Experts and academics across the ideological spectrum believe that Donald Trump is disqualified under Section 3 of the 14th Amendment of the Constitution. Leading conservative and progressive figures are in agreement that the Constitution bars Trump from assuming office again and must be enforced.
Earlier this month, prominent conservative law professors and Federalist Society members William Baude and Michael Stokes Paulsen authored a 126-page paper exploring the enforceability of Section 3 of the 14th Amendment in the case of January 6th.
Overall, it seems to us to be quite clear that the specific series of events leading up to and culminating in the January 6, 2021 attack qualifies as an insurrection within the meaning of Section Three: “concerted, forcible resistance to the authority of government to execute the laws in at least some significant respect.”
They explained that as a self-executing provision, Section 3 doesn’t require any action by Congress—and it doesn’t require a criminal conviction.
No action is necessary to “activate” Section Three as a prerequisite to its application as law by bodies or persons whose responsibilities call for its application. The Constitution’s qualification and disqualification rules exist and possess legal force in their own right, which is what makes them applicable and enforceable by a variety of officials in a variety of contexts.
And the law review article details how, specifically, Section 3 applies to Donald Trump and others who were involved in the January 6th insurrection.
The most politically explosive application of Section Three to the events of January 6, is at the same time the most straightforward. In our view, on the basis of the public record, former President Donald J. Trump is constitutionally disqualified from again being President (or holding any other covered office) because of his role in the attempted overthrow of the 2020 election and the events leading to the January 6 attack….
We think that if these constitutional duties are taken seriously, there is a list of candidates and officials who must face judgment under Section Three. Former president Donald Trump is at the top of that list, but he is not the end of it.
Last week, J. Michael Luttig, a retired federal judge and influential conservative voice, and celebrated legal scholar Laurence H. Tribe, professor emeritus of constitutional law at Harvard, published a piece in The Atlantic commending the report and bolstering its arguments. They wrote, “Having thought long and deeply about the text, history, and purpose of the Fourteenth Amendment’s disqualification clause for much of our professional careers, both of us concluded some years ago that, in fact, a conviction would be beside the point. The disqualification clause operates independently of any such criminal proceedings and, indeed, also independently of impeachment proceedings and of congressional legislation.”
They explained that Trump’s effort to overturn the 2020 election in part by inciting an attack on the Capitol “place him squarely within the ambit of the disqualification clause, and he is therefore ineligible to serve as president ever again. The most pressing constitutional question facing our country at this moment, then, is whether we will abide by this clear command of the Fourteenth Amendment’s disqualification clause.”
The two called Baude and Paulsen’s report “momentous” and “written with precision and thoroughness.” Sooner or later, they wrote, the report “will influence, if not determine, the course of American constitutional history—and American history itself.”
They also noted that Baude and Paulsen are two of the most prominent conservative constitutional scholars in the country. Luttig is a lifelong Republican who was nominated as a federal judge by President George H.W. Bush and clerked for Antonin Scalia. Tribe was involved in the founding of the progressive advocacy group American Constitution Society, and represented former Democratic presidential candidate Al Gore before the Supreme Court in Bush v. Gore in 2000 as well as the Florida Democratic Party itself in 2004. In June 2022, Tribe co-wrote an op-ed for the Los Angeles Times, where he explained, “Holding Trump accountable—and disqualifying him from future office—would not be a partisan act, but one needed to preserve the republic.”
Prominent civil rights attorney, law professor and former Director-Counsel of the NAACP Legal Defense & Education Fund Sherrilyn Ifill was one of the first legal scholars to endorse the use of Section 3 of the 14th Amendment to pursue accountability for the attack on the Capitol. In the days following the January 6th insurrection, Ifill tweeted on January 8, 2021 that “Section 3 of the 14th Amend. exists b/c after the Civil War the Framers understood that insurrectionists serving in govt (state or federal) are a danger to the country.” Ifill characterized Baude and Paulsen’s paper as “Huge. Because the 14th amendment was built for such a time as this. It’s not even a close case. Glad there are conservative scholars willing to demonstrate intellectual integrity.”
Jeffrey Sonnenfeld, who has informally advised both Democratic and Republican presidents, concluded in a new Just Security op-ed that Trump is disqualified, stating, “the hard truth is that former President Donald Trump is ineligible to serve again as president and should be rejected from each state’s voting ballots.” He explained that because Trump had challenged Barack Obama’s citizenship in 2008 and then Ted Cruz’s eligibility in 2016 for being born in Canada to a Cuban-born father, Trump understood the power of the eligibility requirements, and that these requirements are the law.
Citing the bipartisan majority Senate vote to convict Trump under articles of impeachment for inciting insurrection, Sonnenfeld agreed that the conclusion that Trump is disqualified spans “both the political spectrum and judicial philosophies.” The idea is now growing, he pointed out, among even some Republican leaders and 2024 GOP candidates like Asa Hutchinson and Chris Christie.
This consistency should come as no surprise: all three branches of the government have correctly identified the attack on the Capitol as an insurrection, with bipartisan majorities in the House and the Senate, multiple federal judges, as well as the bipartisan January 6th House Select Committee, citing Trump as its central cause.
Enforcing the 14th Amendment to disqualify Trump is not a partisan issue, and abiding by the Constitution shouldn’t be one. As Baude and Paulsen point out in their paper, Section 3 is a simple, binding part of the Constitution, just like other qualifications for office, and the fact that enforcement may be complicated doesn’t relieve anyone of the obligation to follow it. As conservative legal scholars Baude and Paulsen wrote, “The Constitution is not optional and Section Three is not an optional part of the Constitution.” This principle transcends the ideological spectrum.