I’m not quite sure what I think about this push to invoke the 14th Amendment to keep Trump off the ballot. It certainly seems to be straightforwardly correct on the merits. But whether it’s politically viable — or wise — is still unresolved for me. Would it save democracy or destroy it?
TPM takes a look at the inside of the move to do this:
Those on the vanguard of invoking the seldom-used Disqualification Clause of the 14th Amendment, under which Trump’s role in Jan. 6 would preclude him from running for office again, acknowledge that what they’re doing is unprecedented in the modern era. But so is a president attempting to foment an insurrection.
“It’s Donald Trump’s fault if some people end up not being able to vote for him,” Gerard Magliocca, an Indiana University law professor who specializes in the Disqualification Clause, told TPM. “He took that right away from them by his misconduct.”
In interviews with TPM, some of the outside groups leading the charge to enforce the Disqualifications Clause acknowledged the legal realities and complexities involved in disqualifying a major presidential candidate in a country where each state runs its own election and has its own disqualification process. But they also hew to the belief that Trump’s attempt to stay in power against the will of the people not only should bar him from further office, but already does under the Constitution.
Their plans involve a mixture of public campaigning to apply pressure on the state-level secretaries of state and election boards who decide matters of disqualification. Accustomed to asking judges to rule on petitions involving the age or citizenship of local candidates, good government groups are now crafting bids to have these officials disqualify Trump.
Citizens for Responsibility and Ethics in Washington (CREW) and Free Speech for People (FSFP), among the groups most active on the Disqualification Clause, are tight-lipped about where they plan to file formal legal challenges to disqualify Trump, though FSFP sent letters this week asking officials in Florida, Ohio, Wisconsin, New Hampshire and New Mexico to drop Trump from the ballot. That, in turn, has prompted some other states to start examining the process.
Getting Underway
The disqualification clause has been the subject of renewed buzz since two conservative scholars — associated with the Federalist Society, no less — published a preview paper in the University of Pennsylvania Law Review endorsing the argument that Trump is disqualified from running.
That buy-in forced a closer look from observers and even elected officials who might’ve been predisposed to shrug the argument off as the latest liberal wishcasting.
But while the proposal’s resurgence in the post-Reconstruction era is new, CREW and FSFP have already tested it in court.
FSFP, a Boston-based nonprofit helmed by attorney John Bonifaz, started filing in 2021 to disqualify candidates — including Rep. Marjorie Taylor Greene (R-GA) and former Rep. Madison Cawthorn (R-NC) — from the ballot.
The group’s legal director, Ron Fein, told TPM that FSFP is gearing up for a legal fight to disqualify Trump in several states before the Republican primaries begin.
“We’re pursuing both advocacy to persuade secretaries of state to disqualify Trump on their own and we will also be filing formal legal challenges to Trump’s candidacy in multiple states,” Fein said.
FSFP has already gotten part of its plans underway.
Their strategy is two-pronged: keep up public pressure via letters to secretaries of state, election boards, and public protests at state election offices.
But it’s the second part that will constitute the real test of the process. That will come down to formal petitions and lawsuits that the group is planning to file, asking whichever the relevant authority is in a given state to find that Trump is disqualified. Fein said that that will require FSFP to prove not only that Trump’s effort to reverse his loss in 2020 qualified as an insurrection, but that he undertook real acts to “engage” in it — thereby meeting a Reconstruction-era legal standard.
“Our predecessors wrote Section 3 of the 14th Amendment of the Constitution because they learned a bloody lesson from the Civil War,” Fein said. “When someone foments a violent insurrection against the U.S., they can’t be trusted with public office.”
51 Different Elections
Many of the same archaic processes which Trump tried to use to his advantage in his attempt to undermine the 2020 election results also make disqualification difficult. Each state runs its own election for presidential electors, and each one has its own disqualification procedures to navigate. The effect is that piecemeal, individual efforts are less likely to achieve an outsized effect than organizations which can coordinate nationally.
They also only need to knock Trump off a few swing state ballots before the electoral math becomes very difficult for him, meaning they don’t have to succeed in every state to effectively disqualify him nationally. That math will help inform the plan, as will homing in on venues where the challengers will have the latitude to collect and display evidence — something judges have blocked in other disqualification cases.
“That very consideration is part of what informs where we’ll file — we want to file in a forum that will allow you to do those sorts of procedures,” Nikhel Sus, CREW’s director of strategic litigation, told TPM, adding: “We have trial plans, plans to put on evidence and witnesses. Just having some sort of evidentiary hearing or trial has value in and of itself.”
In some states, that’ll play out in administrative court. In others, normal state court.
Sus told TPM that the group will file lawsuits challenging Trump’s eligibility on the Republican primary ballot by the end of this year.
That effort will encompass the idiosyncrasies of the various states, and will entail “a mix of both” complaints through election officials and complaints through the courts, befitting each state’s requirements.
In North Carolina, for example, former state Supreme Court justice Robert Orr found himself combing through pages from an 1869 case testing the Disqualification Clause to see how it might apply.
“The intent of the framers of that constitutional amendment, that provision in the 14th Amendment, was to send a very distinct message not only to all the old Confederates, but to those who potentially might try it again,” Orr told TPM.
Orr worked with FSFP on a bid to disqualify Cawthorn, and said he expects bids against Trump in his state.
Mixed Early Results
Most of those attempts, made after Jan. 6 to disqualify various Big Lie-friendly Republicans — Reps. Andy Biggs (R-AZ) and Paul Gosar (R-AZ), Mark Finchem, the GOP nominee for Arizona Secretary of State, Green and Cawthorn — were unsuccessful.
In the Georgia and Arizona cases, judges blocked the challengers from obtaining and displaying the evidence on which the disqualification was predicated. That made it very difficult to prove that the lawmakers had engaged in an insurrection.
In the one successful disqualification so far — CREW’s effort to remove Otero County, New Mexico commissioner Couy Griffin, who joined the mob on Jan. 6, from his post — the challengers put on an extensive trial with witnesses and video footage.
Some of the problems that plagued FSFP in these cases would be unlikely to so thoroughly bedevil attempts to disqualify Trump. Along with the groups’ wariness about the evidentiary roadblocks and plans to file where they can put on a whole trial, much more of Trump’s actions before and during Jan. 6 are in the public record. The House Jan. 6 committee and subsequent indictments create a comprehensive record of what exactly Trump did.
These groups would also simply have more bites at the apple with Trump. Instead of relying on one judge, or at best, one series of courts, they’ll challenge Trump’s qualification in a wide swath of states with an eye to where they’ll most likely find success.
“The odds that everyone is gonna agree that he’s eligible are pretty low,” Magliocca said. “As long as you have somebody saying he’s ineligible, this is going to the Supreme Court, and probably pretty quickly.”
I dunno. It’s such a tremendous threat that it seems that any legal and constitutional means to keep him out of the White House again is justified. But what then? I’m not convinced that this particular cure wouldn’t end up being worse than the disease. I guess I’ll need to watch this play out and see where it leads.