Fourteenth Amendment (US Constitution)

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      Is Trump Disqualified From Holding Office? The Question Matters, Beyond Him.

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      State courts in Colorado, Michigan, Minnesota and elsewhere have so far declined to rule in favor of challenges asserting that Donald Trump should be disqualified from holding the presidency again under Section 3 of the 14th Amendment. (Cases in Michigan and Colorado have been appealed.)Challengers assert that Mr. Trump is barred because, as stated in Section 3, he was an officer of the United States who, after taking an oath to support the Constitution, “engaged in insurrection or rebellion against” the country, or gave “aid or comfort to the enemies thereof,” before and during the Jan. 6, 2021, attack on the Capitol.Mr. Trump and his campaign have called this claim an “absurd conspiracy theory” and efforts to bar him “election interference.” Some election officials and legal scholars — many of them otherwise opposed to the former president — have also been critical of the efforts.The Georgia secretary of state, Brad Raffensperger, writes that invoking Section 3 “is merely the newest way of attempting to short-circuit the ballot box.” Michael McConnell, a former judge and professor at Stanford Law School, claims that keeping Mr. Trump off the ballot on grounds that are “debatable at best is not something that will be regarded as legitimate.”We are having trouble retrieving the article content.Please enable JavaScript in your browser settings.We are confirming your access to this article, this will take just a moment. However, if you are using Reader mode please log in, subscribe, or exit Reader mode since we are unable to verify access in that state.Confirming article access.If you are a subscriber, please  More

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      Colorado Supreme Court Agrees to Take Up Trump 14th Amendment Case

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      A state judge ruled last week that the former president had engaged in insurrection on Jan. 6, 2021, but allowed him to remain on the ballot.The Colorado Supreme Court agreed on Tuesday to take up an appeal of a state judge’s ruling allowing former President Donald J. Trump to remain on the state’s primary ballot, in a nationwide battle over his eligibility to run for president again.Plaintiffs, citing Mr. Trump’s efforts to overturn the 2020 election, argued that Section 3 of the 14th Amendment disqualifies anyone who “engaged in insurrection or rebellion” against the Constitution after having taken an oath to support it.Judge Sarah B. Wallace ruled that Mr. Trump had engaged in insurrection with his actions before and during the Jan. 6, 2021, attack on the U.S. Capitol. But she allowed Mr. Trump to remain on the ballot anyway on the narrow grounds that the disqualification clause of the 14th Amendment did not apply to the president of the United States.A spokesman for Mr. Trump, Steven Cheung, said in a statement after Judge Wallace’s ruling last week that it was “another nail in the coffin of the un-American ballot challenges.”The plaintiffs filed their appeal to the Colorado Supreme Court on Monday evening, and the court agreed to hear the case on an accelerated timetable. Mr. Trump’s lawyers must file a brief in the case by next Monday, and oral arguments are scheduled to begin on Dec. 6.Jena Griswold, the Colorado secretary of state and a Democrat, has previously said she would follow whatever ruling was in place on Jan. 5, 2024, the state’s deadline for certifying candidates on the ballot for the March 5 primary.Mario Nicolais, a lawyer for the plaintiffs, said that the fast pace of the court schedule indicated that “the Supreme Court has taken this with the seriousness that it requires,” adding that “we are confident that we will come away from the Colorado Supreme Court with a victory and that he will be barred from being on the ballot.” More

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      Trump Can Stay on GOP Primary Ballot in Michigan, Judge Rules

