Former U.S. President Donald Trump spoke in Mesa, Arizona on October 9, 2022.
Within hours of Donald Trump’s official announcement that he was entering the 2024 presidential race, legal efforts to prevent the former president from seeking reelection kicked into gear.
Democratic members of Congress are considering whether to back a plan to adopt a federal law that would disqualify Trump from holding office, while advocacy groups are urging state officials to bar Trump in their own capacity. Additionally, groups that have already sued the former president multiple times in the past (such as CREW), have vowed to challenge Trump’s candidacy in court.
Democratic Congressman from Rhode Island Rep. David Cicilline circulated a “dear colleague letter” on Tuesday urging his fellow representatives to support legislation that would bar former President Trump from ever holding federal office in the future.
Rep. David Cicilline (a former Trump impeachment manager) is circulating a letter to Dems rounding up support for legislation to bar Trump from office under the 14th Amendment, per copy I obtained: pic.twitter.com/BsDNbhjPUg
— Nicholas Wu (@nicholaswu12) November 16, 2022
The legislation is grounded in the principle that the Fourteenth Amendment expressly disqualifies individuals who took part in an insurrection from holding office.
Cicilline detailed the relevant portion of the Amendment in his letter:
Under Section 3 of the Fourteenth Amendment of the U.S. Constitution, “No person shall … hold any office, civil or military, under the United States … who, having previously taken an oath, as a member of Congress, or as an officer of the United States … 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.”
The Congressman went on to argue that the “Constitution clearly intended to bar insurrectionists from holding high office in the United States”— which appears to be a fair reading of the language itself.
Less clear, however, is whether Trump sufficiently “engaged in insurrection or rebellion” to the extent that his actions would trigger this prohibition. Cicilline made the argument that “the January 6th Committee Hearings, the 2021 impeachment trial, and other reporting” have proved “that Donald Trump engaged in insurrection on January 6th with the intention of overturning the lawful 2020 election results.”
Cicilline said that his proposed legislation “details testimony and evidence demonstrating how Donald Trump engaged in insurrection against the United States,” and “specifically details how Donald Trump engaged in insurrection when he helped to plan and encouraged the insurgence on January 6th despite knowing that the election results were lawful.”
Although the dear colleague letter does not provide many specifics, it said Trump engaged in the following behavior which would render him ineligible to hold office:
attempted to intimidate state and federal officials when they did not support his false claims and unlawful plans
tried to manipulate Mike Pence into unlawfully refusing to certify the election results, despite Mr. Pence’s and legal advisors’ assertion that he held no such authority
supported the violent insurrection at the Capitol on January 6th, refusing for hours to denounce or act against the mob and putting thousands of lives in danger.
Cicilline has represented Rhode Island’s 1st congressional district since 2011, and chairs both the House Judiciary Committee’s Subcommittee on Antitrust, Commercial and Administrative Law and the House Middle East, North Africa, and Global Counterterrorism subcommittee. Cicilline was also appointed as an impeachment manager for the impeachment of then-president Trump in 2021.
Quite a bit of uncertainty surrounds Cicilline’s premise that Trump is constitutionally barred from holding office. Not only it is unclear whether facts that have already been established (or those that may still be established) are sufficient to trigger the Fourteenth Amendment’s ban, the procedure by which such a ban would be carried out is also ambiguous.
Running for president is distinct from holding the office of president. Furthermore, each state maintains its own elections, its own requirements for appearing on a presidential ballot, and its own system for handling disqualification of candidates.
As law professor Derek Muller explained in a recent post on the Election Law Blog:
It’s best to think of four separate stages of a presidential candidacy: running for office, appearing on the ballot for the presidential preference primary, appearing on the ballot for the general election, and the votes of presidential electors. And for any challenge (not so subtly presaged by many, many left-of-center attorneys out there) to Trump’s candidacy, the timing and context matters.
To exclude a candidate from the presidential ballot, an opponent in most states must file a petition before some sort of judicial body (however, the specifics differ state by state).
Law professor Gerard Magliocca provided some examples of the state-specific procedural variations in an email to Law&Crime on Wednesday:
In some states, voters can raise a challenge to a candidate’s eligibility in a lawsuit. (For example, Georgia and North Carolina). In other states, the state Secretary of State makes the decision and then the candidate (if excluded) can sue and challenge an exclusion. And then there are other states where only another candidate can bring a challenge.
In fact, the New York City bar formed a task force in the wake of the events of January 6, 2021 to address the specific issue of whether the “Disqualification Clause” of the Fourteenth Amendment would indeed bar Trump from reelection. Former appellate Judge Marcy L. Kahn led the task force and authored its report.
Kahn provided background context: “the Disqualification Clause was enacted as a direct response to the actions of Confederate officials during the Civil War; there were related subsequent events and acts of Congress in the decades that followed, but then the Disqualification Clause remained largely dormant throughout the 20th Century and the first two decades of the 21st century.”
Later, in 1872, at the request of President Ulysses S. Grant, Congress lifted the disqualification from approximately 150,000 former Confederate officials in an attempt to unify the nation. In 1919, Congress refused to seat Rep. Victor Berger from office after Berger criticized American involvement in World War I. Berger was convicted under the Espionage Act, then had his conviction overturned by the Supreme Court. Eventually, Berger won his seat again and he served three terms in Congress as a representative from Wisconsin.
In the immediate aftermath of the Watergate scandal, Congress passed joint resolutions in 1972 posthumously granting amnesty to Robert E. Lee and Jefferson Davis, thereby retroactively removing their disqualification under the clause.
North Carolina Rep. Madison Cawthorn (R) relied on the Lee/Davis resolutions when his qualification to hold office was challenged in 2021. In 2022, a fractured court declined to block Cawthorn’s candidacy (though he lost re-election). Likewise, Georgia Rep. Marjorie Taylor Greene (R) defeated legal challenges to her candidacy in 2022.
Ultimately, the task force recommended that Congress adopt a federal civil enforcement statute to “eliminate ambiguity and confusion surrounding Section 3” and avoid a potential “constitutional crisis in the next cycle of elections.” That statute is precisely the measure for which Cicilline advocates in his letter to fellow legislators.
Absent targeted federal legislation and left in the hands of individual states, a final decision on Trump’s disqualification is likely to take months if not years.
Prof. Muller predicts:
But, it is my assumption (of course, sure to be wrong!) that there will be nothing close to a merits determination by any tribunal anywhere until, perhaps, January 2024, after nominating papers have been filed for the earliest primary states.
[Photo by Mario Tama/Getty Images]
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