We’re on a Collision Course with the 14th Amendment and Trump

A new legal theory claims the 14th Amendment of the Constitution bars Donald Trump from running for President again.

Donald Trump talks to reporters while hosting Republican Congressional leaders and members of his cabinet in the Oval Office at the White House. Photo by Doug Mills-Pool/Getty Images.

This piece originally ran prior to the decisions by the Colorado Supreme Court and the Maine Secretary of State to disqualify Donald Trump from the primary ballots in their states. The matter is now being appealed up to the Supreme Court, so we are re-upping this piece, written by appellate lawyer and legal analyst Jay Kuo, to provide a view of the legal landscape once again. As SCOTUS prepares to hear these challenges and as other states’ challenges to Trump’s eligibility mount, the stakes could not be higher for the country.

Is Donald Trump ineligible to hold federal office under Section 3 of the Fourteenth Amendment? That’s been a topic of discussion among constitutional scholars for some time now. If you look strictly at the text of that section, you can see why there’s an argument to be made:

Section 3 Disqualification from Holding Office

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States…who, having previously taken an oath…as an officer of the United States…shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

The theory caught a big uplift when two respected, conservative legal scholars affiliated with the Federalist Society released a pre-print version of their work, to be published in the University of Pennsylvania Law Review. William Baude of the University of Chicago and Michael Stokes Paulsen of the University of St. Thomas took a close look at the history behind the Section and concluded that Trump is barred by it, claiming it is not even a close question.

“Donald Trump cannot be president — cannot run for president, cannot become president, cannot hold office — unless two-thirds of Congress decides to grant him amnesty for his conduct on Jan. 6,” Baude said to The New York Times, summarizing the piece.

Then two other legal heavyweights weighed in with the same conclusion. Judge J. Michael Luttig of the Fourth Circuit and Professor Laurence Tribe of Harvard University published a piece in The Atlantic that raised the question to national prominence, with both making the rounds on news talk shows to drive home their legal conclusion: Trump is disqualified and simply can’t be on the ballot.

This didn’t remain in the realm of the theoretical for long. Just last week, the group Citizens for Responsibility and Ethics in Washington, working with six Republican and unaffiliated Colorado voters including former state, federal and local officials, and backed by three private law firms, filed suit in Colorado to block Donald Trump from being added to the presidential ballot for 2024. And this is just the beginning of such suits. CREW intends to file others; we can now expect challenges across the country.

So, is Trump ineligible to run? The very short answer to this is: “We don’t know.” Ultimately, this is likely headed to the Supreme Court. But the question necessarily contains other very important ones to consider that not many are yet asking.

First, how is the question most likely to wind its way through the court system and then get before the High Court? This is an important consideration to think through because it would directly impact the scope and effect of any Supreme Court decision.

Second, how might various suits impact the presidential race? To understand this, we need to closely follow the legal paths the challenges to Trump’s eligibility will take, including their timing.

Third, what happens in the wake of a likely Supreme Court ruling? That ruling could come out three basic ways: 1) no, Section 3 can’t be applied to disqualify Trump; 2) yes, he is disqualifiable; or 3) maybe, but it’s up to each state to decide. With respect to the last two options, I haven’t seen much written about the likely effect of a disqualification or a punt by the Supreme Court. Both results are possibly chaos-inducing, as I’ll discuss in greater measure below.

In this piece, I’ll summarize the best arguments each side has for why Donald Trump is, or isn’t, disqualified from running under Section 3. Then we’ll walk through the three questions I laid out above to try and make sense of the procedural and political mess that this question might wind up creating. 

The legal argument for Trump’s disqualification

There are three key things to understand about the arguments, made by both the Federalist Society scholars and the concurrence of Judge Luttig and Professor Tribe, that Trump is disqualified under Section 3 of the Fourteenth Amendment.

First, they argue that Section 3 remains viable and enforceable, and that the historical record shows it wasn’t limited in some way to the events of the Civil War. It wasn’t repealed by later legislation, including the Amnesty Act of 1872. It was never relegated to some historical shelf, any more than other parts of the U.S. Constitution. It is as much a part of the document as any other amendment, and we cannot simply ignore it as if it’s not there. It plainly is, and we must pay it due heed.

Second, they assert that the clause is “self executing,” meaning that it doesn’t take some additional act of Congress or even a criminal conviction in court in order for those charged with defending the Constitution to act upon it. That includes every official at the state or federal level tasked with judging candidate qualifications. It is no different in principle, they assert, from the age and birthplace requirements that are already in the Constitution.

