Activists plan to use the US Constitution to stop Trump from running in 2024
According to some liberal groups and legal experts, a rarely used clause of the US Constitution prevents former President Donald Trump from taking office again after the January 6, 2021, attack on the US Capitol.
As the former president dominates the Republican presidential primary, groups are saying the 14th Amendment prevents him from becoming president in the 2024 election. The 14th Amendment bars anyone from office who once took an oath to uphold the Constitution but then "engaged" in "insurrection or rebellion" against it.
A growing number of legal experts say the post-Civil War clause applies to Trump after his role in attempting to overturn the results of the 2020 presidential election and encouraging his supporters to storm the US Capitol. Two liberal nonprofits have pledged court challenges should states' election officers place Trump on the ballot despite these objections.
Activists have said Trump should be removed from the ballot (AP)The effort is likely to trigger a chain of lawsuits and appeals across several states that ultimately would lead to the US Supreme Court, potentially in the midst of the 2024 primary season. The matter adds even more potential legal chaos to a nomination process already roiled by the front-runner facing four criminal trials.
Now, Trump's ability to even run could be litigated as Republicans are scheduled to start choosing their nominee, starting with the Iowa caucuses on January 15. Gerard Magliocca, a law professor at Indiana University, warned there could be different outcomes in different states before the Supreme Court makes a final decision.
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"There's a very real prospect these cases will be active during the primaries," he said. He added: "Imagine you have an opinion that says he's not eligible and then there's another primary where he's on the ballot."
Though most litigation is unlikely to begin until October, when states begin to set their ballots for the upcoming primary, the issue has gotten a boost from a recently released law review article written by two prominent conservative law professors, William Baude and Michael Paulsen. They concluded that Trump must be barred from the ballot due to the clause in the third section of the 14th Amendment.
Trump's involvement in the January 6, 2021, Capitol riot could bar him from running in the next election (AP)This section bars anyone from Congress, the military, and federal and state offices if they previously took an oath to support the Constitution and "have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof."
In their article, set to be published in the University of Pennsylvania Law Review, Baude and Paulsen said they believe the meaning is clear. They wrote: "Taking Section Three seriously means excluding from present or future office those who sought to subvert lawful government authority under the Constitution in the aftermath of the 2020 election."
The issue came up during the Republican presidential debate in Milwaukee last week, when former Arkansas Governor Asa Hutchinson warned that "this is something that could disqualify him under our rules and under the Constitution."
Trump is hoping for the chance to get back into the White House (AP)In 2021, the nonprofit Free Speech For People sent letters to top election officials in all 50 states requesting Trump's removal if he were to run for the presidency again. The group's legal director, Ron Fein, noted that after years of silence, officials are beginning to discuss the matter.
"The framers of the 14th Amendment learned the bloody lesson that, once an oath-breaking insurrectionist engages in insurrection, they can't be trusted to return to power," said Fein. Ahead of the 2022 midterms, the group sued to remove US Representative Marjorie Taylor Greene and then-Representative Madison Cawthorn, both Republicans, from the ballot over their support for the January 6 riots.
The judge overseeing Greene's case ruled in her favour, while Cawthorn's case became moot after he was defeated in his primary. The complex legal issues surrounding Trump's 2024 bid for the presidency were highlighted on Wednesday, August 30, when the Arizona Republic reported that Secretary of State Adrian Fontes said his hands were tied because of a ruling by the high court in the state that only Congress can disqualify someone on Arizona's presidential ballot.
Trump is facing a whole host of legal woes (AP)Fontes, a Democrat, called the ruling "dead, flat wrong" in an interview with the Republic, but said he would abide by it. If Trump does appear on the Arizona ballot, those who believe he's not qualified can still sue in federal court to remove him.
Other secretaries of state are warily navigating the legal minefield. In a radio interview earlier this week Michigan Secretary of State Jocelyn Benson, Democrat, said "there are valid legal arguments being made" for keeping Trump off the ballot and that it's something she is discussing with other secretaries of state, including those in presidential battlegrounds.
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Brad Raffensperger, the Republican secretary of state in Georgia withstood pressure from Trump when he sought to overturn the results of the 2020 election in the state. He has suggested the issue should be up to voters, saying in a statement: "As Georgia's Secretary of State, I have been clear that voters are smart and deserve that right to decide elections."
Trump is facing four court cases as he runs to win the Republican primary for the 2024 election (AP)Trump has argued any attempt to prevent him from appearing on a state's ballot amounts to "election interference" - the same way he is characterising the criminal charges filed against him in New York and Atlanta along with those by federal prosecutors in Washington DC and Florida. Speaking to conservative channel Newsmax, he said: "And I think what's happening is there's really been a backlash against it."
The eventual, bigger court challenges are expected to draw greater legal firepower. But Michael McConnell, a conservative law professor at Stanford University who is not a Trump supporter, said the case is no slam dunk.
McConnell has questioned whether the provision even applies to the presidency because it is not one of the offices specifically listed in the 14th Amendment - which instead refers to "elector of president and vice president". He also said it's unclear whether the January 6 attack constitutes an "insurrection" under the law or simply a less legally fraught incident such as a riot.
But, McConnell also worries about the political precedent if Trump is ultimately removed from any state ballot. He explained: "It's not just about Trump. Every election where someone says something supportive of a riot that interferes with the enforcement of laws, their opponents are going to run in and try to get them disqualified."
The 14th Amendment, ratified in 1868, helped ensure civil rights for freed slaves - and eventually all people in the US - but was also used to prevent former Confederate officials from becoming members of Congress and taking over the government they had just rebelled against. The clause allows Congress to lift the ban, which it did in 1872 as the political will to continue to bar former Confederates dwindled.
If challenges reach the Supreme Court it could come in the middle of the Republican primaries (AP)The provision was almost never used after that. In 1919, Congress refused to seat a socialist in Congress, contending he gave aid and comfort to the country's enemies during World War I. Last year, in the provision's first use since then, a New Mexico judge barred a rural county commissioner who had entered the Capitol on January 6 from office under the clause.
If any state does bar Trump from running, his reelection campaign is expected to sue, possibly taking the case directly to the US Supreme Court. If no state bans him, Free Speech For People and another nonprofit, Citizens for Responsibility and Ethics in Washington, would likely challenge his presence on the ballot.
It's critical that the high court settle the issue before the general election, according to Edward Foley, a law professor at the Ohio State University. He fears that if Trump's qualifications are not resolved and he wins, Democrats could try to block his ascension to the White House on January 6, 2025, triggering another democratic crisis.
Those pushing to invoke the amendment agree and say they think the case is clear. Noah Bookbinder, president of Citizens for Responsibility and Ethics in Washington, said: "This isn't a punishment.
"It's like saying a president needs to be 35 years old and a natural born citizen. You also need not to have helped organise an uprising against the government."
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