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      The ruling notches a preliminary victory for Donald Trump in a nationwide battle over his eligibility to run for president again, even as he faces a wave of legal scrutiny in other cases.A state judge in Michigan partly rejected an effort to disqualify former President Donald J. Trump from running for president in the state, ruling that Mr. Trump will remain on the ballot in the Republican primary, and that the state’s top elections official does not have the authority alone to exclude him from the ballot.But the judge appeared to leave the door open for a future battle over Mr. Trump’s eligibility as a candidate in the general election, saying that the issue “is not ripe for adjudication at this time.”The ruling notches a preliminary victory for Mr. Trump in a nationwide battle over his eligibility to run for president again, even as he faces a wave of legal scrutiny in other cases — including 91 felony charges in four different jurisdictions.Plaintiffs across the country have argued that Mr. Trump is ineligible to hold office again under Section 3 of the 14th Amendment, which disqualifies anyone who “engaged in insurrection or rebellion” against the Constitution after having taken an oath to support it, citing his efforts to overturn the 2020 election.These efforts have played out as Mr. Trump engages in ever-darker rhetoric that critics say echoes that of fascist dictators, vowing to root out his political opponents like “vermin.”Steven Cheung, a spokesman for Mr. Trump’s 2024 campaign, said in a statement that the campaign welcomed the ruling and “anticipates the future dismissals of the other 14th Amendment cases.”We are having trouble retrieving the article content.Please enable JavaScript in your browser settings.We are confirming your access to this article, this will take just a moment. However, if you are using Reader mode please log in, subscribe, or exit Reader mode since we are unable to verify access in that state.Confirming article access.If you are a subscriber, please  More

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      Trump Wants Us to Know He Will Stop at Nothing in 2025

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      Over the past few weeks, we’ve gotten a pretty good idea of what Donald Trump would do if given a second chance in the White House. And it is neither exaggeration nor hyperbole to say that it looks an awful lot like a set of proposals meant to give the former president the power and unchecked authority of a strongman.Trump would purge the federal government of as many civil servants as possible. In their place, he would install an army of political and ideological loyalists whose fealty to Trump’s interests would stand far and above their commitment to either the rule of law or the Constitution.With the help of these unscrupulous allies, Trump plans to turn the Department of Justice against his political opponents, prosecuting his critics and rivals. He would use the military to crush protests under the Insurrection Act — which he hoped to do during the summer of 2020 — and turn the power of the federal government against his perceived enemies. “If I happen to be president and I see somebody who’s doing well and beating me very badly, I say, ‘Go down and indict them.’ They’d be out of business. They’d be out of the election,” Trump said in a recent interview on the Spanish-language network Univision.As the former president wrote in a disturbing and authoritarian-minded Veterans Day message to supporters (itself echoing a speech he delivered that same to day to supporters in New Hampshire): “We pledge to you that we will root out the Communists, Marxists, Fascists, and Radical Left Thugs that live like vermin within the confines of our country, lie, steal, and cheat on Elections, and will do anything possible, whether legally or illegally, to destroy America, and the American dream.”Trump has other plans as well. As several of my Times colleagues reported last week, he hopes to institute a program of mass detainment and deportation of undocumented immigrants. His aides have already drawn up plans for new detention centers at the U.S.-Mexico border, where anyone suspected of illegal entry would be held until authorities have settled the person’s immigration status. Given the former president’s rhetoric attacking political enemies and other supposedly undesirable groups like the homeless — Trump has said that the government should “remove” homeless Americans and put them in tents on “large parcels of inexpensive land in the outer reaches of the cities” — there’s little doubt that some American citizens would find themselves in these large and sprawling camps.Included in this effort to rid the United States of as many immigrants as possible is a proposal to target people here legally — like green-card holders or people on student visas — who harbor supposedly “jihadist sympathies” or espouse views deemed anti-American. Trump also intends to circumvent the 14th Amendment so that he can end birthright citizenship for the children of unauthorized immigrants.In the past, Trump has gestured at seeking a third term in office after serving a second four-year term in the White House. “We are going to win four more years,” Trump said during his 2020 campaign. “And then after that, we’ll go for another four years because they spied on my campaign. We should get a redo of four years.” This too would violate the Constitution, but then, in a world in which Trump gets his way on his authoritarian agenda, the Constitution — and the rule of law — would already be a dead letter.It might be tempting to dismiss the former president’s rhetoric and plans as either jokes or the ravings of a lunatic who may eventually find himself in jail. But to borrow an overused phrase, it is important to take the words of both presidents and presidential candidates seriously as well as literally.They may fail — in fact, they often do — but presidents try to keep their campaign promises and act on their campaign plans. In a rebuke to those who urged us not to take him literally in 2016, we saw Trump attempt to do what he said he would do during his first term in office. He said he would “build a wall,” and he tried to build a wall. He said he would try to keep Muslims out of the country, and he tried to keep Muslims out of the country. He said he would do as much as he could to restrict immigration from Mexico, and he did as much as he could, and then some, to restrict immigration from Mexico.He even suggested, in the lead-up to the 2016 presidential election, that he would reject an election defeat. Four years later, he lost his bid for re-election. We know what happened next.In addition to Trump’s words, which we should treat as a reliable guide to his actions, desires and preoccupations, we have his allies, who are as open in their contempt for democracy as Trump is. Ensconced at institutions like the Heritage Foundation and the Claremont Institute, Trump’s political and ideological allies have made no secret of their desire to install a reactionary Caesar at the head of the American state. As Damon Linker noted in his essay on these figures for the Opinion section, they exist to give “Republican elites permission and encouragement to do things that just a few years ago would have been considered unthinkable.”Americans are obsessed with hidden meanings and secret revelations. This is why many of us are taken with the tell-all memoirs of political operatives or historical materials like the Nixon tapes. We often pay the most attention to those things that have been hidden from view. But the mundane truth of American politics is that much of what we want to know is in plain view. You don’t have to search hard or seek it out; you just have to listen.And Donald Trump is telling us, loud and clear, that he wants to end American democracy as we know it.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

