By Robert Reich
Section 3 of the 14th Amendment to the United States Constitution — known as the “Disqualification Clause” — expressly bars anyone from holding “any office, civil or military, under the United States” who “engaged in insurrection” against the Constitution after previously swearing to uphold it “as an officer of the United States.”
The former guy has made it clear he intends to run for president in 2024. (Trump’s political operation just reported having $122 million in the bank, more than double the cash on hand of the Republican National Committee.)
It would seem that the Disqualification Clause extends to Trump. Consider just the last few days:
On Sunday, Trump virtually admitted his effort to overturn the outcome of the election. “Mike Pence did have the right to change the outcome,” he wrote, “and they now want to take that right away. Unfortunately, he didn’t exercise that power, he could have overturned the Election!”
Trump released a statement calling for Pence to be investigated for not rejecting electoral votes that went to Biden.
On Monday, it was reported that Trump had prepared two executive orders to enable his loyalists to seize voting machines after the 2020 election– one authorizing the Pentagon to seize the machines, the other authorizing the Department of Homeland Security to seize them. (The New York Times also reports that, according to people with firsthand knowledge, Trump was directly involved in the plans.)
And, of course, Trump’s attempted coup continues – as he riles up crowds with his Big Lie, urges states to suppress votes, encourages loyalists to run for secretary of state and other pivotal election-related positions in state government, and even hints at more violence if he’s prosecuted.
So how exactly can the Constitution’s Disqualification Clause be used to stop Trump’s rerun for President? A lawsuit filed in January in North Carolina shows the way. A group of registered voters there have invoked the 14th Amendment to disqualify Rep. Madison Cawthorn from running again for a seat in the House in 2022, based on his support for the January 2021 riot at the U.S. Capitol.
True, these North Carolina voters are relying on a provision of North Carolina law that allows them to raise a “reasonable suspicion” that a would-be candidate is legally unqualified for the office he is seeking, and then shifts the burden of proof to the candidate.
But all states require their election authorities to make some sort of evidence-based decision about whether candidates are eligible to run for a particular office — including for President. And all states are bound by the 14th Amendment to the Constitution.
So the question is: Should we follow the model of the voters in North Carolina and seek to invalidate Trump’s likely candidacy for president, on the basis of the 14th Amendment? Or would a national movement along these lines fuel further division and play into Trump’s hands?