Donald Trump’s disqualification from running for president is front and center of American politics. The U.S. Constitution makes it very clear what qualifies and disqualifies a person who seeks the presidency.

Donald Trump has a qualification problem.

During his presidency, Trump tried to derail the Mueller investigation of Russian interference in the 2016 election. He was impeached twice for obstruction of justice and for inciting an insurrection on the US Capitol. No president of the United States has been scrutinized as much as Donald J. Trump.  Most significantly, Trump led an insurrection on January 6, 2021, the day power was transferred to the incoming president. 

Donald Trump’s participation in events surrounding the January 6 attack on the Nation’s Capitol. The attack on the Capitol is the crux of his qualification problem.   He has been indicted on three criminal conspiracies for his attempt to discount legitimate votes and subvert the election results. This indictment and associated criminal charges may not bar him from office. But a conviction might send him to jail.

Some laws would forbid American citizens from being qualified to hold elected office in the United States. Let’s take a look.

Disqualification

The United States Constitution provides for the disqualification of a presidential candidate outlined in Article II. These include being a natural-born citizen and being at least 35 years of age. And having been a resident of the United States for at least 14 years.

If Trump meets these requirement is there any other path that would prevent them from holding office?

Yes. There is.

Fourteenth Amendment, Section 3 spells it out. Section 3 states that insurrection is a bar to hold elected office in the United States. Section three uses plain language and is unambiguous. You don’t need to worry about consulting Webster! Nor do we need a separate Congressional law. Section 3’s language is:

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.

Fourteenth Amendment, Section 3 U.S. Constitution

A group of Colorado citizens (electors) brought a case before a Colorado district judge. They claim that Donald Trump should be disqualified from being on the primary ballot in the state. The group was a left-leaning group of Republican and independent Colorado voters. They believed that Trump’s actions related to the attack on the Capitol were an insurrection. He should be barred from office.

In that case, in a Colorado district court, Judge Sarah B. Wallace determined that Donald Trump participated in an insurrection. However, the judge ruled that the ban imposed in Section 3 of the Fourteenth Amendment did not apply to presidents.

Trump and the plaintiffs appealed the case. The Colorado Supreme Court took it under consideration. On December 19th, the Colorado Supreme Court ruled that Trump was an ineligible candidate for president because he engaged in an insurrection in the US Capitol attack on January 6, 2021.

The Supreme Court Case

On December 19, 2023, the Supreme Court of Colorado issued its report on an appeal filed by a state district court. This is a summary of the Court’s decision. The headnote of the case is as follows:

In this appeal from a district court proceeding under the Colorado Election Code, the Supreme Court considers whether former President Donald J. Trump may appear on the Colorado Republican presidential primary ballot in 2024. A majority of the court holds that President Trump is disqualified from holding the office of President under Section Three of the Fourteenth Amendment to the United States Constitution. Because he is disqualified, it would be a wrongful act under the Election Code for the Colorado Secretary of State to list him as a candidate on the presidential primary ballot. The court stays its ruling until January 4, 2024, subject to any further appellate proceedings.

Colorado Supreme Court, December 19, 2023, No. 23SA300, Anderson v. Griswold – Election Law – Fourteenth Amendment – First Amendment – Political Questions – Hearsay.

You can read the full report here.

Further Material, Interpretation, and Opinions

Much has been written about how the 14th Amendment has been interpreted and why it is a wall that should block any insurrectionist from holding elected office in the United States. I’ve examined several reports and papers. The papers inform how the 14th Amendment could be considered when barring Trump from the presidency.

The Congressional Research Service

The Congressional Research Service (CRS), a federal legislative branch agency located within the Library of Congress, serves as shared staff exclusively to congressional committees and Members of Congress. CRS experts assist at every stage of the legislative process — from the early considerations that precede bill drafting through committee hearings and floor debate to the oversight of enacted laws and various agency activities.

I found a CRS report, “The Insurrection Bar to Office: Section 3 of the Fourteenth Amendment.” The report is a thorough examination of the qualification clause. It raises key questions, including why the section was included in the 14th Amendment, to whom the section applies, what activities would trigger the bar, and the nature of an insurrection.