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      Trump 14th Amendment Disqualification Trial: What to Know About the Colorado Case

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      The lawsuit in Denver is one of several across the country arguing that former President Donald J. Trump is ineligible to hold office again.The continued existence of former President Donald J. Trump’s 2024 campaign is being litigated this week in an unassuming courtroom in Colorado.The trial stems from a lawsuit brought by voters in the state who argue that Mr. Trump is ineligible to hold office under the 14th Amendment of the Constitution because of his actions before and during the Jan. 6, 2021, attack on the Capitol. And the Colorado disqualification case isn’t isolated. Oral arguments stemming from a similar suit, in Minnesota, were held on Thursday.Here is a look at the Colorado case and beyond.What is the background on the Colorado lawsuit?It was filed in September in a state district court in Denver by six Colorado voters — four Republicans and two independents — who are suing with the help of the watchdog group Citizens for Responsibility and Ethics in Washington.These voters argue that Mr. Trump’s presence on the Republican primary ballot next year would harm them by siphoning support from their preferred candidates and, if he won the nomination, by depriving them of the ability “to vote for a qualified candidate in the general election.”They are demanding that the Colorado secretary of state not print Mr. Trump’s name on the ballot, and are asking the court to rule that Mr. Trump is disqualified in order to end any “uncertainty.”What is the 14th Amendment, and what does it say?The Colorado case specifically concerns Section 3 of the 14th Amendment, which says: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. But Congress may by a vote of two-thirds of each House, remove such disability.The central questions are whether the 14th Amendment applies to the presidency; whether Mr. Trump’s behavior before and on Jan. 6 constitutes “engaging in insurrection or rebellion against” the Constitution; and whether election officials or the courts can deem a person ineligible under Section 3 without specific action by Congress identifying that person.Constitutional experts have emphasized in interviews with The New York Times that the answers to these questions are not simple or self-evident.In public writings, some scholars have argued that Mr. Trump is ineligible. In an academic article, the conservative law professors William Baude and Michael Stokes Paulsen concluded: “It is unquestionably fair to say that Trump ‘engaged in’ the Jan. 6 insurrection through both his actions and his inaction.” Others have argued the opposite, with the law professors Josh Blackman and Seth Barrett Tillman saying in a recent draft paper that they see “no sound basis” for Mr. Baude’s and Mr. Paulsen’s conclusions.What is the plaintiffs’ side saying?From Monday through Wednesday, lawyers for the plaintiffs — the six Colorado voters — called seven witnesses:Daniel Hodges, a Washington, D.C., police officer, and Winston Pingeon, a Capitol Police officer, who were at the Capitol on Jan. 6. They testified that rioters had come equipped with tactical gear and had made it clear that they believed themselves to be acting on Mr. Trump’s behalf. On cross-examination, lawyers for Mr. Trump sought to distance him from the rioters, noting that the officers could not know that any individual rioter had heard his speech.Representative Eric Swalwell, Democrat of California, who said lawmakers had read Mr. Trump’s Twitter posts during the attack and saw them as connected “to our own safety in the chamber and also the integrity of the proceedings.” On cross-examination, lawyers for Mr. Trump quoted Mr. Swalwell’s own Twitter post urging Democrats to “fight” against abortion restrictions and asked if that was a call for violence; Mr. Swalwell said no.William C. Banks, a law professor at Syracuse University and an expert on presidential authority in national security. He testified that Mr. Trump could have deployed National Guard troops without a request or permission from local officials.Peter Simi, a professor of sociology at Chapman University and an expert on political extremism. He testified that the far right used “doublespeak” — language that insiders understood to be calling for violence but that maintained plausible deniability. For years, he said, Mr. Trump built credibility with members of groups like the Proud Boys and Oath Keepers, such that they saw him as an ally speaking to them in that way.Gerard Magliocca, a law professor at Indiana University and an expert on Section 3 of the 14th Amendment. He said that when the amendment was ratified, “insurrection” was