Will Donald Trump legally qualify to appear on ballots in 2024?

Get the Point!

Question: Having been indicted four times over the past four months, has former President Donald Trump disqualified himself from future presidential service?

Answer: Chances are that if you were taught Civics/American history the same way that I was back in the day, you probably recall learning:

A. The 13th (1865) Amendment formally freed formerly enslaved Blacks...

B. The 14th Amendment (1868) granted formerly enslaved Blacks U.S. citizenship and equal protection under the law...

C. The 15th Amendment (1870), in theory, granted formerly enslaved Black men the right to vote which was extended to Black women, in theory, per the 19th Amendment (1920) until the Voting Rights Act was signed into law in 1965.

While those teachings are still true and will serve you well if you ever play quiz bowl, Jeopardy!, or Trivial Pursuit, it wasn't until I entered law school many years later when I truly realized how much deeper each of these three so-called "Black Amendments" reached with regards to general civil and criminal jurisprudence in America. 

As to today's question, whether former President Donald Trump has disqualified himself from becoming the first president since Grover Cleveland to potentially serve two non-consecutive terms, a seldom taught aspect of the 14th Amendment very well could determine whether the former president will find his name on the ballots in each of the 50 states should he win the Republican nomination (as currently predicted by most of the leading opinion polls). 

Specifically, Section (3) of the 14th Amendment, ratified three years after the Civil War ended in 1865, provides in pertinent part:

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."

Lest we forget that prior to January 6, 2021 that then President Donald Trump was suspended from Twitter and Facebook due to his posts throughout late December of 2020 and early January 2021 claiming that the election had been "rigged" and "stolen" by then President-elect Joe Biden. Trump's words, now forever known as "The Big Lie," ran contrary to the findings of 61 of the 62 courts that ruled against his election challenges—including the very U.S. Supreme Court that held a 6-3 conservative majority due to his own three conservative appointees, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, none of whom found any fault with the lawful election results in favor of Mr. Biden. 

Trump’s shouting for his followers to “Stop the Steal” on January 6, 2021will be on endless loop when he sits as a defendant in two criminal trials for tampering with the 2020 elections…

Undeterred, Trump still pushed his lies via social media, where he encouraged his followers to come to Washington, D.C. and "Stop the Steal," which to him, meant to obstruct the certification of the Electoral College votes on January 6th. An angry and defiant Trump took the stage only a few miles from Capitol Hill that morning and promised to lead marchers to the Capitol to stop proceedings that, by law, were presided over by his own Vice President Mike Pence.

While the Secret Service prevented Trump from joining what would turn into an afternoon of wanton rebellion, numerous members of his inner circle have testified via deposition that Trump seemed downright giddy and possessed as he watched television coverage of the violent pandemonium which erupted among his followers that day, one that ended with their shouts to "hang Mike Pence;" six deaths, and over $50 million dollars in property damage. 

Over the past several weeks, Trump has been indicted twice for his role in the January 6th MAGA riots, first in federal court in Washington, D.C., and just last week in the Superior Court for Fulton County, Georgia. As a fair and balanced blog, the Hobbservation Point kindly notes that like any criminal defendant, Trump is presumed innocent "unless and until" he is found guilty beyond a reasonable doubt by a jury of his peers.

Now, whether those juries will convene prior to the upcoming 2024 election has yet to be determined, but a number of legal scholars have in recent weeks argued that Trump's alleged criminal misconduct—misconduct that was in plain view via social and traditional media during the winter of 2021—renders him disqualified from the presidency or any other public office due to the 14th Amendment. 

What I find of great interest is that it is not just progressive or Democratic leaning legal thinkers making the argument to disqualify Trump, but conservative members of the Federalist Society—the very organization that has counted revered conservatives like the late Supreme Court Justice Antonin Scalia and each of the Supreme Court's current six conservative members as loyal adherents—that is making the argument that Trump must be disqualified!

In an article published in The Atlantic magazine yesterday, leading liberal law professor Laurence Tribe (Harvard University) joined J. Michael Luttig, a former federal appellate judge and prominent conservative, in criticizing Trump's post 2020 election conduct. The duo aver:

 “Having thought long and deeply about the text, history, and purpose of the Fourteenth Amendment’s disqualification clause for much of our professional careers, both of us concluded some years ago that, in fact, a conviction would be beside the point. The former president’s efforts to overturn the 2020 presidential election, and the resulting attack on the U.S. Capitol, place him squarely within the ambit of the disqualification clause, and he is therefore ineligible to serve as president ever again."

If that sounds damning, consider the words of two highly influential members of the Federalist Society, Law Professors William Baude (University of Chicago) and Michael Stokes Paulsen (University of St. Thomas), whose joint article in the University of Pennsylvania's Law Review inscribes:

"In our view, on the basis of the public record, 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...The case for disqualification is strong.” As noted in a CNN summary this morning, Professors Baude and Paulsen add that the former president "delivered a 'general and specific message' that the election was stolen, calling on the crowd to take immediate action to block the transfer of power before falling silent for hours as the insurrection progressed."

As I noted in my last Hobbservation Point article, there is a sense of irony that Trump, arguably the most race baiting president since Woodrow Wilson a century ago, finds himself in the deepest election related criminal hot water in cases handled by a Black prosecutor (Georgia) and a Black judge (D.C.)—professionals tasked to prosecute or interpret parts of laws rooted in Congress' attempts to inculcate equal protection under the law for their formerly enslaved Black ancestors!

As I often point out in these pages, the "Black Amendments," especially the 14th and the 15th, were “equal” in theory but rarely in application as racist white government actors across America denied full citizenship rights to Black people until the late 1960's—and still, in some respects, deny the same in some aspects of American life. Thus, it will be very interesting to see whether Section 3 of the 14th Amendment, the one that was designed to prevent rebellious former Confederates from holding office, will hold sway among their rebellious ideological MAGA descendants.

Thus far, Trump's lawyers and loyal sycophants like Sen. Ted Cruz (R-Tx) and Sen. Lindsay Graham (R-S.C.) have argued that in 2020-21, that Trump was merely exercising his right to challenge the electoral results the same way that Democrat Al Gore did when he faced Republican George W. Bush in 2000. But I submit that if the election being "rigged" was the "Big Lie" back in 2021, the mid-size lie today is that Trump was participating in the legal process via his acts and words in the run up to the January 6th MAGA rebellion.

Seriously, please consider that Trump's very own Republican Attorney General, William Barr, told him that after 61 legal losses in federal courts that there was no pathway forward; the Republican Senate Majority Leader, Mitch McConnell of Kentucky, told Trump that there was no pathway forward prior to congratulating Joe Biden on his victory in December of 2020; Trump's fellow Republicans, Georgia Gov. Brian Kemp and Secretary of State Brad Raffensperger, both told him that there was no legal pathway to overturn the Georgia election results; Trump's loyal to a fault Republican Vice President, Mike Pence, told him that there were no legal bases that would grant him authority to stop the certification on January 6th.

In my opinion, Trump knew good and well from his own serious minded lawyers and Republican Party members that he had been soundly defeated, but in pure despotic form, instead of accepting his fate—as Al Gore did by conceding to George W. Bush in 2000—Trump decided to appeal to the lowest life forms among his followers and encouraged them to commit mayhem and insurrection on his behalf. Such is why the former president now stands accused of multiple felony counts, and such is why he just may stand accused of those counts without the benefit of a presidential run if enough states exclude him from the ballot per the 14th Amendment—and the U.S. Supreme Court, interpreting that seldom used Section (3), upholds the state level decisions.

Stay tuned...