Despite — or partly because of — the numerous lawsuits he faces, Donald Trump is head and shoulders above the competition for the Republican nomination. So next year's election almost certainly looks like a repeat of the battle between Trump and Joe Biden in 2020. Or not?
A growing group of lawyers and politicians say Trump can no longer run for office based on the 14th Amendment to the US Constitution.
A clause in this amendment prescribes that anyone who “participates in an insurrection or rebellion” after taking an oath to defend the Constitution can no longer hold public office. The clause was drafted after the American Civil War and was intended to prevent former officers from Southern states from entering Congress.
William Baude and Michael Stokes Paulsen, two conservative law professors, argue in the University of Pennsylvania Law Journal that his role in taking over the Capitol and attempting to overturn the election result means Trump should no longer be president.
J. Michael Luttig, a former conservative judge, and Laurence Tribe, a liberal professor of constitutional law, joined in a recent article. Atlantic to this concept. “The former president's efforts to overturn the 2020 presidential election and the ensuing attack on the U.S. Capitol place him entirely within the scope of the disqualification clause.”
This clause has never before been used against a presidential candidate. If this were now to be enforced by any state or court, Trump's eligibility would likely be challenged all the way to the highest court.
Democratic Congressmen Adam Schiff and Tim Kaine said over the weekend that Trump could be disqualified based on the amendment.
However, other prominent lawyers say the text does not apply to Trump. Michael McConnell, a Stanford law professor, argued that terms such as “insurrection and rebellion” only referred to the most serious anti-government uprisings, such as the Civil War, and therefore did not apply to Trump.
The Trump camp considers the discussions around this clause as new proof that the Democrats want to unfairly sideline the former president. “This is a ploy by radical left communists and fascists to steal the election again,” Trump wrote on social media Truth Monday, referring to his baseless claim that he did indeed win the 2020 election.
The first steps to remove Trump from the polls have already been taken. In the state of New Hampshire, a Republican candidate filed a lawsuit to disqualify Trump in that state. A liberal activist group, Free Speech for People, also sent a letter to nine states asking them to activate the clause on their own.
Some Secretaries of State have already indicated that they are considering doing so. Michigan Secretary of State Jocelyn Benson said she plans to talk to her colleagues about how they will resolve the issue.
More polarized than ever
But invoking this clause also carries risks. In an opinion piece, the editors of The Wall Street Journal that it would undermine American democracy at a time when American society is already more polarized than ever. Also, it would potentially increase Trump's chances of winning the election.
You would think Donald Trump's opponents would have learned something. Since 2016, every time they have faced the former president in the voting booth, they have won. But when they resort to lawsuits, impeachment or false conspiracy allegations, they only make Trump stronger. »
Tom Kieft is Foreign Affairs Coordinator at Het Parool and writes, among other things, on developments in Ukraine, the European Union and the United States.