The political perils of using the 14th Amendment on Trump

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The legal case to disqualify Donald Trump from holding office under the 14th Amendment might have some merit.

The political case for going down that road leaves plenty to be desired.

Efforts to disqualify Trump for violating Section 3 of the 14th Amendment — which bars from office anyone who has “engaged in insurrection” or “given aid or comfort” to the United States’ enemies — have suddenly picked up. The idea is that Trump’s effort to overturn the 2020 election, particularly with regard to the attack on the Capitol on Jan. 6, 2021, meet that standard.

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The impetus appears to have been a law review article from two prominent conservative legal minds who made the case, after a year of study, that Trump is ineligible under the 14th Amendment. Since Michael Luttig, a conservative former federal judge, and Laurence Tribe, an emeritus professor of constitutional law at Harvard, wrote in support of the forthcoming article’s argument last month in the Atlantic, efforts have sprung up in states like Colorado, Florida, New Hampshire, Ohio and Wisconsin though the Democratic Party appears to be keeping the effort at arm’s length.

To the extent that Democratic secretaries of state and others in the party have entertained the idea of disqualification, it’s been to say that the Supreme Court should decide the issue. (A prominent and Trump-critical Republican secretary of state, Georgia’s Brad Raffensperger, wrote an op-ed last week arguing against the idea.)

There appears to be reason for the caution. It’s dicey territory, historically speaking. But it’s also dicey territory from a raw political standpoint.

Disqualifying Trump from office under the 14th Amendment doesn’t require him to have been criminally convicted of engaging in insurrection or providing aid or comfort. But it’s worth emphasizing that Trump currently faces 91 criminal charges, and inciting the riot and seditious conspiracy aren’t among them. The House Jan. 6 committee cited in its criminal referrals of Trump 18 U.S.C. Section 2383, which closely mirrors the language of the 14th Amendment. But special counsel Jack Smith’s charges against Trump don’t include it.

About the closest thing to being involved in the insurrection Trump is charged with is obstruction of an official proceeding — a charge many Jan. 6 defendants have faced.

There is precedent for conviction even on a lesser offense serving to disqualify a politician under the 14th Amendment — albeit limited precedent. In New Mexico last year, Otero County Commissioner Couy Griffin became the first officeholder in 150 years to be disqualified. But although he wasn’t convicted of a more serious felony (his charge was trespassing), he was actually present at the insurrection on Jan. 6. That fact separated his disqualification from failed efforts to invoke the 14th Amendment against the likes of Rep. Marjorie Taylor Greene (R-Ga.), then-Rep. Madison Cawthorn (R-N.C.) and others.

Trump’s proximity to Jan. 6 is certainly more pronounced than either Greene’s or Cawthorn’s. But given that he is facing criminal charges over his efforts to overturn the election, it would seem beneficial for our body politic to have a verdict or at least proceedings that more directly address the specific offenses involved in the 14th Amendment.

The House after Jan. 6 did impeach Trump for allegedly inciting the insurrection, but the Senate acquitted him — albeit with a historically bipartisan majority to convict.

Which begins to get at the potential perception problems involved in such an effort.

Polls show a majority of Americans believe that Trump did something wrong in his various indictments, and about half generally believe he broke the law. Depending on how the question is asked, we’ve even seen majorities saying Trump should be disqualified from serving as president again. After Jan. 6, 56 percent of Americans in a Washington Post-ABC News poll said Trump should have been removed from office and disqualified.

But whether they would support his disqualification under these circumstances could be another matter.

There is no question that Jan. 6 amounted to an insurrection, as we’ve made clear. (An insurrection is generally defined as rising up against the government, usually using violence.) But a Monmouth University poll last year showed that only 52 percent of Americans subscribed to that view. Imagine Trump being disqualified for his alleged role in an insurrection that half of Americans aren’t convinced was even an insurrection in the first place.

Beyond that, there’s how the process of applying the 14th Amendment would come to be. Despite Trump’s overwrought attacks on the judicial system and the fact that some prosecutions are being brought by elected Democrats (in Manhattan and Fulton County, Ga.), his criminal trials will at least be decided by juries of his peers. Even impeachment and disqualification are decided by representatives directly elected by Americans across the country, requiring a two-thirds majority of the Senate for conviction.

In the case of the 14th Amendment, we’re talking about activists or a potentially bold (Democratic) secretary of state getting the ball rolling, and the issue being decided by a handful of judges. Judges often decide issues of serious import like this, but they would be deciding something that both the legislative branch and prosecutors effectively declined.

The effort is far from certain to succeed, particularly if the conservative Supreme Court ultimately decides the issue in time. Proponents of this approach should probably ask themselves what the prospects for success even are, and whether they are worth the potential blowback.

But let’s just say for a moment that it does succeed. Imagine it succeeds in a crucial state or two, and Trump is somehow kept off the ballot. (It’s not clear he would be, as the 14th Amendment addresses only whether one can serve, not run.) Now imagine that state or those states wind up being decisive in a Trump loss. We might never know whether Trump would have won if the American people decided the issue on their own, and however likely, it raises the prospect of the courts having effectively decided the election.

It’s at this point that supporters of this idea will point out that virtually nothing will stop Trump from trying to delegitimize any election he loses — or many or most of his supporters from believing it was stolen from him. And that is undoubtedly true. He did it with the Iowa caucuses in 2016. He did it in 2020. He even sought to delegitimize an election he won, in 2016, because he wanted to explain away his popular-vote loss.

But the actual way in which the election is conducted still matters when it comes to views of its legitimacy. In a recent CNN poll, 4 in 10 people said the 2020 election was illegitimate; the danger is that that number will grow and those people will have something firmer to grab hold of. The poll shows that half of those election-truthers admit there is no “solid evidence” for their belief and that they’re going on “suspicion only.”

So there are degrees of belief here, just as there are degrees to the lengths people might go to to fight back against a system they believe has wronged them and their candidate.

None of this focuses on the merits of applying the 14th Amendment. And those merits matter. Just as failing to prosecute Trump raises the risk of emboldening others who might flout the law, failing to apply this constitutional standard to him — if it’s warranted — will have an impact.

It’s not as if our legal system has shied away from consequential questions in recent months, though. They will get a hearing — many dozens of them. If that weren’t happening, and if there was a consensus that Trump’s conduct violated the 14th Amendment, it would be an easier call. But it’s not, and it’s getting late in the 2024 process to suddenly go down such a pitfall-laden road.

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