understood to refer to “any public use of force or threat of force by a group of people to hinder or prevent the execution of the law,” and “engaged” meant “any voluntary act in furtherance of an insurrection, including words of incitement.”Hilary Rudy, a deputy elections director in the Colorado secretary of state’s office. She testified that the secretary of state had a legal obligation to grant ballot access only to qualified candidates, that courts could play a legitimate role in determining who was qualified, and that the office would abide by whatever the court decided.The plaintiffs’ lawyers plan to call one additional witness Friday afternoon.What is Trump’s side saying?As of Thursday, lawyers for Mr. Trump had called six witnesses:Kashyap Patel, a former chief of staff at the Defense Department. He testified that Mr. Trump had pre-emptively authorized the deployment of 10,000 to 20,000 National Guard troops to keep the peace on Jan. 6, and that they were absent because the mayor of Washington had not requested them. Under cross-examination, Mr. Patel said he did not know of any document showing Mr. Trump’s authorization.Katrina Pierson, a former spokeswoman for Mr. Trump’s campaign, who described internal disagreements over who should speak at Mr. Trump’s Jan. 6 rally. She testified that Mr. Trump nixed most of the planned speakers, including the most incendiary ones. She also said he had expressed a desire for 10,000 National Guard troops.Amy Kremer, an organizer of the Jan. 6 rally on the Ellipse, called the rally attendees “freedom-loving citizens” and “happy warriors,” and said she had seen no indication of violence or violent intent while Mr. Trump was speaking. Under cross-examination, she acknowledged that she had been inside the area that required magnetometer scans, and that she would not have seen anything that happened outside that area.Thomas Van Flein, general counsel and chief of staff to Representative Paul Gosar, Republican of Arizona. He testified that the rally crowd was peaceful, but acknowledged that he had left before Mr. Trump spoke.Tom Bjorklund, who is the treasurer of the Colorado Republican Party but testified as a private citizen, attended Mr. Trump’s speech and then went to the Capitol, where he witnessed the riot but did not enter the building himself. He said in the first part of his testimony that he had not seen any violence from Trump supporters. Later, he said he had watched people break windows, but advanced the conspiracy theory that it was a false-flag operation by “antifa.” He also said he had understood Mr. Trump’s “instructions” to be for peaceful protest.Representative Ken Buck, Republican of Colorado, testified that he believed the Jan. 6 committee’s report — which the plaintiffs have frequently cited as evidence in their case — was one-sided in its assessment of Mr. Trump’s “culpability” in the attack.Mr. Trump’s team plans to call one more witness Friday morning: an expert who will offer a different interpretation from Professor Magliocca’s of the wording in Section 3 of the 14th Amendment.What has the judge said?Before the trial began on Monday, Mr. Trump’s team made several motions to dismiss the case. Judge Sarah B. Wallace, who is overseeing the trial, rejected them.On Wednesday, after the plaintiffs had finished calling most of their witnesses, Mr. Trump’s lawyers requested a “directed verdict” — a conclusion, before the defense had called any witnesses, that no legally sufficient basis existed for the plaintiffs to prevail. They argued that even if the plaintiffs’ claims were accepted as fact, that would not legally justify disqualifying Mr. Trump. His words, they said, did not meet the Supreme Court’s standard for incitement and therefore were protected by the First Amendment.Judge Wallace denied the request, but emphasized that her denial should not be construed as a ruling on the legal questions involved — including whether Mr. Trump had “engaged in insurrection” as the 14th Amendment meant that phrase, and whether the First Amendment limited how the 14th could be applied.Rather, she said she was denying the request because in order to grant it, “I would have to decide many legal issues that I am simply not prepared to decide today.”What happens next?It is not clear how long it will take for Judge Wallace to rule after the trial ends on Friday.However, the trial is being conducted under an expedited process with the goal of having a final resolution before a January deadline for the Colorado secretary of state to certify who is on the primary ballot — and everyone involved understands that her initial ruling needs to come with enough time for appeals to be resolved, too.The United States Supreme Court is expected to have the final say.Chris Cameron More