Third, the range of conduct covered by “insurrection or rebellion” or giving “aid or comfort” to the enemies of the United States is quite broad and, they argue, would definitely include Trump’s attempts to overturn the presidential election. Baude and Paulsen compared other provisions of the Constitution using similar language, including “the especially strong evidence from 1860s Civil War era political and legal usage of nearly the precise same terms” as well as early enforcement of the provision to support their claim. That led them to champion a “broad understanding of what constitutes insurrection and rebellion and a remarkably, almost extraordinarily, broad understanding of what types of conduct constitute engaging in, assisting, or giving aid or comfort to such movements.”

The legal argument against Trump’s disqualification

Much of the criticisms of the originalist, textual argument advanced by Baude and Paulsen raises the specter of politicization of the power to disqualify. Do we really want to empower secretaries of the various states to decide, on their own, that certain candidates are or are not disqualified, based on their alleged insurrectionist or rebellious behavior or because they gave aid and comfort to the enemy?

If we do that, critics argue, what’s to stop red state officials from moving to keep Joe Biden off the ballot, for example, on the grounds he also has given aid and comfort to our enemies? Has he not failed to halt the flow of migrants into the country, and isn’t that disqualifying? And on and on.

Otherwise put, do we want each and every state or even local election official to have that kind of power and discretion? That would inevitably produce a patchwork of inconsistent rulings and further might disenfranchise voters by taking away their right to choose the candidate of their choice. As such, Section 3 should and must be read as narrowly as possible.

It follows from this that Section 3 should be interpreted to apply only to very clear-cut cases of insurrection or rebellion, as when someone has been convicted specifically of that crime, or of aiding and abetting a conspiracy against the United States. Short of that, and it opens a Pandora’s box of problems.

And unlike the Constitution's age and birthplace requirements to run for president, which are easily proven (or at least one would assume, absent the birther conspiracy), whether someone did or did not engage in insurrection or rebellion or give aid and comfort to the nation’s enemies is a more complex question that would require a judge or jury to decide. And that, as I will discuss below, creates a host of potential inconsistent results.

There are also some textual arguments against application of the Section that are somewhat less compelling, including the argument, advanced by former Attorney General Mike Mukasey in an OpEd in the Wall Street Journal, that the ex-President of the United States is not covered by this clause because he was not an “officer” within the meaning of the section. 

This feels like a stretch. First, the Constitution discusses the “Office” of the President in Article II, Section 1. It’s hard to see how the president would hold an Office yet not be an Officer. Further, there’s no evidence that the drafters intended to exclude any one official, let alone the President, from the application of Section 3. To the contrary, the question of whether it also covered the President was raised during debate and answered in the affirmative.

How might the question arise in the lower courts?

I want to preface this rest of this discussion with a disclaimer. Some of the procedural questions here grow so complex so quickly that I am a bit reluctant to place strong assurances on my own analysis. Even while writing this piece, I have had to reconsider and rewrite my own conclusions a few times as I pulled on some fraying legal threads.

Indeed, there are so many permutations and possible procedural developments that, at best here today, I can present only a few likely scenarios, each with questions that would need to be answered through rigorous advocacy by teams of lawyers on each side.

That said, here are some of my thoughts on the complex procedural postures these cases could assume.

Assuming for the moment that Section 3 is self-executing—meaning that state officials charged with administering elections can and indeed must apply the Constitutional limitation as part of their decision whether to place a candidate’s name on the ballot—that presents some options for litigants.

Plaintiffs (or in the Colorado suit, “Petitioners” because they are asking for a specific action from the Court) could be voters who sue their own Secretaries of State in state court to prevent them from placing Trump’s name on the ballot. This is the situation with the lawsuit now pending in Colorado. The Trump Campaign could also be named as a defendant (in Colorado, a “Respondent”) or in a different state could intervene in the case, if not named directly as a party, because it is Trump’s name that will be on, or off, the ballot.

Alternatively, other Republican candidates could sue a Secretary of State to keep Trump’s name off the ballot, with their standing to sue far clearer because they are directly harmed by Trump’s inclusion. This hasn’t happened yet, and it’s unclear whether any GOP candidates would ever take this step.

A Secretary of State unilaterally could decide to keep Trump’s name off the state’s ballot, expressing the belief that the Constitution requires it. This is a bit less likely now, given that there is already an active case in Colorado that, we hope, will result in guidance for other states. But it would eliminate some of the more tricky questions about standing because it would force the Trump campaign to sue, and the campaign would definitely have standing.

However the case commences, it would likely remain in state court because Trump would have no grounds for removal to federal court. Trump is no longer a federal officer acting within the scope of his duties but rather only a candidate for federal office. Indeed, Trump’s campaign earlier filed a notice of removal of the Colorado case, but then his lawyers realized they didn’t really have grounds to remove it to federal court and withdrew the removal request.

How would the cases then proceed?

