Trumping the 14th Amendment

Dr. Malcolm Cross

Prominent liberal and conservative legal scholars are beginning to argue that Donald Trump’s conduct on January 6, 2021, disqualifies him from running for president in 2024.  They cite the 14th Amendment as their authority.  But an analysis of what the 14th Amendment actually says raises questions about the strength of their arguments.  It’s probable that whether Trump returns to the White House will be determined by the voters, which is as should be the case.

The 14th Amendment was added to the Constitution after the Civil War.  Its main purposes were to make ex-slaves American citizens and guarantee them due process and the equal protection of the laws.  Of course, the degree to which these purposes of the 14th Amendment have been achieved remains fiercely debated to this day.

But Section 3 of the 14th Amendment also said, in 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…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…”  The arguments advanced by those who want Trump’s name kept off ballots next year are simple and straightforward:

  • On 1/20/17, when being sworn in as President of the United States, Trump took an oath to “preserve, protect, and defend the Constitution of the United States.”
  • On 1/6/21, Trump nonetheless fomented an “insurrection” against the United States.
  • Therefore, Trump is disqualified from holding the presidency or any other federal office.

Yet the issue may not be so simple.  Skeptics have raised several questions casting doubts on whether the 14th Amendment really applies to Trump’s case.  For example:

  • Was the riot on January 6 truly an “insurrection or rebellion?”  The 14th Amendment was written following a 4-year civil war in which hundreds of thousands died.  The 1/6 riot hardly seems to be in the same league.
  • Did Donald Trump really foment it?  In his speech before the protestors—including those who subsequently turned violent—Trump said they should “peacefully and patriotically” protest the counting of the electoral vote.  He did not explicitly advocate violence.  Therefore, his remarks, however ill-advised—were constitutionally protected free speech.  Moreover, it’s noteworthy that Trump has not been indicted for fomenting “insurrection or rebellion” by either the federal or state prosecutors seeking his conviction for interfering with the 1/6 vote counting.  Perhaps they thought that whatever else Trump did, he did not really foment an “insurrection or rebellion” as defined by law.
  • But even if Trump is guilty of insurrection or rebellion, was he an “officer of the United States?”  Michael Mukasey, President George W. Bush’s Attorney General, wrote in the Wall Street Journal that the United States Supreme Court, in at least two cases, has ruled that the President is not an “officer of the United States.”  Mukasey cited U. S. vs. Mouat (1888), wherein the Supreme Court said that “unless a person in the service of the government…holds his place by virtue of an appointment…, he is not, strictly speaking, an officer of the United States.”  Mukasey also cited Chief Justice John Roberts who said, in Free Enterprise Fund v. Public Company Accounting Oversight Board (2010), that “The people do not vote for ‘Officers of the United States’.”  So the fact that Trump was elected and not appointed would seem to exempt him from disqualification under the 14th Amendment.

Of course, regardless of what Mukasey and other 14th Amendment skeptics say, attempts may still be made to have Trump disqualified.  In fact, Trump may well welcome such attempts.  The more indictments and impeachments to which he’s subjected, the more his popularity within the GOP grows.  The Associated Press, for example, reports that over the summer the percentage of Republicans supporting Trump’s bid for the presidential nomination has grown from 48% to 59%.  He’s expanded his lead over his closest competitor, Ron DeSantis, from over 20 points in April to over 40 points today.  So if someone tries to disqualify him, he may simply say, “Bring it on!”

If there is such a challenge to Trump, it will probably be made by a Democratic secretary of state in a blue state, and will certainly be appealed by Trump to the Supreme Court.  One can never be 100% certain how the Supreme Court will decide a particular case.  But the Court may well reject such efforts to keep Trump’s name off the ballot next year.  If so, it will be up to the voters to decide Trump’s fate.  And in a democratic republic, it should be the people, and not secretaries of state or federal judges, who should decide the fate of those whom they choose to elect—or reject.

Malcolm L. Cross has lived in Stephenville and taught politics and government at Tarleton from 1987 until 2023. His political and civic activities include service on the Stephenville City Council (2000-2014) and on the Erath County Republican Executive Committee (1990 to the present).  He was Mayor Pro Tem of Stephenville from 2008 to 2014.  He is a member of St. Luke’s Episcopal Church and the Stephenville Rotary Club and does volunteer work for the Boy Scouts of America. Views expressed in this column are his and do not reflect those of The Flash as a whole.

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