Donald Trump’s legal troubles are growing. His election campaign is already littered with court dates from four parallel criminal proceedings. Now he could face another legal battle over the question of whether he can even be on the ballot.
It is still more than a year until the American presidential elections. But a debate has already broken out over whether a paragraph in the US Constitution could exclude Republican frontrunner Donald Trump from the election. On Tuesday, the liberal group Free Speech For People filed a lawsuit in the state of Minnesota seeking to ban Trump’s name from appearing on a ballot at all. It is the second lawsuit in two weeks that invokes the controversial 14th Amendment.
The impetus for this came last month from an article by two prominent conservative lawyers in the US magazine “The Atlantic“. In it, retired federal judge Michael Luttig and constitutional lawyer Laurence Tribe come to the conclusion after a year-long investigation that Section 3 of the 14th Amendment would disqualify the ex-president from the election. They argue that Trump is therefore ineligible for the office of president because, despite his oath of office, he “participated in an insurrection” during the storming of the US Capitol on January 6, 2021.
Now election officials across the country are debating how to handle this thorny legal issue in an already heated election campaign. Legally there are many question marks. But that’s not the only reason many Trump critics are urging caution.
Dispute over the 14th Amendment and its application to Donald Trump
The history of the constitutional amendment in question – which is also known as the exclusion clause – goes back to the late 19th century. After the end of the American Civil War, Section 3 of the 14th Amendment was ratified in 1868 to bar Southern states that continued to send people to Congress who had previously held positions in the opposing Confederacy from holding office. The text of the section states that any American official who has taken an oath to uphold the U.S. Constitution is barred from holding future office if he or she has “participated in insurrection or rebellion” or provided “aid or assistance” to insurgents has achieved”.
And this is exactly where the legal disputes begin. Some legal experts believe that Section 3 remains as applicable today as it was at the time of ratification, similar to many other constitutional articles that arose from specific historical circumstances. Noah Bookbinder, president of the liberal NGO Citizens for Responsibility and Ethics in Washington, explains that the “established qualification” in Section 3 “is in many ways no different from the qualification of being 35 years old and an American citizen to become president.”
Opponents of applying the controversial constitutional amendment, however, argue that the section only applies to the period of the Civil War and is therefore outdated. In addition, the state election authorities do not have the authority to exclude candidates before an election and it has not yet been proven in court that Trump incited an “insurrection.”
The legal question marks include what counts as “participation in an insurrection,” who has the authority to challenge Trump’s eligibility, and who could possibly enforce a disqualification. “Section 3 of the 14th Amendment is old – it hasn’t really been put to the test in modern times,” says Jessica Levinson, a law professor who specializes in election law, in the New York Times.
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In Trump’s case, the matter could now be decided on a state-by-state basis. Last week in the state of Colorado, a group of six voters passed a corresponding lawsuit to keep Trump off the ballot based on the 14th Amendment. The plaintiffs are Republican and unaffiliated voters who argue that Trump should be immediately disqualified for his role in the storming of the Capitol.
The Trump camp immediately fired back. “Joe Biden, the Democrats and the Never-Trumpers are scared to death because they see polls showing President Trump winning the election,” his spokesman Steven Cheung said in a statement. The ex-president himself wrote on his social media platform Truth Social that using the 14th Amendment to disqualify him from the election is a “trick” that amounts to influencing the election.
Similar efforts to those in Minnesota and Colorado have long been underway in other states. Last month, the liberal group Free Speech for People wrote to the secretaries of state in Florida, New Hampshire, New Mexico, Ohio and Wisconsin, urging them not to place Trump on the ballot based on the 14th Amendment. In the traditionally first primary state of New Hampshire, Secretary of State David Scanlan then asked the Attorney General to examine its possible applicability to the upcoming presidential election. In the battleground state of Michigan, Secretary of State Jocelyn Benson recently said that “there are strong legal arguments” to bar Trump from the election and that she would discuss the issue with election officials in other states.
But many view the advances of liberal and conservative anti-Trumpers rather skeptically. In Arizona, Secretary of State Adrian Fontes already announced that he had no authority to exclude the ex-president from the elections, but added that the question of Trump’s eligibility had not been resolved. His colleague Brad Raffensperger argued similarly in a guest article in “Wall Street Journal” and emphasized that voters alone “deserve the right to decide on elections.” In Florida, a federal judge has already dismissed a corresponding lawsuit. However, without clarifying the question of the applicability of the 14th Amendment, but because the plaintiffs were not entitled to do so to file the lawsuit.
Delicate political debate in the USA
From a historical perspective, the 14th Amendment is also tricky territory. In New Mexico last year, Otero County Commissioner Couy Griffin became the first incumbent to be disqualified in 150 years. But even though he wasn’t convicted of a more serious crime – his charge was trespassing – he was actually present when the Capitol was stormed. This fact distinguishes his disqualification from the failed attempts to invoke the 14th Amendment in the cases of Republican Reps. Marjorie Taylor Greene and Madison Cawthorn.
One thing is certain: Trump’s proximity to January 6th is certainly more pronounced than that of Greene or Cawthorn. And the application of the constitutional amendment in question is not linked to a conviction in one of the four ongoing trials against him. But given that the ex-president is currently facing 91 criminal charges and “participation in insurrection” is not one of them, it may be difficult to charge him with this specific offense.
In the already heated election campaign, political observers warn against carelessly dismissing the importance of public perception. It is clear to most experts that January 6th amounted to an insurrection. But a Monmouth University poll last year showed that only 52 percent of Americans shared that view. It could therefore be a big risk to disqualify Trump from the election over his role in the storming of the Capitol, which half of Americans are not even convinced was an insurrection at all.
If the lawsuits in one or two states are nevertheless successful and ultimately contribute to Trump’s election defeat in 2024, the United States would never know what the outcome would have been if the American people had decided the issue themselves. The accusation will quickly become louder that the election was ultimately decided by the courts.
Or, as the liberal US professor Noah Feldman puts it in his guest article for “Bloomberg” expresses: “Donald Trump is obviously unfit to be president. But it’s up to the voters to prevent it. Magic words from the past will not save us.”
Sources: “NY Times“, “Washington Post“, “CNN“, “Atlantic“, “WSJ“, “Indictment text Colorado“, “Monmouth University Survey“, “Bloomberg“