By Brigitte L. Nacos
Two renown experts on the U.S. Constitution, liberal Harvard law professor Laurence H. Tribe and conservative former judge of the United States Court of Appeals for the Fourth Circuit J. Michael Luttig, wrote earlier this month in The Atlantic that the Constitution disqualifies former president Donald J. Trump from becoming U.S. president again. Similarly, two conservative law professors, both members of the Federalist Society, William Baude of the University of Chicago and Michael Stokes Paulsen of St. Thomas University, concluded in their not yet published law review article according to the New York Times, “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.”
While this should be a good reason to rejoice for everyone who opposes Trump’s reelection to the highest office in the land next year, the four experts’ views have not exactly dominated the news. Obviously, most of the leading media organizations do not take the argument serious enough to give it “breaking news” prominence.
All four constitutional scholars point to the 14th Amendment’s Section 3 that deserves to be fully cited here:
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, or under any State, who having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution 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.
Clearly, as an officer of the United States Trump took an oath to support the Constitution of the United States. And clearly, the indictments filed by special council Jack Smith in the District of Columbia and by District Attorney Fani Willis in Georgia charge in detail Trump’s involvement in efforts to violate the constitutional change of power process after Biden won the 2020 election.
But the former president has not had his days in either of the two courts. He has not been convicted. The clause in the 14th Amendment does not spell out, whether charges or convictions trigger the exclusion from holding the mentioned public offices.
Luttig and Tribe have no doubt that the charges are sufficient to ban Trump from returning to the White House. They write, “The disqualification clause operates independently of any such criminal proceedings and, indeed, also independently of impeachment proceedings and of congressional legislation. The clause was designed to operate directly and immediately upon those who betray their oaths to the Constitution, whether by taking up arms to overturn our government or by waging war on our government by attempting to overturn a presidential election through a bloodless coup.”
They cite their colleagues Professors Baude and Paulsen who came to the same conclusion, namely, that “Section 3 requires no legislation, criminal conviction, or other judicial action in order to effectuate its command. That is, Section 3 is “self-executing.”
Given these opinions by both liberal and conservative constitutional experts, I find it amazing that no state government controlled by Democrats has not yet announced that Trump does not qualify to be on the presidential ballot of their state in 2024, if he is the nominee of the GOP.
Once this happens—if it happens, there will be expedited legal actions and an ultimate decision by the U.S. Supreme Court.
And that is the problem.
Even though the wording of the constitution is allegedly guiding the conservative Justices on the Court, I would not expect them to understand Section 3 as Luttig and Tribe, Baude and Paulsen, and many other experts do.
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