Earlier this month, two conservative law professors announced that they would be publishing an article, which will appear in the University of Pennsylvania Law Review next year, arguing that Donald Trump is ineligible for the Presidency. The professors, William Baude and Michael Stokes Paulsen, make the case that unless Congress grants Trump amnesty, he cannot run for or hold the office of the Presidency again because of his behavior surrounding the events of January 6th. The argument rests on Baude and Paulsen’s interpretation of Section 3 of the Fourteenth Amendment, which states that officeholders, such as the President, who have taken an oath to “support” the Constitution and “shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof” will no longer hold such an office. Several days ago, Laurence Tribe, a liberal law professor, and J. Michael Luttig, a conservative former judge for the U.S. Court of Appeals, wrote an article for The Atlantic, in which they essentially endorsed the view advanced by Baude and Paulsen: “The former president’s efforts to overturn the 2020 presidential election, and the resulting attack on the U.S. Capitol, place him squarely within the ambit of the disqualification clause, and he is therefore ineligible to serve as president ever again.”
Luttig was once on the Republican shortlist for Supreme Court nominees; recently he has become an outspoken critic of Trump. (He also offered legal advice to Mike Pence when the Vice-President was being pressured by Trump not to certify the election results.) Luttig and I recently spoke by phone about whether Trump is in fact disqualified. During our conversation, which has been edited for length and clarity, we discussed the mechanism by which any removal of Trump from state ballots would take place, the different objections to Luttig’s argument, and why he thinks the Supreme Court is likely to get involved.
You write that Baude and Paulsen “conclude 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.’ ” What does that mean in practice?
Well, not to repeat the question in the answer, but it means that no legislation by Congress or judicial decision or any other finding in a court of law—by virtue of a conviction in a criminal trial, for instance—is necessary for the clause to operate against someone who has previously taken an oath to support the Constitution of the United States and thereafter engaged in insurrection or rebellion against the Constitution of the United States. This was one of the largest unanswered questions until Baude and Paulsen’s comprehensive research and scholarship on the clause, including whether congressional legislation is required, whether a particular individual had engaged in an insurrection or rebellion, and whether there must be a conviction for the same in order for that individual to be barred from holding future office in the United States.
What would be an example of something else that would be self-executing in a constitutional amendment?
The most obvious example, Isaac, is the age requirement in order to become President of the United States. So suppose that someone who was thirty-two years old applied to be on the ballot in a given state, and it was undisputed that that person was thirty-two years old and not thirty-five years old. It would be the Constitution itself that would empower that state election official to disqualify that candidate from the ballot for the Presidency.
Removing someone from the ballot because of the age requirement seems like it would be easy for an official to do without making a judgment call. Someone’s age is an objective fact. Whereas this seems like it calls for state officials to make judgment calls, which could potentially open things up for abuse. Is there a categorical difference there?
There is a categorical difference. There is vastly more judgment entailed in determining whether, for instance, the former President engaged in an insurrection or rebellion than in determining whether a candidate was thirty-five years old. That doesn’t relieve the obligated election official from making that determination. The process for placing individuals on the ballot varies from state to state. But, under our reading of the Fourteenth Amendment, an individual election official could make that decision himself or herself.
As a practical matter, is that likely to occur? It would depend, I think, on the office of the election official. If it were the secretary of state who was charged with placing individuals on the ballot, then I believe that decision by the duly appointed state official would suffice. But, in all events, whoever makes the qualification or the disqualification decision and whether they make it, that decision will be immediately challenged, probably by the former President himself. And that challenge would go directly into court—either state or federal—and it would eventually make its way to the Supreme Court of the United States.
Michael McConnell, a conservative professor at Stanford, and a former federal judge like yourself, has commented on this issue. He wrote, “Congress has enacted a statute, 18 U.S.C. § 2383, which covers participation in rebellion or insurrection, and which provides that those found guilty ‘shall be incapable of holding any office under the United States.’ This mode of enforcement has been enacted by the entity entrusted with responsibility to enforce the Fourteenth Amendment; it proceeds through the ordinary course of prosecution by the executive, trial by a court, decision by a jury, and appeal to appellate courts, with due process at every step.” Why isn’t that the standard?
