Former President Donald Trump’s detractors speculate he’s not constitutionally eligible to run for the White House.
Some are citing a recent University of Pennsylvania law review article written by two conservative, originalist law professors, William Baude and Michael Stokes Paulsen, that claims Mr. Trump is ineligible from holding elected office for his part in an “insurrection or rebellion” that violates Section 3 of the Constitution’s 14th Amendment.
One of Mr. Trump’s Republican primary opponents, former Arkansas Gov. Asa Hutchinson, says he is convinced Mr. Trump cannot constitutionally be president again.
“I’m not even sure he’s qualified to be the next president of the United States. And so you can’t be asking us to support somebody that’s not perhaps even qualified under our Constitution. And I’m referring to the 14th Amendment. A number of legal scholars said that he is disqualified because of his actions on Jan. 6,” Mr. Hutchinson said in an interview on CNN’s “State of the Union” on Sunday.
The Washington Times reached out to the Trump campaign but did not hear back.
Liberal law professor Laurence Tribe and J. Michael Luttig, a former federal appellate judge appointed by George H.W. Bush, wrote in The Atlantic recently that the 14th Amendment barred Mr. Trump from returning to the White House.
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“The process that will play out over the coming year could give rise to momentary social unrest and even violence. But so could the failure to engage in this constitutionally mandated process,” Mr. Luttig and Mr. Tribe wrote.
Discussion about Mr. Trump’s eligibility to be president again under the 14th Amendment arose after he was indicted twice in federal court over his challenge to the 2020 election and his retention of classified documents. He was also indicted by Fulton County, Georgia, District Attorney Fani Willis in a second election case.
Liberal organizations have sought to bar Mr. Trump and congressional Republican lawmakers accused by Democrats of ties to the Jan. 6, 2021, U.S. Capitol protest from running for office. Advocates cite the Civil War-era constitutional amendment to try to brand them as traitors.
According to the Congressional Research Service, a nonpartisan shared staff to congressional committees and members of Congress, “Invocation of the Disqualification Clause raises a number of novel legal questions involving the activities that could trigger disqualification, the offices to which disqualification might apply, and the mechanisms to enforce disqualification.”
CRS’ analysis of the 14th Amendment relating to the Capitol events adds, “The clause has been seldom used, and the few times it has been used in the past mainly arose out of the Civil War—a very different context from the events of January 6.”
Citizens for Responsibility and Ethics in Washington have joined Free Speech for People with plans to hit Mr. Trump’s campaign with legal broadsides under Section 3 of the 14th Amendment.
They have written letters to state election officials requesting them to block Mr. Trump from the ballot and are preparing voter lawsuits and state election board complaints.
Section 3 of the 14th Amendment, enacted after the Civil War during Reconstruction, disqualifies someone from holding office after taking an oath to uphold the U.S. Constitution but later engages in “insurrection or rebellion” against the country.
The clause was intended to deal with Confederate rebels who went to war against the Union or provided aid or comfort to national enemies.
Throughout 2022, liberal organizations such as Free Speech for People and Our Revolution sent letters urging election officials in all 50 states to disqualify Mr. Trump and his allies from qualifying for the ballot.
The groups cited the 14th Amendment, ratified in 1868, to make a case for barring lawmakers and the former president from running campaigns because of their perceived role in inciting the protest.
Liberal activists’ 2022 legal attempts under the 14th Amendment, however, to throw Republican House lawmakers they contended were “insurrectionists” off ballots in their home states were all unsuccessful.
These lawmakers were Reps. Marjorie Taylor Greene of Georgia, Paul Gosar and Andy Biggs of Arizona, Tom Tiffany and Scott Fitzgerald of Wisconsin, Madison Cawthorn of North Carolina and Sen. Ron Johnson of Wisconsin.
• Kerry Picket can be reached at kpicket@washingtontimes.com.
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