We’ll take a pause here to note where this leaves things. Plaintiffs, perhaps in separate cases across several states, will be seeking court declaration that Trump engaged in insurrection or rebellion or otherwise gave aid or comfort to the enemies of the U.S. through his actions, and inactions, around January 6. Importantly, these would not be criminal trials. Instead, they would be civil ones, which means the burden of proof would only be a preponderance of the evidence, or just over 50 percent. 

Because the Petitioners are asking the court to declare Trump ineligible and enjoin him from appearing on the ballot, this is a “bench trial” not a jury trial. For example, it was a single judge who issued a ruling, after an evidentiary hearing, in the unsuccessful suit brought to disqualify former Rep. Majorie Taylor Greene from the Georgia ballot on the grounds she participated in the insurrection at the Capitol.

At the case’s outset, Trump’s attorneys could seek to dismiss for lack of standing, or somehow raise an issue that would need to go up on appeal right away. Standing is a real threat here, as some earlier efforts to bring such cases have shown. To demonstrate standing, you have to show you personally were or will be injured, and that’s just not that clear when it comes to keeping a name off a ballot.

If those challenges are unsuccessful, and the case goes forward, there would be inevitable battles over what the words like “insurrection,” “rebellion” and “aid or comfort” mean in Section 3. And after a verdict, there would likely be appeals over just about anything that might have affected the case, including rulings about certain evidence coming in.

What might the effect of a decision in one case be?

Assuming there are multiple cases filed in several different states, things could get hairy quickly. There are legal principles that would probably come into play that would operate to prevent inconsistent rulings, for example one judge finding Trump did engage in or aid an insurrection while another finding he did not.

One principle that might possibly be relevant is res judicata, also known as “claim preclusion.” It generally prevents a party from raising a claim after it is subject to a final judgment. For claim preclusion to apply, however, all of the parties need to be the same in the challenged action as they were in the prior action. This principle might prevent a copycat action in the same state, but it likely wouldn’t directly stop an action in a different state with a different Secretary of State.

More on point is something called “collateral estoppel” which sounds awfully complicated, but isn’t when explained in plain English. It prohibits the re-litigation of a factual or legal issue after a court has issued a final ruling on it. This could apply across jurisdictions, including between different states or courts. Collateral estoppel addresses the kind of problem we might face here: multiple plaintiffs across different states all trying to strike Trump off their state ballots. 

If a judge declares that Trump violated the requirements of Section 3, and the appellate courts uphold the decision against legal challenges, then Trump could be barred from arguing, on factual or legal grounds in a different case, that he should not be disqualified. (There are some interesting questions over whether Trump could already be barred by collateral estoppel from asserting certain defenses due to prior adverse rulings in other January 6 cases in federal court. But we shall save that discussion for another day.)

Because early cases, such as the one already underway in Colorado, may wind up presenting these legal and factual questions first, the Trump Campaign’s lawyers could conceivably ask other state court judges to stay any further cases that get filed until that case is done. Or, perhaps his lawyers could get aggressive and file suit in another state to demand that Trump’s name gets printed on the ballots, perhaps bringing the case in an early state like Iowa in the hope of landing a more favorable judge.

How might the U.S. Supreme Court get the case?

In the Colorado case, any appeals of the district court’s rulings would likely go to the Colorado state appellate court then to its state Supreme Court. From there, if there is a question of constitutional interpretation, it could then go up to the U.S. Supreme Court. The same would occur in any other state where an action might be filed.

This is unless of course Trump’s campaign found a way to take questions directly up to SCOTUS, perhaps by convincing red state attorneys general to sue to stop blue or purple states from barring Trump, making this a case between the states and therefore one of “original jurisdiction” for the High Court. If that sounds crazy, remember that red state AGs banded together before in 2020 to file a Hail Mary suit to overturn the election, and the Supreme Court ultimately declined to hear it.

When it does get a case on appeal, the Supreme Court likely will have to smooth out some bumpy issues of law. For example, it will have to determine whether voters have standing to bring civil cases, whether such cases brought under a self-executing Section 3 are appropriate at all or would first require an act of Congress or a criminal conviction, or if presidents are covered as “officers” by Section 3 in the first place. The Trump Campaign could move to dismiss the case on these grounds and try to send that up the flagpole right away.

If the High Court allows Section 3 cases to move forward, it will at some point likely still have to provide some guidance about what the terms in that Section actually mean and what standard to apply. For example, should courts look to the intent of the drafters at the time of the Fourteenth Amendment, or will subsequent acts of Congress inform the words’ meaning?

Suffice it to say, there is no obvious and straight path up to the Supreme Court. Yet without its weigh in, lower courts could be left in a state of confusion and chaos. 