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      14th Amendment Trump Disqualification Trial Begins in Colorado

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      While some prominent constitutional experts argue that a clause in the amendment applies to former President Donald J. Trump after Jan. 6, that view is far from universal among legal scholars.A courtroom in Denver will host, starting Monday morning, something the nation has never seen: a trial to determine whether a major party’s likely presidential nominee is eligible to be president at all.The lawsuit, filed in September by six Colorado voters with the help of a watchdog group, Citizens for Responsibility and Ethics in Washington, argues that former President Donald J. Trump is ineligible to hold office again under Section 3 of the 14th Amendment. That section disqualifies anyone who “engaged in insurrection or rebellion” against the Constitution after having taken an oath to support it.The plaintiffs say that Mr. Trump’s efforts to overturn the 2020 election — including his actions before and while his supporters stormed the Capitol on Jan. 6, 2021, to try to stop the certification of Joseph R. Biden Jr.’s victory — meet the disqualification criteria.Sarah B. Wallace, the state district court judge presiding over the case, rejected multiple requests from Mr. Trump and from the Colorado Republican State Central Committee in recent weeks to dismiss the case without a trial.Judge Wallace has laid out nine topics to be addressed at the trial, which is scheduled to last all week. They include whether Section 3 of the 14th Amendment applies to presidents; what “engaged” and “insurrection” mean under that section; whether Mr. Trump’s actions fit those definitions; and whether the amendment is “self-executing” — in other words, whether it can be applied without specific action by Congress identifying whom to apply it to.These questions have been debated since the Jan. 6 attack, especially since Mr. Trump announced that he was running for president again, but there is little precedent to help answer them. The 14th Amendment was ratified shortly after the Civil War, and the disqualification clause was originally applied to people who had fought for the Confederacy. The courts have rarely had occasion to assess its modern application, and never in a case of this magnitude.Some prominent constitutional experts — including the conservative law professors William Baude and Michael Stokes Paulsen in an academic article, and the conservative former judge J. Michael Luttig and the liberal law professor Laurence H. Tribe in The Atlantic — have argued that the clause applies to Mr. Trump.But that view is far from universal among legal scholars, and several have told The New York Times over the past few months that the questions are complicated.The court’s list of topics also calls for discussion of Section 3 of the 20th Amendment, which governs what happens if a new president and vice president have not “qualified” by the time they are supposed to take office.The section says, in part, that “Congress may by law provide for the case wherein neither a President-elect nor a Vice President-elect shall have qualified.”Mr. Trump’s lawyers say this means that only Congress can enforce constitutional qualifications for the presidency. Lawyers for the plaintiffs rejected that argument in a brief last week, saying the “plain language” of the amendment — which refers to the “president-elect” — applies only to a person whom has already been elected and has nothing to do with states’ ability to adjudicate candidates’ qualifications.The Colorado lawsuit is one of several efforts around the country to remove Mr. Trump from ballots under the 14th Amendment. Oral arguments in a case in Minnesota are scheduled to begin Thursday, and lawsuits have also been filed in New Hampshire and Michigan. Separately, Democratic legislators in California asked their state’s attorney general last month to seek a court opinion on Mr. Trump’s eligibility.Whatever verdicts come in these cases will not be final. They will almost certainly be appealed by the losing side, and the Supreme Court — which has a 6-3 conservative majority, including three justices appointed by Mr. Trump — is likely to have the final say. More

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      California Lawmakers Push for a Court Ruling on Trump’s Eligibility

