Left and Right Legal Scholars Challenge Trump Eligibility on 14th Amendment, So-called ‘Insurrection’

Legal scholars on both the left and the right are launching an attempt to disqualify former President Donald Trump from the 2024 presidential election on the basis of the claim that he engaged in s0-called “insurrection,” as cited by the Fourteenth Amendment.

Some Democrats have argued for years that Trump should be barred from running for office again. That was the object of the failed second impeachment of Trump, which was tried in the Senate after he had already left office in 2021 (he was aqcuitted).

Others, such as former Clinton administration labor secretary Robert Reich, have claimed that Section 3 of the Fourteenth Amendment applies to Trump. That section bars those who have previously held public office, and “have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof,” from holding either state or federal office again.

Reich was recently joined by legal scholars William Baude and Michael Stokes Paulsen, both Never Trump members of the otherwise conservative Federalist Society, who wrote in the University of Pennsylvania Law Review that Section 3 “disqualifies former President Donald Trump, and potentially many others, because of their participation in the attempted overthrow of the 2020 presidential election.”

(They note: “In describing these events, we rely generally here and throughout on the public record assembled by the House January 6th Committee.” They do not note that the committee was one-sided, that it was often inaccurate in its public statements, and that it destroyed much of the evidence it gathered, when that evidence did not help it implicate Trump.)

Harvard Law School professor Noah Feldman, a liberal who testified against Trump in the first impeachment trial, responded by declaring that, “alas,” Trump is still eligible, based on the limited precedent interpreting Section 3. He added: “Donald Trump is manifestly unfit to be president. But it’s up to voters to block him. Magic words from the past won’t save us.”

This weekend, legal scholars J. Michael Luttig and Laurence H. Tribe joined the chorus, in The Atlantic. They cited the fact that Trump has been indicted at both the state and federal levels for various crimes, including a federal indictment in Washington, D.C., and a state indictment for Fulton County, Georgia, for his efforts to challenge the 2020 election results.

(Notably, Tribe called for Trump to be impeached on the day he took office, and floated various other theories that would allow for Trump to be impeached. Tribe also advised Democrats to use the unusual tactic of withholding articles of impeachment from the Senate once they had been passed by the House, during the first failed impeachment of President Trump in 2019-2020.)

Republican presidential rival Gov. Asa Hutchinson of Arkansas also weighed in on CNN’s State of the Union on Sunday morning, arguing that Trump could be disqualified either through a lawsuit at the federal level, or through a ruling on a state’s decision not to allow Trump to appear on that state’s ballot, citing Section 3 of the Fourteenth Amendment as a basis for that decision.

But George Washington University legal scholar Jonathan Turley poured cold water on the effort this weekend, in an op-ed in The Hill. Calling the attempted use of Section 3 of the Fourteenth Amendment a “legal urban legend,” Turley notes that the events of January 6th, 2021, however regrettable, were not an “insurrection.” “A political protest became a political riot,” he concludes.

Turley adds that in all of his indictments thus far, Trump has not been charged with incitement, much less insurrection or sedition, and that his delay in responding to the riot — which many critics denounced — would not constitute active support for an insurrection.

Trump leads his Republican rivals by wide margins, and is ahead of incumbent President Joe Biden in some polls.