In an article published Wednesday, constitutional scholars William Baude and Michael Paulsen–both members of the conservative Federalist Society–argued that the 14th Amendment bans Trump from running for President for his efforts to overturn the 2020 election. Trump is routing the rest of the Republican primary field and is the odds-on favorite for the nomination. However, the courts present a potentially formidable barrier between him and a return to the White House. While Trump maintains broad popularity with the Republican party–a party whose supporters, on the whole, largely deny the validity of Biden’s 2020 victory–the judicial system has consistently rebuked this narrative. That prominent, conservative legal scholars are arguing for such a punishment in response to Trump’s attacks on the 2020 outcomes will likely prompt him to take note.
Baude and Paulsen contend that Trump cannot be president again because “Section Three of the Fourteenth Amendment forbids holding office by former office holders who then participate in insurrection or rebellion.” While legislators originally wrote Section Three in the aftermath of the Civil War to ban Confederate traitors from assuming national office, they contend it is still binding over acts of treason in the present day. Moreover, contrary to what some critics argue, Section Three is neither overruled by such provisions as the First Amendment nor superseded by more recent legislation, such as the US grant of amnesty to Confederates in the late 19th century. It was made explicitly for times such as this.
Additionally, the authors argue that the Amendmant’s ban on those who engaged in rebellion is “constitutionally automatic whenever its terms are satisfied,” meaning the Constitution doesn’t require congressional consent to ban Trump. Therefore, it is currently objective, and the courts would need to overturn it. Not even a “prior judicial decision” is required. To Baude and Paulsen, Trump’s incitement of violent rebellion on January 6th and his broadsides against the normal legal process of the 2020 election are overt, and he is inarguably “constitutionally disqualified from again being President.”
Baude and Paulsen are, of course, not judges, and whether the courts take up their argument is to be determined. However, that Federalist Society figures are publicly pushing this argument of disqualification is no small deal. Five of the six conservative Supreme Court justices are a part of the organization (John Roberts essentially was decades ago), and legal philosophies commonly spread to the highest court. Moreover, while Trump’s administration confirmed over 200 judges and staked a 6-3 conservative majority on the Supreme Court, Trump has thus far struggled to find an ally in the courts in the aftermath of 2020. His various lawsuits contesting the validity of the election process were universally thrown out of court, including by conservative justices he appointed.
Furthermore, in the past year, Trump has come under increasing legal fire from prosecutors nationwide for a litany of alleged crimes (both in office and outside it). Trump currently faces three separate indictments: crimes stemming from illicit hush-money payments to Stormy Daniels, mishandling of classified documents at Mar-a-Lago, and most recently, his incitement of a coup on January 6th. Meanwhile, investigations continue to swirl over Trump’s attempts to intervene in Georgia’s counting of votes–a situation that could potentially produce Trump’s most severe criminal charges.
It, of course, remains to be seen whether the courts find that the 14th Amendment bans Trump from running for President. The timeline for any such ruling is extremely unclear and may rest on convictions in the January 6th trial. If the courts did ban Trump, no obvious Republican successor is waiting in the wings. DeSantis has flamed out in recent months, undermined by woeful retail skills and extremist politics (which recently provoked outrage after his campaign released an ad with Nazi symbolism). He has fallen to around 10 percent support in the primary field, and a recent quality poll had him third behind far-right provocateur Vivek Ramaswamy. No other Republican candidate sits above single-digit support. If Trump can't be president again, his current legal pressure could become all-consuming as he could no longer guarantee a self-pardon. As always, the 2024 election remains an unprecedented enigma. But Baude and Paulsen’s article threatens to flip the race upside down once again.
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