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Former President Donald Trump before departing from Hartsfield-Jackson Atlanta International Airport on Aug. 24, 2023. (AP) Former President Donald Trump before departing from Hartsfield-Jackson Atlanta International Airport on Aug. 24, 2023. (AP)

Former President Donald Trump before departing from Hartsfield-Jackson Atlanta International Airport on Aug. 24, 2023. (AP)

Louis Jacobson
By Louis Jacobson September 6, 2023

A portion of the U.S. Constitution’s 14th Amendment says public officials cannot hold federal, state or military office if they participated in "insurrection or rebellion." Now, legal and political scholars are reviving a debate about whether this once-obscure provision could keep former President Donald Trump off the 2024 presidential ballot.

This discussion began to bubble after the U.S. Capitol was stormed Jan. 6, 2021, by Trump supporters, who aimed to block the counting of electoral votes that certified Trump’s 2020 presidential election loss to Joe Biden.

The discussion resurfaced in recent weeks, even as Trump remains the 2024 Republican presidential nomination front-runner and faces four indictments.

Some legal scholars say Trump’s actions could subject him to a bar under the 14th Amendment, though there are plenty of obstacles to it happening. Those include concerns even among those open to the idea that it would be controversial among Trump’s supporters if he wins the Republican nomination.

 This summer, two conservative law professors — William Baude of the University of Chicago and Michael Stokes Paulsen of the University of St. Thomas — published a paper in which they argued there’s "abundant evidence" that Trump participated in an insurrection. They said the evidence includes a plan to get Congress to count phony, pro-Trump electoral slates, an effort for which Trump was indicted; intimidation of election officials; encouragement for Capitol marchers; and failure to urge the rioters to leave until hours after they breached the building.

This argument was echoed in a different article by conservative former judge J. Michael Luttig and liberal Harvard law professor Laurence Tribe.

These articles may have been scholarly in approach, but the ideas they espoused soon began to gain traction in real-world politics:

  • In the Aug. 23 Republican presidential debate, former Arkansas Gov. Asa Hutchinson cited "conservative legal scholars" when he said Trump "may be disqualified under the 14th Amendment from being president again as a result of the insurrection."

  • In New Hampshire, Republican Corky Messner — a 2020 GOP Senate nominee Trump had endorsed — raised the issue with Secretary of State David M. Scanlan. This prompted Scanlan and state Attorney General John Formella, both Republicans, to release a joint statement saying that Formella’s office "is now carefully reviewing the legal issues involved."

  • A Democratic-leaning group, Free Speech for People, has sent letters to election officials in states including Florida, New Mexico, Ohio and Wisconsin urging them to consider the 14th Amendment issues.

  • In Arizona, Secretary of State Adrian Fontes, a Democrat, said his office is "taking a very cautious approach to the issue." 

  • And in Michigan, Secretary of State Jocelyn Benson, also a Democrat, told MIRS News, "We’re going to see how these constitutional and legal questions, which are not cut and dried, play out in the months ahead."

Legal scholars interviewed by PolitiFact mostly agreed with Benson that the issues are complicated.

"I don’t have good answers to any of these questions, unfortunately," said Brian Kalt, a Michigan State University law professor. The best-case scenario, he said, "is that Trump is kept off the ballot in some state, he challenges that in court, and the case is quickly sent up to the Supreme Court, which then lays down some clear answers to these questions long before any votes are cast. But every step in that process is far from certain."

What does the 14th amendment say, and is it still operative today?

Although the 14th Amendment is best known for enabling African Americans to become United States citizens, Section 3 says that no person "shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military" who had previously taken an oath to support the Constitution and then "engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof."

The language was included "to prevent current and former U.S. military officers, federal officers and state officials who served the Confederacy from serving again in public office unless their disability was removed by at least a two-thirds vote of each house of Congress," Indiana University law professor Gerard N. Magliocca wrote in a 2021 article.

The provision was most frequently applied immediately after the Civil War. But in 1872, Congress granted amnesty to most officials covered by the section, and in 1898, another statute lifted the remaining prohibitions. 

Section 3 was rarely invoked in the 20th century, but legal experts said it could still carry weight.

"I think a court could find a person aided and participated in an attempt to overturn the result of a valid election," said Mark Graber, a University of Maryland law professor. "This is in theory no more difficult than proving persons aided and supported any illegal activity. And I think attempting to overturn an election by violence (qualifies as) an insurrection."

Already, in a 2022 case involving then-Rep. Madison Cawthorn, R-N.C., a federal appeals court ruled that the provision is not limited to the post-Civil War era and could be used today. (The case was rendered moot when Cawthorn lost a primary for his seat.)

How would a 14th Amendment ban be triggered?

"There is no consensus" on how to determine whether Trump engaged in "insurrection or rebellion," said Michael Gerhardt, University of North Carolina law professor.

The most direct precedent comes from the post-Civil War period, when Congress passed a law that laid out how the provision should be implemented. But Republican resistance to labeling the events of Jan. 6 as an insurrection likely would make passing a new law insurmountable — especially in the Senate, where the support of at least nine of Trump’s fellow Republicans would be needed to proceed to a vote.