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      Nine California legislators asked the state’s attorney general to seek a court opinion on whether former President Donald J. Trump is disqualified from office under the 14th Amendment.Nine California lawmakers asked the state’s attorney general in a letter on Monday to seek a court opinion on whether former President Donald J. Trump should be excluded from Republican primary ballots under the 14th Amendment.The letter is part of an escalating effort across multiple states to establish whether Mr. Trump’s attempts to overturn the 2020 election — including his actions before and during his supporters’ storming of the Capitol on Jan. 6, 2021 — disqualify him from the presidency under the amendment. It says that anyone who “engaged in insurrection or rebellion” against the Constitution after taking an oath to defend it is ineligible to hold office.“The purpose of this letter is to request in haste the office of the attorney general seek the court opinion as to whether or not Donald J. Trump should be removed from the ballot of the presidential primary election scheduled in California on March 5, 2024,” the letter says. It describes Mr. Trump’s actions and tells Attorney General Rob Bonta, “You are uniquely positioned to proactively seek the court’s opinion to confirm Mr. Trump’s inability to hold office given these facts.”Eight members of the California Assembly — Mike Fong, Mike Gipson, Corey Jackson, Alex Lee, Evan Low, Kevin McCarty, Stephanie Nguyen and Philip Ting — and one member of the California Senate, Josh Becker, signed the letter. All nine are Democrats.Mr. Low, who wrote the letter, said that he saw calls for secretaries of state to unilaterally remove Mr. Trump from ballots as politically problematic and arguably antidemocratic, and that ordinary lawsuits would not resolve the question quickly enough. California law requires the secretary of state to announce by Dec. 8 which candidates are eligible for the ballot.“Having one official do it themselves in their own interpretation is politically not expedient, nor does it help on the division of our democracy,” he said, expressing concern about violence from the right if officials acted unilaterally. “This naturally will be seen as a political effort, but again that’s why the court’s opinion will be incredibly important.”Mr. Low said he and the other lawmakers were “trying to not make this a political issue but rather a constitutionality issue.”They believe, based on conversations with legal advisers, that Mr. Bonta has the ability to seek declaratory relief, essentially asking a court to tell him what his legal obligations are outside the context of a traditional lawsuit. The letter did not identify a specific court.A spokeswoman for Mr. Bonta said: “We are aware of the letter and will review the request internally. There is no denying that Donald Trump has engaged in behavior that is unacceptable and unbecoming of any leader — let alone a president of the United States. Beyond that, we have no additional comment.”Even if a court ruled that Mr. Trump were ineligible, it would not definitively resolve the question. Mr. Trump or his campaign would be certain to appeal, and the Supreme Court would most likely have the final say.The argument has been percolating since the Jan. 6 attack but gained traction this summer after two conservative law professors, William Baude of the University of Chicago and Michael Stokes Paulsen of the University of St. Thomas, concluded that Mr. Trump was disqualified. Two other prominent scholars — the conservative former judge J. Michael Luttig and the liberal law professor Laurence H. Tribe — made the same case in The Atlantic.Earlier this month, six Colorado voters filed a lawsuit with the help of the watchdog group Citizens for Responsibility and Ethics in Washington, asking a state court to order the Colorado secretary of state not to print Mr. Trump’s name on primary ballots there. An obscure Republican presidential candidate, John Anthony Castro, is suing separately with the same aim in New Hampshire, and the liberal group Free Speech for People urged several secretaries of state last month to exclude Mr. Trump.The 14th Amendment was written in the context of Reconstruction, and the disqualification clause — Section 3 — was originally used to bar people who had fought for the Confederacy from holding office. The clause’s modern application has not been tested in a case anywhere near as prominent as Mr. Trump’s. The outcome will depend on how the courts answer several questions, including what counts as insurrection and even whether the amendment applies to the presidency.Several constitutional law experts have told The New York Times that they feel unprepared to weigh in or to guess how judges will rule, describing the questions as complex and novel.“I think anybody who says that there’s an easy answer is probably being a little reductive in their analysis,” Anthony Michael Kreis, an assistant professor of law at Georgia State University, said in a recent interview.Shawn Hubler More

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      An About-Face on Whether the 14th Amendment Bars Trump From Office

