New scholarship doesn’t improve the weak case for legally disqualifying Donald Trump from being president again.
New scholarship doesn’t improve the weak case for legally disqualifying Donald Trump from being president again.
E ver since January 6, 2021, the political and legal systems have searched for a deus ex machina device to eliminate Donald Trump from our politics without letting the voters decide his fate. It’s a tempting prospect both for liberals who fear another round of post-election violence and for conservatives (like me) who don’t want to throw away another presidential election on a man widely despised by a majority of voters. It’s also quietly tempting for Republican politicians, so long as they aren’t seen publicly to be the ones wielding the knife.
But it won’t be that easy. One of the early arguments made for disqualifying Trump from running again was Section 3 of the 14th Amendment. That argument has resurfaced again. It remains legally deficient.
Terms of Disqualification
Section 3 disqualifies anyone from “hold[ing] any office, civil or military, under the United States, or under any state” if they “have engaged in insurrection or rebellion against” the United States, “or given aid or comfort to the enemies thereof” after previously swearing an oath “to support the Constitution of the United States.”
Section 3 was drafted to deal with a specific situation: Southern states electing leading Confederates to Congress and state offices. As with other provisions of the 14th Amendment, the drafters chose general language to not limit its application to the case at hand, but their original purpose is nonetheless useful in understanding how the language they chose was understood at the time. The heartland case of Section 3 is people who served in the Confederate military or, as members of the Confederate government, aided the war effort. The further one gets from that heartland case, the more the analogies break down.
In Trump’s case, there are two core questions. First, did he “engage[] in insurrection or rebellion?” Second, did he give “aid and comfort” to the enemies of the United States?
I took a deep dive into these two questions in January 2021 and concluded that Trump’s misconduct, while impeachable, had satisfied neither prong of Section 3. I relied heavily on a 2020 law review article by Myles Lynch, which collected a thorough review of Section 3’s history — both the words Congress chose and how those words were applied in the four years immediately following Section 3’s ratification.
I’ll summarize that argument here; you can go back and read the whole thing. The 1866 congressional debates over Section 3 aren’t notably enlightening, but the language chosen by Congress had a history.
The concepts of insurrection and rebellion were taken from the Militia Act of 1795 and the Insurrection Act of 1807, which defined insurrection as an uprising against a state and rebellion as “opposing or obstructing the execution of the laws of the United States ‘by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the power vested in the marshals.’”
That definition implies, although it doesn’t explicitly require, force. The other term here with a history is “aid and comfort,” which already appeared in Article III, Section 3, the treason clause of the Constitution.
In the four years following the 1868 ratification of the 14th Amendment, there were a number of challenges brought to determine whether public officials were disqualified under Section 3 due to their acts and/or statements in regard to the Confederacy. Some of these were resolved in state court, but the main precedents were developed by Congress in judging whether to seat newly elected members. Those decisions were typically made after careful fact-finding, and the reasons for the decisions were recorded. These proceedings came to an end with the 1872 Amnesty Act, which removed all existing disqualifications.
I found persuasive Lynch’s conclusion that those decisions had drawn a crucial line: arguments that had helped incite secession were not covered by Section 3. Only engaging in the rebellion — or giving it aid and comfort — after it started was enough to disqualify:
Lynch concludes that the limited nature of the definitions of insurrection and rebellion “ensures that standard acts of peaceful protest and civil disobedience designed to show opposition to or hinder execution of supposedly unjust laws could not trigger such extreme consequences.” The same principle would apply to acts of peaceful protest that subsequently spiral into something that crosses the line into rebellion — the question is whether someone engaged in the rebellion after the line was crossed . . .
“Aid and comfort” is unquestionably a broader term than “engage,” and would extend to statements of encouragement . . . As in the Article III definition of treason, however, the key word is “enemies”: An enemy does not exist until hostilities are declared or commenced. Prior to the Civil War, it was limited to foreign enemies in an actual or declared war. The Supreme Court . . . extended its use for purposes of wartime maritime law to include the Confederacy, which obviously claimed to be a sovereign government. Even if we assume (sensibly) that the broader definition should be used, “enemies” signifies something much more like a real government engaged in a real war than an ad hoc mob that forms, riots, and dissipates in the course of an afternoon.
On that basis, I concluded that Trump is not disqualified. Even if he arguably incited the Capitol riot, he did not participate in it and mostly remained inactive in sullen silence as it proceeded. The rioters, moreover, did not exist in force long enough to count as “enemies.”
Revisiting Section 3
The latest arguments come from a new law review article by right-leaning originalist academics William Baude and Michael Paulsen. Their work is touted by the New York Times under the headline “Conservative Case Emerges to Disqualify Trump for Role on Jan. 6,” as well as in an Atlantic article by Laurence Tribe and former conservative Fourth Circuit judge J. Michael Luttig and a Reason blog post by Federalist Society co-founder Steven Calabresi. Baude and Paulsen are serious legal scholars. I took the occasion to give careful attention to their views.
I came away disappointed. Baude and Paulsen have advanced very little that might be considered new originalist evidence beyond the ground Lynch’s thorough scholarship already covered (which they credit). Much of their article consists of interesting side questions such as how and by whom Section 3 should be enforced, whether it requires implementing legislation, and whether the president is an officer covered by it — potentially significant questions, but relevant to Trump’s case only if he actually violated the terms of Section 3. One needs to get to page 111 of a 126-page single-spaced draft to encounter anything making a case for disqualifying Trump — and these are more in the nature of creative and aggressive arguments rather than evidence about the meaning of the law.