One of the issues that a defendant might use if they were president or seeking the job is that Section 3 does not specifically mention President or Vice-President. The Supreme Court of Colorado considered this and assumed the President was indeed an elected officer. The Congressional Research Service report considered this as well, and included this paragraph from discussions held while the Amendment was being constructed:

One scholar notes that the drafting history of Section 3 of the Fourteenth Amendment suggests that the office of the President is covered:

During the debate on Section Three, one Senator asked why ex-Confederates “may be elected President or Vice President of the United States, and why did you all omit to exclude them? I do not understand them to be excluded from the privilege of holding the two highest offices in the gift of the nation.” Another Senator replied that the lack of specific language on the Presidency and Vice- Presidency was irrelevant: “Let me call the Senator’s attention to the words ‘or hold any office, civil or military, under the United States.’”

Congressional Research Service

The report suggests that it needs to be clarified whether Section 3 is self-executing. According to the report, Courts have produced mixed results on this question. However, we have to acknowledge that the decision by the Colorado Supreme Court moves the needle toward the self-executing part of the continuum.

The next report that I’ve included might shed more light on this issue.

Analysis of the 14th Amendment by William Baude & Michael Paulsen

William Baude, University of Chicago, Law School, and Michael Stokes Paulsen, University of St. Thomas School Law, wrote a 126-page paper in the University of Pennsylvania Law Review, Vol. 172. The paper, The Sweep and Force of Section Three, corrects the mistakes regarding former officeholders who participate in an insurrection.

The key issue that any court must answer is whether Donald Trump engaged in an insurrection against the Constitution of the United States. According to the authors, the case for disqualification is strong. There is abundant evidence that Trump set out to overturn the result of the 2020 presidential election. The election was stolen or rigged. Trump and others were involved in numerous schemes to alter the vote outcome. On January 6, he spoke to thousands and encouraged them to “take their country back,” and to walk to the capitol. The authors put it this way:

Did President Trump’s “willful, deliberate refusal to accept the outcome of the lawful constitutional election resulting in his defeat for re-election and, instead, his (and others’) attempt to overthrow constitutional election results and install or maintain himself in office, by force, by fraud or by attempted de facto political coup d’etat against the regime of lawful constitutional government, constitute engaging in ‘insurrection or rebellion against the Constitution of the United States’”? “We think the answer is yes.”

A Summary of the Baude-Paulsen Paper on Donald Trump’s Ineligibility to Run for President, Peter J. Wallison, AELdeas, August 25, 2023.

The Constitution Prohibits Trump from Ever Being President Again by Michael Luttig and Lawrence H. Tribe

Written by a U.S. Court of Appeals Judge (Michael Lurttig) and another by a constitutional law professor (Lawrence H. Tribe), they both concluded long ago that the Fourteenth Amendment protects America from treasonous behavior by a president.

in their article, they write that our country’s most pressing constitutional question is whether we will abide by this clear command of the Fourteenth Amendment’s disqualification clause. Multiple state courts and, finally, the Supreme Court will answer this question. Will they read the language of the 14th Amendment and rule that Donald Trump is ineligible to hold office in the United States, including the presidency?

Democracy Protection Enshrined in the U.S. Constitution by Ruth Ben-Ghiat

Ruth Ben-Ghiat is an author and professor of history and Italian studies at New York University. She is one of the foremost authorities on fascism and autocracy. Her book, Strongmen: Mussolini to the Present, is an in-depth examination of autocrats from Mussolini, Hitler, and Stalin to Orbin, Putin, and Trump.

Insurrection, violence, and propaganda are playbook features of these dictators. Fortunately, the United States Constitution has a safeguard in the 14th Amendment that can prevent would-be dictators like Trump from being elected to any office, including the presidency. On her Lucid website, she explains this safeguard. She writes how Section 3 of the 14th Amendment “can foil autocrats who try to make it hard to prosecute them and ban them from running to office.

However, as she points out the invocation of Section 3 to prevent Trump from being on the ballot will be seen as the law being weaponized to victimize Trump. Judges, prosecutors, and attorneys will be harassed and threatened. Colorado justices now face a flood of threats after they disqualified Trump from the ballot in the state.

I have found Dr. Ben-Ghiat’s perspective and insights on autocrats and authoritarianism crucial to understanding the fight that America faces to preserve democracy.

In conclusion, the 14th Amendment is a shield against insurrection and a guardian of democracy. The call to action is to share your knowledge and opinion of the 14th Amendment and direct your friends and colleagues to some of the resources that I’ve provided here in this post.