Two conservative lawyers make a strong 14th Amendment argument. But the politics of their theory are very, very dicey.

FTA:

Two conservative legal scholars, members of the Federalist Society in good standing, have just published an audacious argument: that Donald Trump is constitutionally prohibited from running for president, and that state election officials have not only the authority but the legal obligation to prevent his name from appearing on the ballot.

The legal paper, authored by University of Chicago professor William Baude and University of St. Thomas professor Michael Stokes Paulsen, centers on Section 3 of the 14th Amendment — a provision that limits people from returning to public office if they have since “engaged in insurrection or rebellion” or “given aid or comfort” to those who have. Baude and Paulsen argue that this clearly covers Trump’s behavior between November 2020 and January 2021.

“The most politically explosive application of Section Three to the events of January 6, is at the same time the most straightforward,” Baude and Paulsen write. “Former President Donald J. Trump is constitutionally disqualified from again being President (or holding any other covered office) because of his role in the attempted overthrow of the 2020 election and the events leading to the January 6 attack.”

  • AutoTL;DRBEnglish
    22•11 months ago

    This is the best summary I could come up with:

    Baude and Paulsen’s paper, set to be published in the University of Pennsylvania Law Review, focusing on plain-language readings on Section 3 of the 14th Amendment and the way its key terms were used in political discussion around the time of enactment.

    If this interpretation is correct, then the legal case against Trump is fairly straightforward — all established by facts in public reporting, evidence from the January 6 committee, and the recent federal indictment.

    Even if (let’s say) the members of a state board of elections think someone below the drinking age would make the best president in American history, the law is clear that such a person can’t hold office and thus can’t be permitted to run.

    Every official involved in the US election system, from a local registrar to members of Congress, has an obligation to determine if candidates for the presidency and other high office are prohibited from running under Section 3.

    Moreover, state election officials are not federal judges; the very existence of Griffin’s Case, however poorly reasoned, creates real doubt as to whether they are legally empowered to do what Baude and Paulsen are telling them they have to do.

    Best case, there’s a write-in campaign to put Trump in the presidency, giving rise to a constitutional crisis if he won (since the Supreme Court would have ruled him ineligible in upholding the state officials’ actions).

    I’m a bot and I’m open source!