Can Trump legally run for president again? Here’s the conservative case against him | Opinion

With Donald Trump far ahead in the polls for the Republican presidential nomination, we must face an important question: Does the Constitution make Trump ineligible to run for president?

Section 3 of the 14th Amendment explicitly precludes anyone who has previously taken an oath of office from holding public office if they have “engaged in insurrection or rebellion” against the United States. Congress, by a two-thirds vote, can remove this disability.

The indictments against Trump in both federal court in Washington, D.C., and in state court in Georgia leave little doubt that Trump attempted to overturn the results of the 2020 presidential election. Whatever the outcome of the criminal trials, whenever they occur, there is no question that Trump was doing everything he possibly could to stay in power.

Trump certainly encouraged and did nothing to stop the storming of the Capitol on January 6, 2021. The issue as to whether his conduct precludes him from holding federal office again will inevitably arise.

Section 3 of the 14th Amendment was adopted to keep those who had participated on the rebel side of the Civil War from holding federal office. Quickly after its adoption, there were a number of instances in which it was enforced, but Congress granted amnesty to former Confederates in 1872 limiting its application.

There are many questions that must be answered in deciding whether Section 3 prevents Trump from being president. Who makes the determination of whether a person engaged in insurrection or rebellion? The constitutional provision doesn’t say. Some state election officials might determine that Trump is ineligible to be on the ballot, which will inevitably lead to lawsuits from his supporters. There will also likely be suits against state election officials to keep Trump off the ballot on the ground that he is ineligible to be elected.

A year ago, a state court removed Couy Griffin from his position as a New Mexico county commissioner because of his participation in the Jan. 6 events. Similar litigation is sure to ensue over Trump’s eligibility, ultimately resulting in resolution from the Supreme Court.

There is also the question of the proof needed to invoke Section 3. Must there be a conviction of Trump? If so, for what offenses? Nothing in the constitutional provision suggests that its application requires a criminal conviction or proof beyond a reasonable doubt. In fact, after the Civil War, individuals were excluded from serving in Congress based on their support for the Confederacy even though there had not been a criminal conviction.

William Baude of the University of Chicago Law School and Michael Stokes Paulsen of St. Thomas Law School, two conservative law professors who are both self-professed originalists, recently declared in a published article that “Section Three requires no prior criminal law conviction, for treason or any other defined crime, as a prerequisite for its disqualification to apply.”

Indeed, the conclusion of these prominent conservative professors is that “the case is not even close. All who are committed to the Constitution should take and say so”: Trump engaged in insurrection and is ineligible for the presidency.

Yet it is disquieting to think of courts keeping someone with substantial public support from running for president, let alone a former president of the United States. That seems profoundly antidemocratic.

But the Constitution is inherently antidemocratic in that it limits what popularly elected government officials may do. It also imposes other restrictions on who may be president, such as requiring that the person be 35 years old and a “natural born citizen.” Those who drafted and ratified the 14th Amendment made a conscious choice to limit democracy in the future by saying that those who engaged in insurrection or rebellion could never again hold government office.

Of course, it would be unprecedented for this clause to be used to keep Trump from running for president. But it is also unprecedented for a president to attempt to subvert the results of an election to stay in power and foment the storming of the Capitol.

If Trump is convicted in federal or state court of the crimes with which he has been charged, he should be deemed ineligible to run for president. Even if he is not convicted, there is a compelling case that the Constitution bars him from ever holding office again.

This story was originally published August 24, 2023 at 11:17 AM with the headline "Can Trump legally run for president again? Here’s the conservative case against him | Opinion."