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      Steven Calabresi, a founder of the Federalist Society, recently — and forcefully — said the former president was disqualified. He has had a change of heart.A little more than a month ago, a law professor who helped found the Federalist Society, the conservative legal group, enthusiastically endorsed a new law review article arguing that Donald J. Trump was ineligible to be president.The article was “a tour de force,” the professor, Steven G. Calabresi, told me. It demonstrated, he said, that Mr. Trump was subject to a provision of the Constitution that bars some officials who have engaged in insurrection from holding government office.“Trump is ineligible to be on the ballot, and each of the 50 state secretaries of state has an obligation to print ballots without his name on them,” said Professor Calabresi, who teaches at Northwestern University.He appeared to be offering considered views, and he elaborated on them in a blog post titled “Trump Is Disqualified From Being on Any Election Ballots.”Last week, in an extraordinary about-face, the professor changed his mind.In a letter to The Wall Street Journal, he said he had been persuaded by an opinion article in that newspaper that the provision — Section 3 of the 14th Amendment — did not apply to Mr. Trump.In that article, Michael B. Mukasey, who served as attorney general under President George W. Bush, focused on a part of the provision that limits its scope to people who had taken an oath to support the Constitution “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.”The only category that even arguably applies to Mr. Trump is “an officer of the United States,” Mr. Mukasey wrote. But that phrase, he asserted, “refers only to appointed officials, not to elected ones.”That proposition is not self-evident, and the 126-page law review article that had set off the discussion, by William Baude of the University of Chicago and Michael Stokes Paulsen of the University of St. Thomas, considered the meaning of “officer of the United States” at length.It concluded that “the ordinary sense of the text” of the Constitution, “the structure and logic of its provisions,” “the evident design to be comprehensive,” “the seeming absurdity of the prospect of exclusion of the offices of president and vice president from triggering the disqualification” and other factors “all convince us that the natural conclusion is the correct one: Section 3 includes in its coverage, or ‘triggering’ language, insurrectionists who once served as president and vice president.”They added a plea for a little common sense: “A reading that renders the document a ‘secret code’ loaded with hidden meanings discernible only by a select priesthood of illuminati is generally an unlikely one.”Steven Calabresi in 2005. Professor Calabresi has reversed his opinion on whether Mr. Trump is eligible for the 2024 election.Jodi Hilton for The New York TimesIn his letter to The Journal, Professor Calabresi said he now agreed with Mr. Mukasey’s take on the relevant part of Section 3, which he called the “disqualification clause.”“Former President Donald Trump isn’t covered by the disqualification clause, and he is eligible to be on the ballot in the 2024 presidential election,” Professor Calabresi wrote. “I am correcting the public record on this important issue by sending you this letter.”Mr. Mukasey’s article was not met with universal approval.“Let me be clear,” Akhil Reed Amar, a law professor at Yale, said last week on his podcast. “This is a genuinely stupid argument.”On Saturday, Professor Calabresi issued another blog post, this one called “Donald Trump Should Be on the Ballot and Should Lose.”“Trump is loathsome, but because of a technicality in the drafting of the disqualification clause of Section 3 of the 14th Amendment, the clause does not apply to Trump,” he wrote, adding: “So, Trump’s name should appear on election ballots in the 2024 presidential election, but I strongly urge my fellow Americans to vote against Trump, almost no matter what else is the alternative.”Professor Calabresi wrote that his thinking had been influenced by a new article posted on Tuesday by two other professors, Josh Blackman of South Texas College of Law Houston and Seth Barrett Tillman of Maynooth University in Ireland, who have long pressed arguments that some provisions of the Constitution do not cover the president.Their article, also 126 pages long, collected and considered what it said was “substantial evidence that the president is not an ‘officer of the United States’ for purposes of Section 3.”It added: “Numerous sources that we cited discussed this issue; no one spoke in a ‘secret code,’ as Baude and Paulsen charge. If we are correct, Trump is not subject to Section 3 at all. If we are right, then states cannot unilaterally remove Trump from the ballot under the authority of Section 3.”Professor Calabresi is, of course, entitled to change his mind. As Justice Felix Frankfurter put it in a 1949 dissent, “Wisdom too often never comes, and so one ought not to reject it merely because it comes late.”In an interview on Saturday, Professor Calabresi said his revised position was the product of study and reflection.“I carefully reread the materials on whether Section 3 of the 14th Amendment applies to Trump,” he said, “and concluded that it most likely does not.”He added that politics had not figured in his thinking. “I will support,” he said, “any Republican or Joe Biden over Trump in the 2024 election.” More