Michael McConnell is one of the country’s most notable constitutional scholars and a dear friend of mine for thirty-plus years. I don’t know what you are reading from, but he doesn’t say in the quoted passage that that is the only avenue for disqualification. He just makes the observation—correct, of course—that Congress, through 18 U.S.C. § 2383, has also provided a disqualification alternative. But that is not the same thing as to say that the Constitution itself is not an additional alternative. I don’t know if Professor McConnell has said that. I have not read anything in which he said that.
Let me just read some more from him: “It is not obvious that partisan officials in state governments, without specific authorization or checks and balances, should apply broad and uncertain definitions to decide who can run for office in a republic, when responsible officials with clear statutory and constitutional authority have not done so.”
I don’t know if you are a lawyer or not.
I’m not.
O.K., what the professor said is “it’s not clear.” He is not saying that the Constitution itself is not an additional alternative option. Now, what I did read from Professor McConnell was that his concern—and we address it, by the way, in our article—is that it appears anti-democratic to him to let state elected officials responsible for putting people on the ballot do that without there having been a prior determination by a court of law that an individual engaged in an insurrection or rebellion. Now this is very interesting, Isaac.
About twenty hours ago, I responded on Twitter to my friends’ concern about the anti-democratic character of the reading of Section 3 that Professor Tribe and I took. I am going to read this into the record, and I would like for you to use it. The Fourteenth Amendment itself, in Section 3, answers the question whether disqualification is “anti-democratic,” declaring that it is not. Rather it is the conduct that gives rise to disqualification that is anti-democratic, per the command of the Constitution. I posted that twenty hours ago, and it has almost six hundred thousand views.
If you just step back from the legalese, the clause has its origins in the postbellum era. It was to disqualify persons who had previously taken an oath and then engaged in insurrection or rebellion. I have had so many people in the past forty-eight hours say to me, It just makes common sense, doesn’t it? And I say to them, Yes, I think it does in its application to the former President. He had taken an oath to support the Constitution, and he engaged in insurrection or rebellion, or he had provided assistance, aid, or comfort to a rebellion in or around January 6th, when he attempted to overturn the 2020 Presidential election. And he inspired and at least gave aid and comfort to the attack on the United States Capitol for the purpose of interfering with and preventing the joint session from counting the electoral votes for the Presidency, the former President knowing that the electoral votes had been cast for then candidate Joe Biden. That’s a classic understanding of an insurrection or rebellion against the authority of the United States.
So, to clarify, you’re claiming mainly that the insurrection was specifically Trump encouraging the interruption of the proceedings at the Capitol as opposed to things such as calling up Georgia’s secretary of state and asking him to “find” more votes. You are talking more specifically about the events on January 6th. Is that accurate?
No, that is why I specifically said on or around January 6th. The calls to Raffensperger were part and parcel of the rebellion against the United States government. The plan was to overturn the validly held election. The entire plan was multifaceted and sprawling in its co-conspirators, according to the Georgia indictment. It was all part and parcel of the insurrection of rebellion against the Constitution.
The phrase in the amendment is “engaged in,” as in: “shall have engaged in insurrection or rebellion against the same.” McConnell writes, “Section 3 uses the verb ‘engage in,’ which connotes active involvement and not mere support or assistance. Significantly, Section 3 also uses the term ‘give aid and comfort to’—but this is reserved for giving aid and comfort to the ‘enemies’ of the United States, which has historically meant enemies in war.” How do you see that reading, and why do you disagree with it?
Let me address the second bundle of questions first. Section 3 doesn’t refer to insurrection or rebellion against the United States. It is an insurrection or rebellion against the Constitution of the United States. That alone in my way of thinking would distinguish away Professor McConnell’s point that the clause is limited to enemies in war against the United States. On the first bundle of questions, Professor Tribe and I say that, in this particular situation, the ultimate definition of insurrection and/or rebellion is the ballgame. Professors Baude and Paulsen have concluded from their extensive research that, as originally intended, those terms are to be given broad meaning and understanding, and Professor Tribe and I agree with that scholarship.
