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Below is a slightly expanded version of my column in The Hill on the increasingly popular theory that former president Donald Trump is already barred from office under the 14th Amendment. It is a theory that, in my view, has a political appeal that outstrips its constitutional support. In a constitution designed to protect free speech and prevent the concentration of power, this theory would allow for the banning of candidates based on fluid definitions of aiding and abetting insurrection. Such ballot cleansing is common in countries like Iran where citizens await to learn which opposition candidates will be allowed to run. While we are thankfully far from the authoritarianism of these other countries, the implications of this theory for our constitutional system are still chilling.
Here is the column:
The popularity of urban legends is a testament to the will to believe. The desire of people to keep Elvis alive or prove that a Sasquatch could exist furtively in our backyards shows the resilience of fables.
Constitutional urban legends often have an even more immediate appeal and tend to arise out of the desperation of divided times. One of the most popular today is that former President Donald Trump can be barred from office, even if he is not convicted in any of the four indictments he faces, under a long-dormant clause of the 14th Amendment.
This 14th Amendment theory is something that good liberals will read to their children at night. It goes something like this: Donald Trump can never be president again, because the 14th Amendment bars those who previously took federal oaths from assuming office if they engaged in insurrection or rebellion. With that, and a kiss on the forehead, a progressive’s child can sleep peacefully through the night.
But don’t look under the bed. For as scary as it might sound to some, Trump can indeed take office if he is elected…even if he is convicted. Indeed, he can serve as president even in the unlikely scenario that he is sentenced to jail.
Democrats have long pushed this theory about the 14th Amendment as a way of disqualifying not only Trump but also dozens of Republican members of Congress. For some, it is the ultimate Hail Mary pass if four indictments, roughly 100 criminal charges and more than a dozen opposing candidates fail to get the job done.
I have strongly rejected this interpretation for years, so it is too late to pretend that I view this as a plausible argument. However, some serious and smart people take an equally strong position in support of the theory. Indeed, conservative scholars William Baude and Michael Stokes Paulsen have argued for the interpretation and insist in a recent law review article that “the case is not even close. All who are committed to the Constitution should take note and say so.”
But some of us like to believe that we are committed to the Constitution and, for that same reason, we say no.
While I have great respect for these academics, I simply fail to see how the text, history or purpose of the 14th Amendment even remotely favors this view. Despite the extensive research of Baude and Paulsen, their analysis ends where it began: Was January 6 an insurrection or rebellion?
I have previously addressed the constitutional basis for this claim. It is, in my view, wildly out of sync with the purpose of the amendment, which followed an actual rebellion, the Civil War.
Democrats have previously sought to block certification of Republican presidents and Democratic lawyers have challenged elections, including on totally unsupported claims of machines flipping the results. If we are to suddenly convert the 14th Amendment into a running barrier to those who seek to challenge election results, then we have to establish a bright line to distinguish such cases.
The 14th Amendment bars those who took the oath and then “engaged in insurrection or rebellion against the same.” It then adds that that disqualification can extend to those who have “given aid or comfort to the enemies thereof.” According to these experts, Jan. 6 was an “insurrection” and Trump gave “aid and comfort” to those who engaged in it by spreading election fraud claims and not immediately denouncing the violence.
But even the view that it was an “insurrection” is by no means a consensus. Polls have shown that most of the public view Jan. 6 for what it was: a protest that became a riot. One year after the riot, CBS News mostly downplayed and ignored the result of its own poll showing that 76 percent viewed it for what it was, as a “protest gone too far.” The view that it was an actual “insurrection” was far less settled, with almost half rejecting the claim, a division breaking along partisan lines.
The theory that this was a rebellion or insurrection has always been highly contested. On Jan. 6, I was contributing to the coverage and denounced Trump’s speech while he was still giving it. But as the protest increased in size, some of us noted that we had never seen such a comparatively light level of security precautions, given the weeks of coverage anticipating the protest. We then watched as thinly deployed police barriers were overrun and a riot ensued. It was appalling, and most of us denounced it as it was unfolding.
Trump waited to speak, despite criticism from many of us. We now know that many aides called for him to call upon his supporters to pull back, but he waited for a couple hours.
Sulking in the Oval Office does not make Trump a seditionist. Indeed, despite formal articles of the second impeachment and years of experts insisting that Trump was guilty of incitement and insurrection, Special Counsel Jack Smith notably did not charge him with any such crime.
The reason is obvious. The evidence and constitutional standards would not have supported a charge of incitement or insurrection.
Yet these experts still believe that Trump can be barred from office without any such charge even being brought, let alone a conviction. Just judicial fiat that certain challenges were made in bad faith or were rebellious in character.
There is no limiting principle to avoid a slippery slope of partisan disqualifications. Would Trump not be disqualified if he had called for his supporters to withdraw an hour earlier?
Would it have been disqualifying if the security was stronger (as suggested days earlier) and there was no entry into the Capitol?
Putting aside the lack of evidence, there is a lack of logic to these claims. A relatively small number of individuals have been charged with seditious conspiracy, a widely misrepresented charge that can amount to as little as preventing the execution of any law (as opposed to outright rebellion or insurrection).
If Trump supported a rebellion or insurrection, what was the plan? Not only did Smith not charge him with any such crime, but there was little evidence that even the most radical defendants charged were planning to overthrow the nation’s government or were part of a broader conspiracy. There were no troops standing by, no plan for a post-democratic takeover by Trump or his alleged minions. The courts had already ruled against the President and would likely continue to do so. Many congressional Republicans had already joined Democrats in supporting certification and would continue to do so. Military leaders had already said that they would support the transition and would continue to do so.
Trump was clearly not willing to concede. According to some witnesses, there was a despondent and defiant president who may have gotten satisfaction from the chaos in Congress. Yet, even halting the certification, would not stop the certification or result in the seizure of the government.
That leaves us with the argument that any effort to stop a constitutional process is akin to an insurrection or rebellion under the 14th Amendment. If that were the standard, any protests — including the anti-Trump protests and the certification challenges to electoral votes in 2016 — could also be cited as disqualifying. If that were the case, figures such as Rep. Jamie Raskin (D., Md) could be summarily purged from office for having sought to overturn an election.
We would be left on a slippery slope, as partisan judges and members would seek to block opposing candidates from ballots, all supposedly in the name of protecting democracy.
There is a simpler and more obvious explanation for what occurred on Jan. 6, 2021: A political protest became a political riot, and a constitutional theory became constitutional legend.
Reprinted with permission from JonathanTurley.org.
