to defend our republic both today and in the future.”
Schneider, a former GOP House member for Rhode Island who now lives in Colorado, said:
“In my decade of service in the House of Representatives, I certified multiple presidential elections and saw firsthand the importance of ethics, the rule of law and the peaceful transfer of power in our democracy. This lawsuit is crucial to protecting and fortifying those fundamental democratic values, and I’m honored to be a part of it.”
CREW 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.
CREW followed that up in a Nov. 3, 2022, letter addressed to Trump as his Mar-a-Lago residence, shortly before he officially announced his candidacy, in which Bookbinder warned the former president that CREW would try to use the 14th Amendment to remove Trump from the presidential ballot.
Meanwhile, Free Speech For People has spearheaded a nationwide effort “to hold insurrectionists accountable for their role in the violent assault on American democracy” that took place on Jan. 6, 2021.
In 2022, the group filed ballot challenges against Reps. Marjorie Taylor Greene of Georgia and former Rep. Madison Cawthorn of North Carolina over their roles in the Jan. 6th insurrection. The challenges did not result in disqualification (Cawthorn lost his primary while the challenge was still pending), but the cases may have set some legal groundwork for the Trump challenge.
Along with the Mi Familia Vota Education Fund, the group launched TrumpIsDisqualified.org
, a campaign calling on secretaries of state and top election officials across the country to follow the mandate of Section 3 of the 14th Amendment and permanently bar Trump—and anyone who participated in the Jan. 6 insurrection—from any future ballot.
The group put out this video after Trump announced his candidacy last November.
In July, the two group’s 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.
Both Free Speech For People and CREW have said they plan to support more 14th Amendment challenges to Trump’s candidacy by voters in other states.
The secretaries of state of Arizona and New Hampshire have both requested legal guidance over how to handle potential challenges to Trump’s candidacy in their states.
There have also been lower-profile 14th Amendment cases filed by individuals in Oklahoma, Michigan, and Florida. The Florida lawsuit, filed in federal court late last month by a tax attorney, was dismissed by a federal judge on the grounds that “an individual citizen does not have standing to challenge whether another individual is qualified to hold public office.”
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But MSNBC legal analyst Jordan Rubin said a lawsuit filed in state court is “better poised” to have the issue litigated through the court system.
It still remains a long shot that these cases would result in the front-runner for the GOP presidential nomination being removed from the ballot. And then there are the political risks to consider.
David Frum, the former speechwriter for President George W. Bush who is now a Never Trumper, wrote for The Atlantic in August that it is better to defeat Trump at the ballot box than in the courts through the 14th Amendment.
The project to disqualify Trump from running for president is misguided and dangerous. It won’t work. If it somehow could work, it would create problems worse even than Americans already face. In an ideal world, Trump’s fellow Republicans would handle this matter by repudiating his crimes and rejecting his candidacy for their presidential nomination. Failing that—and it certainly seems as if that hope is failing—opponents of Trump must dig deep and beat him at the polls one more time. There is no cheat code to win this game.
Legal affairs blogger Jay Kuo has written a detailed analysis of the legal arguments for and against Trump’s disqualification, how cases might proceed through the lower courts, and the options the Supreme Court might consider in any ruling. His conclusion?
The optimist in me believes that if Trump is beaten fairly and squarely in the election, our democracy will be strengthened by that. But the pessimist in me worries that no matter how Trump is defeated—either by operation of law or the ballot box—his supporters will simply never accept the outcome.
Nearly 23 years ago, our Supreme Court ruled 5-4 along partisan lines to deliver the election to George W. Bush. The Democratic candidate, along with Democrats nationwide, accepted the finality of that decision.
That we have little faith that MAGA extremists would do the same today, even with a ruling from a Supreme Court of their own making, speaks volumes of how far and how quickly our democracy has deteriorated. Still, a decision from SCOTUS and yet another pivotal moment for our country looks increasingly likely, and we had best prepare ourselves for it.
There may just be no winning when it comes to Trump and his devoted base in 2024, but for democracy’s sake, we have to keep fighting any way that we can.
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