The matter instead could go before the courts.

A judicial process would be likely, because due process would require a fair fact-finding procedure that allows for cross-examination of witnesses, said Edward Foley, an Ohio State University law professor who specializes in elections. 

But other legal experts suggested that a court proceeding may not be necessary.

Kermit Roosevelt, a University of Pennsylvania law professor, said, "There’s nothing in the text of the Constitution to make me think that this requirement for office-holding is any different from the others imposed by the Constitution, such as being 35 (years old) and being a natural-born citizen. Those obviously don’t require a conviction. So I think the argument is strong that court proceedings aren’t necessary for someone to implement the disqualification."

Quick guilty verdicts in Trump’s Jan. 6-related trials could provide justification for keeping his name off the ballot, experts said. But, they added, the federal special counsel’s decision not to charge Trump with seditious conspiracy for urging rally attendees to march to the Capitol could bolster the former president’s defense against a 14th Amendment challenge.

How the process might play out

Ultimately, the decision to keep Trump from the ballot likely would hinge on one or more state elections officials deciding to take that action. 

Trump’s campaign would then sue, and whichever side loses likely would appeal, said Richard Pildes, a New York University law professor. The case could head to the Supreme Court, which would be able to determine a binding national answer and rule out the possibility that Trump would be kept off the ballot only in certain states.

What does recent judicial activity suggest about the likelihood of Trump being kept off the ballot?

The record is mixed.

In Cawthorn’s case, a federal district court ruled the 14th Amendment clause inactive, but that decision was overturned on appeal, a win for the 14th Amendment tactic’s supporters.

Another case, seeking to block Rep. Marjorie Taylor Greene, R-Ga., from the ballot, was rejected by a Georgia administrative law judge. In Arizona, cases against Republican Reps. Paul Gosar and Andy Biggs were dropped.

The only clear victory so far for 14th Amendment ban proponents came in 2022 in New Mexico, where Couy Griffin, a candidate for Otero County commissioner, was removed from the ballot for having joined the Jan. 6 Capitol riot.

Is there a case against using the 14th amendment?

Some legal experts argue that blocking the GOP front-runner from the nomination would amount to election interference and open a Pandora’s box of political retribution.

James Bopp Jr., a Republican attorney who has been involved in litigation over the 14th Amendment, told Semafor, a news outlet, that the tactic was "dangerous beyond comprehension."

"This isn’t voter fraud — this is overturning the election," he said. 

Another conservative legal scholar, Stanford University’s Michael McConnell, agreed that the 14th Amendment approach could spiral out of control. 

"This approach could empower partisans to seek disqualification every time a politician supports or speaks in support of the objectives of a political riot," McConnell wrote.

RELATED: The Trump documents indictment: Which charges are most serious? Can he still run in 2024?

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Our Sources

U.S. Constitution, 14th Amendment, Section 3

William Baude and Michael Stokes Paulsen, "The sweep and force of Section Three" (University of Pennsylvania Law Review), Aug. 9, 2023

J. Michael Luttig and Laurence H. Tribe, "The Constitution prohibits Trump from ever being president again," Aug. 19, 2023

Gerard Magliocca, "The 14th Amendment’s Disqualification Provision and the Events of Jan. 6," Jan. 19, 2021

The Volokh Conspiracy, "Professor Michael McConnell, responding about the 14th Amendment, ‘insurrection,’ and Trump," Aug. 12, 2023

Edward Foley, "Forget the Trump trials. He might already be ineligible for 2024" (Washington Post op-ed), Aug. 15, 2023

The New York Times, "Conservative case emerges to disqualify Trump for role on Jan. 6," Aug. 10, 2023

The New York Times, "Is Trump disqualified? Republicans prepare to fight long-shot legal theory," Aug. 30, 2023

Politico, "N.H. Republicans feud over bid to knock Trump off 2024 ballot," Aug. 28, 2023

NBC News, "Secretaries of state get ready for possible challenges to Trump's ballot access," Aug. 29, 2023

Semafor, "Meet the people who think Trump can be disqualified from running," Sept. 1, 2023

The New York Times, "Judge blocks effort to disqualify Cawthorn from ballot as ‘insurrectionist,'" March 4, 2022

The New York Times, "In Georgia, a judge rules that Marjorie Taylor Greene did not engage in an insurrection on Jan. 6," May 6, 2022

Citizens for Responsibility and Ethics in Washington, "The Couy Griffin Case: Frequently Asked Questions," Oct. 6, 2022

PolitiFact, "Unpacking the theory that the 14th Amendment could keep Donald Trump out of the Oval Office in 2024," Feb. 4, 2022

Email interview with Michael Gerhardt, University of North Carolina law professor, Sept. 1, 2023

Email interview with Kermit Roosevelt, University of Pennsylvania law professor, Sept. 1, 2023

Email interview with Richard Pildes, New York University law professor, Sept. 1, 2023

Email interview with Edward Foley, law professor at Ohio State University, Sept. 1, 2023

Email interview with Mark Graber, University of Maryland law professor, Sept. 1, 2023

Email interview with Brian Kalt, Michigan State University law professor, Sept. 1, 2023

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