New Arguments
Baude and Paulsen make four arguments for overcoming the problems I saw with this theory two and a half years ago. They mainly argue that Trump “engaged” in insurrection or rebellion, eliding the “aid and comfort” question. As professor and former federal judge Michael McConnell (who has co-authored a constitutional law casebook with Baude and Paulsen) notes in a response at Reason, they haven’t taken on the point that longstanding precedents make “aid and comfort” liability unavailable without declared enemies of the United States — and “this is reserved for giving aid and comfort to the ‘enemies’ of the United States, which has historically meant enemies in war. Bas v. Tingy (1800).”
So, what are those four arguments?
First, in terms of holding Trump legally responsible for the riot on account of his speech that day and his prior course of conduct in protracting the false election challenge, Baude and Paulsen argue that there is no First Amendment problem because the 14th Amendment repealed the First Amendment — at least, as to the specific issue of advocacy that constitutes engaging in insurrection or rebellion or giving aid and comfort to the nation’s enemies. Thus, the legal question is not whether Trump’s conduct satisfies the First Amendment standard set forth in Brandenburg v. Ohio but whether he violated Section 3.
It’s a provocative thesis with some real force as a matter of constitutional law. But it’s also largely irrelevant. Whether you think Congress in 1869-72 was applying the First Amendment or the 14th Amendment, its precedents still show that incitement before the fact doesn’t fall within the Section 3 categories.
Harvard Law professor Noah Feldman is skeptical of efforts to water down the incitement standard:
The 14th Amendment does not use the word “sedition,” which is often employed to describe verbal acts that organize or plan an insurrection. That absence could be used by Trump or his lawyers to argue that even if the march on the Capitol was an insurrection, and even if Trump verbally helped bring it about, he was not himself “engaged” in insurrection for purposes of the 14th Amendment ban on holding office.
Second, Baude and Paulsen argue that Trump’s “culpable inaction” on January 6, given his position as the nation’s chief law enforcement officer, can be considered engaging in the insurrection or rebellion. This is the point at which this is simply argument, as they cite no real precedent or originalist evidence to support this reading of Section 3. I agree that Trump’s inaction was an element of impeachable conduct, but Congress chose the active verb “engage” — having known perfectly well of cases of federal officials who passively let things happen during the run-up to the Civil War. I do not see what basis there is in the law to conclude that a few hours of lassitude at a remove from the action would meet this active standard. Indeed, Baude and Paulsen seem to frame Trump’s inaction as a matter of his state of mind: “Trump’s deliberate inaction renders his January 6 speech much more incriminating in hindsight, because it makes it even less plausible (if it was ever plausible) that the crowd’s reaction was all a big mistake or misunderstanding.” But if incitement before the fact is insufficient, and if active engagement rather than anyone’s state of mind is the relevant standard, none of that matters much.
Baude and Paulsen add that Trump, during the riot, tweeted another condemnation of Pence for not “hav[ing] the courage to do what should have been done to protect our Country and our Constitution.” This is, again, a far cry from leading the charge up the Capitol steps.
Third, Baude and Paulsen part company from responsibility for the use of force and argue that Trump’s election challenge — using, as it did, extralegal arguments for the abuse of legislative power to throw out properly-selected electors — was a “bloodless coup d’etat” of the sort that would qualify as insurrection or rebellion. Once again, Baude and Paulsen effectively concede that they have almost no basis in 1866-era sources for this argument. The closest they come is an analogy to Lincoln’s argument (concededly, a crucial one in the legal disputations of the Civil War era) that secession constituted a rebellion even before shots were fired.
This is not a very persuasive analogy. The seceding Southern states were openly rejecting the sovereignty of the United States over its own territory. That is an entirely different category from efforts to exploit phantom ambiguities in the Electoral College system, however legally frivolous. Removing a leading candidate for the presidency (in 2024) from the people’s consideration requires a firmer footing in the law.
Fourth, Baude and Paulsen suggest that decision-makers should give some weight to the fact that a majority of the House and a majority of the Senate have both already found Trump guilty of inciting insurrection. That was, after all, one of the articles of impeachment, and it not only passed the House but won 57 votes in the Senate.
This is a fair argument as political rhetoric, but I’m not sure how this is supposed to be either binding or persuasive authority. Impeachment, like a criminal or civil judicial proceeding, has its own rules. The most important rule is that you need a two-thirds vote in the Senate. The articles of impeachment in 2021 were hastily and badly drafted, and, undoubtedly, some of the senators who voted for them decided to overlook that because they felt (correctly) that Trump had committed impeachable offenses, even if they were somewhat inadequately described in the articles. But one way or another, those votes have no legal or precedential force because the impeachment failed.
It Won’t Happen
Much attention has focused on Baude and Paulsen arguing that elections officials such as secretaries of state might declare Trump ineligible on their own authority. It is fair to be worried about the chaos caused if, say, the Pennsylvania secretary of state just takes the nominee for the opposition party off the ballot. But there is no reason to believe that decisions to declare Trump ineligible would not be judicially reviewable. Certainly, Baude and Paulsen do not suggest that judicial review of state executive-branch decisions throwing Trump off the ballot would not be reviewable. If different courts reached different decisions, the Supreme Court would undoubtedly take the case, no matter how reluctant it might be to get involved — most likely before Election Day.
If that is how the case came up, with Trump as the Republican nominee, the stakes would be stark: Democrats would be asking the Court, effectively, to call off the upcoming presidential election by eliminating one of the two major candidates on the basis of an unprecedented and highly aggressive reading of Section 3.
If you think John Roberts and Brett Kavanaugh or Amy Coney Barrett would vote for that, I would not recommend putting money on it.