Is there some aspect of the scholarship that you find particularly interesting or convincing?
Professor Tribe would answer differently, but I was particularly interested in their conclusion—which I just stated—as to the original meaning of those terms.
McConnell goes on to say, “It is significant that the Department of Justice has prosecuted hundreds of persons for their involvement in the January 6 incursion at the Capitol, but has not charged anyone, including Trump, with insurrection under this or any other statute.” Would it be fair for the secretary of state or some other state election official to say, I am not an expert on this. I would defer to the D.O.J., and, if the D.O.J. charges anyone and they are convicted of insurrection, I would follow that through and not allow them on the ballot, but I don’t feel comfortable making this decision. How do you feel about that thinking?
That would not be fair, to use your term, nor would it be correct, because drawing your judgment from the absence of prosecution by the Department of Justice is not law.
Say more.
I’ll be glad to, but I need not. If you said to me, Listen, the former President did not engage in insurrection or rebellion because the Department of Justice has not prosecuted that against anyone involved in January 6th, then I would say to you, So what? It has no bearing whatsoever on the meaning of the clause.
Let me give you a counter-argument, and you can tell me where I am wrong.
[Laughs.] Are we arguing? Or is this an interview?
I am trying to come up with counter-arguments, because I am personally agnostic on this, but I think it makes for an interesting conversation.
I know all the counter-arguments. [Laughs.]
I agree with you that whether the D.O.J. prosecutes someone is not determinative of what the Constitution means. I just wonder whether the response I described might be appropriate for a state official involved in an intense partisan atmosphere who didn’t feel like he or she wanted to make that call. So this would be more practical rather than out of deep belief. They could say, This is a contested issue that even esteemed law professors are discussing and debating. I just wonder if there is more validity to someone’s hesitation at this practical level?
No, there is not. And it is worse than just that. These officials in this context, just like all other elected officials in different contexts, Isaac, have an affirmative obligation and duty under the Constitution and the laws of the United States to interpret them as best they can. It is not an option for them to abdicate that duty because of practicalities or politics.
Have you heard from any state officials who are interested in taking action to disqualify Trump?
If I had, I wouldn’t be at liberty to tell you.
Why? You just keep that private?
Yes.
Do you expect this to get to the Supreme Court?
I feel certain it will go to the Supreme Court, and before the 2024 election. The Supreme Court of the United States has the highest obligation under the Constitution to decide this question. It is not an option for the Court to duck this question.
Because of its importance?
It’s not its mere importance, Isaac. This will be one of the most fundamental constitutional questions ever presented to the Supreme Court in the two hundred and fifty years since the founding of the nation.
Let’s put aside the specifics of Donald Trump and January 6th for a minute. How do you think an argument like this would go, and would you expect ideological divisions among the Justices based on the type of constitutional interpretation it involves? Again, we are pretending that the Court is not partisan here. How would you think about this ideological debate if there was no political context?
The hypothetical entails no political considerations by the Justices. Assuming that, I don’t believe that any of the Justices could, under the Constitution, disagree that Section 3 of the Fourteenth Amendment applies today, as it did in the nineteenth century, when it was ratified, and applies specifically to the former President’s conduct in and around January 6th, as I described to you. I believe the only legitimate question for the Supreme Court, when this case arrives at the Court, is whether the former President’s conduct constitutes an insurrection or rebellion against the United States Constitution.
Is this something you have discussed with any of the Justices?
I would not answer that if I had.
Courts have sometimes been wary of removing candidates from ballots too close to an election. Is there a time frame where you think this would have to be resolved?
This is unprecedented in American history, so nothing that has been done by election officials in the past has any bearing.
If Trump were convicted in the January 6th case in Washington, would that have bearing on how courts should view this?
The only way I can answer that is that election officials have to make their decisions, and I believe courts will have to make their decisions before the President’s trial goes to conclusion. ♦
