Push to Disqualify Trump via 14th Amendment Ramps Up Despite Opposition from GOP Field

Critics of Donald Trump are increasingly leaning into the theory that a section of the 14th Amendment could keep the former president off the ballot in 2024, but Trump’s challengers — and NR’s legal experts — aren’t sold.

The idea of using Section 3 of the amendment to keep Trump from running in 2024 has exploded in popularity in the last week and came to a head on Wednesday as Citizens for Ethics and Responsibility in Washington filed a lawsuit based on the theory. The lawsuit, filed by the liberal group on behalf of six Republican and unaffiliated Colorado voters, argues that the “insurrection” provision in the amendment disqualifies Trump from running for president.

The Colorado suit is the first to be filed by an organization with significant legal resources, per the Associated Press. If similar challenges are filed in other states and reach conflicting resolutions, the issue could ultimately end up before the Supreme Court.

The section in question reads as follows:

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.

Supporters of the theory suggest that Trump is disqualified because of his actions in the wake of the 2020 election and on the day of the January 6, 2021, Capitol riot.

NR’s Andrew C. McCarthy wrote back in January 2022 about why Democrats cannot invoke the 14th Amendment to keep Trump from running:

The only sensible reason for impeaching Trump by the time the House voted to do so on January 13, 2021, was to trigger the disqualification remedy for impeachment. There was no need to remove him from office at that point: The expiration of his term was imminent when the House voted to approve the impeachment article, and he was already out of office by the time of his Senate trial. If Trump was not disqualified under the impeachment clause, a remedy that undeniably applied to him, he is not going to be disqualified under the 14th Amendment, which doesn’t.

McCarthy notes that the amendment explicitly refers to senators and members of the House, and to electors of the president and vice president, not to the president and vice president themselves. “Plainly, if it had been the purpose of the amendment’s framers to include the president and vice president, they’d have said so — they wouldn’t have left it at electors,” he writes.

Most of the Republican field has remained quiet about the idea, including Florida governor Ron DeSantis, whose campaign did not respond to National Review’s request for comment.

But North Dakota governor Doug Burgum and former vice president Mike Pence have suggested that the issue of keeping Trump out of office is better left to voters.

Lance Trover, a spokesman for Burgum, told me, “The governor believes Republican primary voters should decide who their nominee for president will be.”

Pence spoke to Fox News about the issue during a trip to New Hampshire on Tuesday and noted that Governor Chris Sununu “recently reflected that he fully expected the president to be on the ballot here in New Hampshire.”

“Not only do I expect him to be on the ballot, but I hope he’s on the debate stage really soon. We’re headed to California for the second Republican presidential debate, and I hope my former running mate is there, so we can really have a debate over the future of this country,” Pence said, referring to the debate at the Ronald Reagan Presidential Library in Simi Valley, Calif., on September 27.

But former Arkansas governor Asa Hutchinson has been vocal in suggesting that the 14th Amendment may disqualify Trump.

“I’m not even sure he’s qualified to be the next president of the United States. And so you can’t be asking us to support somebody that’s not perhaps even qualified under our Constitution. And I’m referring to the 14th Amendment. A number of legal scholars said that he is disqualified because of his actions on January 6,” Hutchinson said during an appearance on CNN last month.

Several legal scholars have in fact come out in support of the idea, notably William Baude and Michael Stokes Paulsen, two members of the Federalist Society who recently wrote about it in the University of Pennsylvania Law Review. Conservative federal appeals court judge J. Michael Luttig and Harvard law professor emeritus Laurence Tribe followed suit, making a similar argument in the Atlantic.

In discussing how the legal theory would play out, Hutchinson said he believes “there should be a court declaration. And so there would have to be a separate lawsuit that would be filed, in which there would be a finding that the former president engaged in insurrection, and that would disqualify him.”

“That’s one avenue,” he said. “The other way would be that if a specific state made that determination on their own, then that would put the burden on someone else challenging that. Either way, it winds up in court for a specific finding.”

“But I expect those lawsuits to be filed,” he added. “I expect some states to take that action, but I think it’s a serious jeopardy for Donald Trump under our Constitution, not being qualified.”

MSNBC opinion writer Hayes Brown suggested that Hutchinson or former New Jersey governor Chris Christie, as the most vocal of Trump’s critics in the 2024 field, should pursue their own legal action to keep Trump off the ballot.

Michigan secretary of state Jocelyn Benson, a Democrat, told ABC News that she and other secretaries of state from Pennsylvania, Georgia, Nevada, New Hampshire, and Maine have been discussing how to prepare for legal challenges to the front-runner’s candidacy since last year.

