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It wasn’t long after the Jan. 6 attacks that some political observers started grappling with an unprecedented question: If Donald Trump ran for a second term, would he be disqualified for the presidency under the 14th Amendment?
In fact, just six weeks after the attack on the Capitol, Rep. Jamie Raskin, a former constitutional law professor, reminded the political world that Section 3 of the 14th Amendment bars any public official who swore an oath to protect the Constitution from holding office if they “engaged in insurrection or rebellion” against it or gave “aid or comfort to the enemies thereof.”
The Maryland Democrat explained at the time, “Donald Trump is right in, you know, the bullseye middle of that group,” referencing how the lawmakers at the end of the Civil War intended for it to be used. “And so, he really does fulfill exactly the constitutional prohibition there.”
More than two years later, as the former president faces criminal charges related to his post-defeat efforts, the conversation about the 14th Amendment has reached a level that has apparently gotten Trump’s attention. In fact, it was nearly 24 hours ago when the Republican turned to his social media platform to do something he has largely avoided: Trump commented on the constitutional provision and pushed back against the conversation. From the missive:
“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....”
There are a few angles to this that are worth keeping in mind. The first is that Trump almost certainly didn’t come up with this wording himself, at least not all of it. While it stands to reason that the Republican would refer to constitutional provisions he doesn’t like as a “trick,” it’s also true that “no legal basis or standing relative to...” just isn’t how he normally communicates, especially via social media.
The second is that the former president’s claims are plainly wrong. The idea that “almost all legal scholars” believe the constitutional provision is unrelated to his candidacy is contradicted by all kinds of prominent legal voices who’ve made the opposite case.
As my MSNBC colleague Hayes Brown explained a few weeks ago, “[T]wo prominent conservative legal scholars have released a draft of a pending law review article arguing that Trump is constitutionally ineligible from reclaiming the White House. In doing so, they provide a necessary bulwark against Trump’s ongoing threat to American democracy. The argument comes courtesy of University of Chicago law professor William Baude and Michael Stokes Paulsen, a professor at the University of St. Thomas School of Law.”
Meanwhile, several leading Democrats — including Rep. Adam Schiff of California and Sen. Tim Kaine of Virginia — said over the weekend that questions about Trump having disqualified himself have real merit. (A spokesperson for the former president told Axios this amounted to an “absurd conspiracy theory,” though the debate relies on neither a conspiracy nor a theory.)
Finally, the process of testing the underlying questions about Trump’s eligibility bears watching. A new Washington Post report summarized that there are “two major routes that anti-Trump groups are taking or considering to stop the former president from appearing on state ballots.”
The first route is to urge state election authorities, such as secretaries of state, to rule that Trump should be excluded. If an election authority decides that Trump is ineligible, the former president can challenge that determination in court. The second route is a candidacy challenge, through state election board complaints and lawsuits. The focus so far is expected to be on states’ primary ballots.
MSNBC’s Chris Hayes added this morning, “Whatever you think of the idea, there will be a lot of due process.” Watch this space.