OPINION:
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Of all of the legal challenges former President Donald Trump faces, perhaps the most formidable is the risk of being struck from the ballot in a number of states because his presence would, in the opinion of a handful of unwise and dangerous officials, contravene Section 3 of the 14th Amendment.
That section states in the relevant part: “No person shall … 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 … 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. But Congress may by a vote of two-thirds of each House, remove such disability.”
There are those — including some Republicans — who argue that the provisions of Section 3 disqualify Mr. Trump from being on the ballot in 2024.
Indeed, William Baude, a professor at the University of Chicago and a former clerk for U.S. Chief Justice John Roberts, and Michael Stokes Paulsen, a contributor of the Federalist Society, made just such an argument in the Pennsylvania Law Review. Retired federal Judge J. Michael Luttig — a lifelong conservative — and liberal Harvard professor Laurence Tribe echoed the argument in a recent article in The Atlantic.
Leaving aside practical considerations for a moment, neither Mr. Trump nor his numerous supporters have even been charged with insurrection, let alone found guilty of it. This is even though the Justice Department and various prosecutors across the nation have had ample opportunity to bring such charges.
So, legally, it seems unclear how anyone can credibly claim that Mr. Trump is guilty of insurrection or of giving aid or comfort to the enemies of the United States, which would be treason. Even at this late date in the republic, one is presumed innocent until proven guilty in a court of law.
Let’s consider the practical considerations of disallowing Mr. Trump’s presence on state ballots for reasons unrelated to petitions or other metrics for getting on a ballot.
Ballot disqualifications would be the ultimate attack on democracy. The decisions to include or disqualify Mr. Trump would be made not by a jury after a trial but rather by secretaries of state in the various states, most of whom are partisan elected officials.
It is entirely possible that the Democratic secretaries of state in Arizona, Nevada or North Carolina could simply remove Mr. Trump from the ballot without a hearing or any finding — other than their own belief — that the former president was in violation of Section 3. The courts could possibly undo such a decision, but only after extensive and time-consuming legal processes that may not be resolved until after the election.
Consider that possibility for a moment. A candidate who had not been found guilty of anything in court could be disqualified from the ballot not because of any defect in petitions or other requirements associated with getting on the ballot but merely because state officers disapproved of his candidacy.
With that as precedent, the notion that the United States is a republic characterized by popular sovereignty and reliant on the will of the people for its legitimacy would be finished.
Of more immediate import, such an election would be illegitimate and, quite probably, lead to mass civil disobedience and perhaps widespread violence. You can’t disenfranchise 80 million people — many of whom are armed and already convinced that the legal and economic systems are working energetically against them — and expect them not to resist.
Those who are advocating this Section 3 disqualification strategy need to think carefully about where their preferred course of action would take us. Apart from its lack of grounding in anything resembling American law, it would make the United States ungovernable for years.
• Michael McKenna, a columnist for The Washington Times, is president of MWR Strategies. He was most recently a deputy assistant to the president and deputy director of the Office of Legislative Affairs at the White House. He can be reached at mike@mwrstrat.com.
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