How might the lawsuits affect the presidential race?

Imagine this: By spring of 2024, judges in multiple states, including in some key battleground states like Michigan, Wisconsin, Pennsylvania, Georgia or Arizona, are each weighing the question of whether Donald Trump is disqualified under Section 3. Some of these cases got going sooner, some later, meaning that some are heading toward a full evidentiary hearing or trial, while others are dormant or trailing. 

These planned evidentiary hearings are massive in scope—as complex and involved as the January 6 Committee hearings, but with added time for the defense to cross-examine witnesses. Some witnesses might resist the court summons, and others might plead the Fifth. 

Imagine some judges decide the state cases should defer to the calendar of the federal criminal cases, but some others say only to a point. After all, a decision needs to happen before ballots get printed! But because this is all discretionary, imagine that still other judges decide that their cases are ready to go, and they don’t yield any time at all.

Trump could ask for stays of these cases, claiming he can’t adequately defend them without prejudicing his rights in a pending criminal matter. But such a stay is not automatic, and some judges might not agree.

Trump could ask for bench trial dates far into the future, with his already-packed schedule making it impossible for him to campaign and defend himself in court. That argument might carry little weight in a criminal court, but these are civil actions we’re talking about here.

Trump will likely point to all the cases as further evidence that they are doing everything they can to interfere with his election chances. He has already made this claim in Colorado. But many of these cases will have been brought by members of his own party, just as they were in Colorado, precisely to blunt this point. From there, Trump likely will blame “RINOs” for being complicit with the Democrats.

And how will the other GOP presidential candidates respond? Will they condemn these civil suits, just as most have condemned the federal and state prosecutions? Or will they defer to the courts on this? So far, there hasn’t been much by way of protest against the Colorado suit from the other GOP candidates.

What could happen in the wake of a SCOTUS ruling?

As I discussed at the outset of this piece, there are three basic ways the Supreme Court could go: Trump cannot be disqualified under Section 3, Trump can be disqualified under it, or maybe yes / maybe no.

If SCOTUS rules that Trump’s name must remain on the ballot in a state, perhaps despite a trial judge’s ruling to the contrary, this would be seen by many as an anti-constitutional move, or as political favoritism by the right-leaning Court. In a time when faith in the impartiality of the Supreme Court is at an all-time low, watching it step in to protect Trump from a verdict against him might erode what little trust still remains. (Still, from the point of view of democracy, this outcome might be preferable—unless the next likely alternative is an actual win by Trump, which would potentially end democracy in the U.S. as we know it.)

On the other hand, SCOTUS allowing a state to disqualify Trump following a civil trial would likely produce electoral chaos. Let’s say, for example, that a liberal state supreme court in an electorally critical state, such as Wisconsin, determined that Trump is ineligible to run, and SCOTUS let that decision stand. What would the GOP do then? 

If that should occur before the GOP convention, would the party attempt to broker a new nominee? Or would they stick to Trump, even knowing that he cannot win the White House without his name on the ballot in Wisconsin? MAGA voters in Wisconsin and around the country might stage large protests against the decision, and now the Democrats look like the anti-democratic ones, even if it was the Republican-dominated Supreme Court that let the decision stand.

Such a ruling might embolden other state officials to strike Trump’s name from their own state ballots. And in response, red state officials might strike Joe Biden’s name to make a point. SCOTUS might try to step in again to rule on the law, but at this point things would be unraveling quickly.

Given the stakes, we could see a punt from the Court, too. Imagine SCOTUS remanding the case to the trial court with instructions to apply a different standard or definition of “engaged in insurrection” than one that was used. Would there even be time before the primary for a ruling? Or would the ruling simply preserve the status quo of having Trump’s name on the ballot, while allowing a judge to determine later if he’s ineligible?

Again, the mind reels, because none of these outcomes is particularly great, either for democracy or for the future of our country. From where I sit, I can see the appeal and the strength of a straightforward Section 3 disqualification argument. But I can also see how allowing the legal system to decide an essentially political question carries enormous risks. 

The optimist in me believes that if Trump is beaten fairly and squarely in the election, our democracy will be strengthened by that. But the pessimist in me worries that no matter how Trump is defeated—either by operation of law or the ballot box—his supporters will simply never accept the outcome.

Nearly 23 years ago, our Supreme Court ruled 5-4 along partisan lines to deliver the election to George W. Bush. The Democratic candidate, along with Democrats nationwide, accepted the finality of that decision. 

That we have little faith that MAGA extremists would do the same today, even with a ruling from a Supreme Court of their own making, speaks volumes of how far and how quickly our democracy has deteriorated. Still, a decision from SCOTUS and yet another pivotal moment for our country looks increasingly likely, and we had best prepare ourselves for it.