Trump, for his part, dismissed the idea in a social-media post on Monday, saying that “almost all legal scholars have voiced opinions that the 14th Amendment has no legal basis or standing relative to the upcoming 2024 Presidential Election.”

He said legal challenges that rely on the 14th Amendment are “election interference.”

The renewed 14th Amendment talk comes as a new national Wall Street Journal poll found Trump with a massive lead over his primary challengers. Trump notched 59 percent support, while DeSantis received just 13 percent.

Nikki Haley came in third at 8 percent. But if a new NMB Research survey obtained by Politico is any indication, it seems the former South Carolina governor’s post-debate momentum is still rolling; she is now tied with DeSantis at 10 percent in the Granite State among potential primary voters. (Though it’s worth noting that Haley is at just 3.8 percent in New Hampshire in a RealClearPolitics polling average, compared to DeSantis’s 13.3 percent.)

Amid Haley’s rise in the polls, her campaign manager came out swinging against DeSantis and Vivek Ramaswamy in a new memo to donors on Tuesday that decried the pair as “Trump-lite” and suggested they are falling “all over themselves to copy Trump on everything,” according to Axios.

Meanwhile, two and a half weeks after we reported on Trump’s non-campaign campaign, the former president is set to return to Iowa to attend the University of Iowa vs. Iowa State University football game.

And Pence will deliver a speech at the New Hampshire Institute of Politics on Wednesday afternoon titled, “Populism vs. Conservatism: Republicans’ Time for Choosing.”

“It’s a debate over whether or not we’re going to continue to be a mainstream conservative party or whether we’re going to follow the siren song of populism away from those time-honored principles,” Pence told WMUR 9.

“I think there’s a movement afoot, not just my former running mate, but some of his imitators in this Republican primary, that are more embracing the politics of populism today, walking away from American leadership in the world, walking away from a commitment of fiscal responsibility and reform, and even trying to relegate the question of life to the states only, when I believe it’s an issue for all of the American people,” Pence said.

A Pence aide told reporters on Tuesday that the speech is not aimed at any one candidate, despite suggesting many may assume it is pointed at Trump or Ramaswamy.

The Pence aide claimed Trump governed as a conservative with the former vice president at his side but that Trump “makes no such promises” on how he’d govern this time around.

A spokesperson for Ramaswamy’s campaign told the Washington Post the political newcomer “considers himself a conservative” but not a populist.

“Lots of people throw that word out there with no real definition,” campaign spokeswoman Tricia McLaughlin told the Washington Post.

Around NR

• Jim Geraghty asks “How Late Is Too Late for the GOP Long Shots?” after a new CNN poll found Trump polling at 52 percent, with several back-of-the-pack candidates, such as North Dakota governor Doug Burgum and radio-show host Larry Elder, coming in at 1 percent, and former congressman Will Hurd and former Arkansas governor Asa Hutchinson coming in at asterisks.

I would ask those who are at the asterisk or 1 percent levels . . . What’s your plan? What are you going to do over the next couple of weeks that will garner attention and build support and be different from what you’ve done for the past few months? Because what you’ve been doing is not working.

• Ramesh Ponnuru suggests there are three ways of interpreting what Nikki Haley has been saying about abortion. She either “genuinely thinks that a federal ban on abortion that is extremely modest in scope has a greater chance of success and should therefore be a pro-life president’s priority”; is trying to dodge the issue altogether; or has “not quite finished filling out her position: She recognizes the obstacles to a 15-week ban, she doesn’t want to lead pro-lifers to think electing her will be enough to get one, but if elected she will fight for one.”

• Noah Rothman observes that Republicans don’t think they can lose in 2024, even with Trump as the nominee. “There’s a strange mix of catastrophism and overconfidence surrounding the 2024 election that dominates the thinking among Republican voters,” he writes:

Republicans trying to convince themselves that voters are purely economic actors and will subordinate their concerns about Trump to pocketbook issues fail to consider the fact that voters did not do that in either 2020 or 2022.

• Charles C. W. Cooke said on The Editors podcast last week that a hypothetical DeSantis–Biden match-up would probably be a “toss-up”:

I’ve written before that I think that Trump will lose, but that Biden is the frontrunner and the favorite. Nevertheless, that could change if we have a recession or if something bad and public and undeniable happens to Joe Biden that really does highlight his age in a way that is illustrative. But I think that there is a lot of baggage still around the GOP that will in part remain irrespective of the nominee, and I think DeSantis would go into it about 50–50.

Michael Brendan Dougherty agreed with Cooke, while Philip Klein and Rich Lowry both suggested DeSantis would have an edge.

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