As Donald Trump fights a mountain of criminal charges, a separate battle over his eligibility to run for president in 2024 is fast emerging.
The US constitution sets out just a handful of explicit requirements someone must meet to be the president. They must be at least 35 years old, a “natural-born” citizen, and a United States resident for at least 14 years. The constitution also bars someone who has served as president for two full terms from running again.
None of those requirements disqualify Trump, or anyone else charged with a crime, from running for federal office.
But one provision in the constitution, section 3 of the 14th amendment, makes things more complicated. It says that no person who has taken an oath “as an officer of the United States” can hold office if they “have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof”.
That language disqualifies Trump from running for office because of his efforts to overturn the 2020 election, two prominent conservative scholars, William Baude of the University of Chicago and Michael Stokes Paulsen of the University of St Thomas, concluded in a much-discussed article to be published the University of Pennsylvania Law Review.
“The bottom line is that Donald Trump ‘engaged in insurrection or rebellion’ and gave ‘aid or comfort’ to others engaging in such conduct, within the original meaning of those terms as employed in section 3 of the 14th amendment,” Baude and Paulsen wrote in their 126-page article, which traces the history and original understanding of the amendment. “If the public record is accurate, the case is not even close.”
The provision was enacted after the civil war to bar those who had joined the Confederacy from holding federal office, Baude and Paulsen note in their article. Never before has it been tested to bar a presidential candidate from office.
“I think it’s really actually very clearcut,” said Steven Calabresi, a law professor at Northwestern University and a co-founder of the conservative Federalist Society (the group has reportedly instructed him not to speak to any journalist who identifies him as a co-founder). “Section 3 nowhere limits itself to the civil war or Confederates who broke their oath. It’s in general language, and so it applies to anyone who incites an insurrection or rebellion,” he added, noting that he believed the January 6 attack on the Capitol was an insurrection.
Disqualification under the 14th amendment does not require a criminal conviction, Noah Bookbinder, the executive director of the watchdog group Citizens for Responsibility and Ethics in Washington (Crew), said in an interview earlier this month. The push to disqualify Trump is likely to play out at the state level in parallel to both the federal and state cases criminally charging Trump and allies in connection with their efforts to overturn the election. The left-leaning group Free Speech for People has already sent letters to election officials in 10 states urging them to declare Trump ineligible to run for office under the 14th amendment. Crew is also preparing to file litigation in several states to disqualify Trump from the ballot, Bookbinder said.
“It’s really important to resolve this as soon as possible and definitely before the election and not afterwards,” said Edward Foley, a law professor at the Ohio State University. “I am worried that if this doesn’t get resolved definitively, this issue could arise on January 6, 2025 if Trump were to win the electoral college having been on the ballot.
“You could envision an effort to try and disqualify Trump after he’s won. And I think that would be a disaster. That would be a real constitutional crisis,” he added.
Even if Trump winds up being constitutionally disqualified, many Americans may chafe, especially in the midst of a politically heated election year, at not being able to vote for their preferred candidate.
“Viscerally in a democracy we don’t like the idea that we’re not allowed to vote for someone who we might want to vote for,” Foley said. “On the other hand, Barack Obama might actually be a pretty strong candidate for the Democratic party right now … he’s constitutionally disqualified. However much Americans or Democrats might want to nominate Barack Obama, it’s just constitutionally not permissible to do so.”
The venue for the disqualification efforts could vary by state – it may be secretaries of state, boards of elections, or state courts that hear the challenges. “As a practical matter, the first time a state official decided that Trump was disqualified under Section 3, my guess is it would shoot up to the supreme court real fast and, I don’t know, who knows what the answer would be,” said Michael McConnell, a law professor at Stanford who has been more skeptical about the use of the 14th amendment to disqualify Trump.
It’s also unclear who might have the legal standing to challenge Trump’s presence on the ballot. The best legal case would probably come from a candidate running against Trump, who could argue that they were injured by the presence of an unqualified candidate on the ballot. Calabresi suggested in a blogpost that Chris Christie, one of Trump’s most prominent critics in the GOP field, could lead such a challenge.
The justice department did not choose to file charges against Trump under a specific statute that criminalizes insurrection, McConnell noted.
“The amendment should be interpreted as … an enormous last resort and maybe January 6 rose to that level. It certainly was a much more serious civil disturbance than we usually see. But whether it’s actually an insurrection. I think it’s a bit of a stretch,” he said. “There were hundreds of participants in the January 6 incursion who have been criminally prosecuted and none of them have been charged with insurrection. Trump is one step removed.”
But Calabresi said that Trump could be disqualified under the 14th amendment, even absent a formal insurrection charge. He noted that the standard for proving Trump engaged in an insurrection would be lower in the civil cases to disqualify him than in the criminal prosecutions.
McConnell said his skepticism of disqualification was not intended as a defense of Trump, but rather a concern over what would happen if candidates started frequently trying to disqualify their rivals from the ballot.
“I don’t want to see him water down the meaning of these words so that bringing disqualification motions against your political opponents becomes yet another aspect of our dysfunctional legal and electoral system,” he said.