Rick is interviewed by Isaac Chotiner of the New Yorker:

. . . The case is almost certain to end up before the U.S. Supreme Court, which, unlike the Colorado Supreme Court, has a strong conservative majority. . . .

To understand how the Supreme Court might approach the case, I recently spoke by phone with Richard H. Pildes, a professor of constitutional law at New York University and an expert on election law. During our conversation. . . we also discussed what the dissents in the Colorado decision suggest about the case’s potential weaknesses and whether the results of the federal case against Trump for attempting to interfere with the transfer of power after the 2020 election will affect his ability to remain on the ballot.

Washington Post:

After warning for years that Donald Trump posed an existential threat to American democracy, two constitutional scholars proposed a possible solution over the summer to keep him from regaining power: Trump, they argued, could be banned from holding office under an obscure provision of the 14th Amendment. . . .

The push by former U.S. Court of Appeals judge J. Michael Luttig, a conservative, and Harvard professor Laurence H. Tribe, a liberal, was considered a long shot. But on Tuesday, it was unexpectedly validated by the Colorado Supreme Court, which ruled that Trump was ineligible for the state’s primary ballot because he had engaged in an insurrection. . . .

Many constitutional scholars say the Colorado decision may be legally sound, but to apply it would be fraught politically, especially in a country so deeply divided and mistrustful of democratic institutions.

“I believe in democracy,” said University of Chicago law professor Tom Ginsburg, “and I don’t think there’s a substitute for letting the people vote.” . . .

Given the unprecedented nature of Trump’s actions to subvert the 2020 election, the Colorado decision underscores “a uniquely uncomfortable moment for American democracy,” said Richard L. Hasen, a UCLA law professor.

But that moment could become even more uncomfortable if the Supreme Court delays weighing in on Trump’s qualification to appear on the ballot. With the Colorado primary coming up on March 5 and Iowa voters set to set to kick off the nominating process with a caucus on Jan. 15, Hasen said the court must resolve the issue sooner than later.

“Republican primary voters need to know what candidates are eligible,” he said. “A speedy resolution is important for democracy.”

The Hill’s report on Rep. Raskin’s appearance on CNN’s State of the Union.

Raskin was indeed emphatic in his belief that Trump is barred from the presidency by virtue of section 3 of the Fourteenth Amendment, saying that “Donald Trump is disqualified just as if he were running and not a born U.S. citizen or if he were running and he were 24 years old.” He also said that, as a result of Trump’s impeachment and Senate trial (in which 57 Senators voted to convict, but not the requisite 67), “you’ve got robust, bicameral, bipartisan majorities that have already established this as a fact.” (He made the same point twice, saying a bit earlier that 57 Senators determined “as a constitutional fact” that Trump incited an insurrection.)

Perhaps most significantly, referring to the disqualification provision in the Fourteenth Amendment, Raskin said “we have to abide by it.” Although the timing point was not specifically addressed in the interview, this statement indicates to me that Raskin would be prepared to invoke section 3 of the Fourteenth Amendment on January 6, 2025 if the U.S. Supreme Court had not already ruled definitively one way or the other on the merits of the provision’s applicability to Trump. How many other members of Congress would join Raskin in this respect is unknowable at this point. But the more momentum that Raskin would have behind an effort to disqualify Trump on January 6, 2025, the greater the constitutional crisis it would be in my judgment–because at that point Trump would have won the popular vote in enough states for an Electoral College victory, and the voters rightfully would consider themselves robbed of their choice. Hence, the imperative to settle this issue before voters cast their ballots in November of next year.

As part of a thoughtful discussion of Trump’s status under section 3 of the Fourteenth Amendment on this week’s episode of Slate’s Political Gabfest, the point was made that the impeachment process is the Constitution’s method for disqualifying a president who engages in the kind of assault on democracy that Trump did. I agree that it would have been far better if ten more Republican Senators had voted to convict Trump in his second impeachment trial, to reach the 67 necessary for a conviction. But I disagree with any suggestion that the impeachment process is the exclusive mechanism under the Constitution for disqualification.

Returning to historical examples proves this point. Vice President John Breckinridge was never impeached for his disloyalty to the United States in joining the Confederacy, but he was clearly disqualified from holding office again, including the presidency, by section 3 of the Fourteenth Amendment. The question of whether Clement Vallandigham was disqualified by section 3 because of his apparent role in a pro-Confederate conspiracy is more debatable and would need to have been adjudicated in some judicial proceeding consistent with due process, but the fact that Vallandigham had never been impeached would not have been a bar to his disqualification under section 3. Indeed, insofar as Vallandigham was a member of Congress and not a member of the federal executive or judiciary, it’s very doubtful that the impeachment process would have applied to him. Section 3 of the Fourteenth Amendment also disqualifies insurrectionist officers (or former officers) of a state government who have sworn an oath to uphold the U.S. Constitution, and the federal impeachment procedure obviously does not apply to those state government officials.

There does need to be a suitable judicial procedure for making disqualification determinations under section 3. Not every case, either at the time of Civil War and certainly not now, is as obvious as Breckinridge’s disqualification, for which “judicial notice” in any court proceeding would have been appropriate. Nor is it automatic that existing state procedures are suitable for this kind of disqualification determination, which is why I argued in my Washington Post column that state legislatures ought to examine their existing procedures to see if they need clarification or supplementation.

There is one existing procedure, apart from impeachment, where disqualification could occur. And, like the impeachment process, it would be a political (as well as legal) judgment made by sitting members of Congress. That procedure is the joint session of Congress where the electoral votes are counted and the winner officially declared. Moreover, under the procedures of the new Electoral Count Reform Act, it takes only a majority vote of both houses of Congress–and not two-thirds of the Senate–to object to electoral votes as “not have been regularly given” because they were cast for a disqualified candidate. Moreover, filibuster rules do not apply to each chamber’s deliberations pursuant to the Twelfth Amendment joint session.

But it would be a disaster of monumental proportions for Congress to disqualify Trump on January 6, 2025, after he won the requisite number of electoral votes based on popular vote victories in enough states. Would Congress even consider doing this? We can only speculate, but members of Congress themselves take an oath to uphold the Constitution, and if any member of Congress sincerely believes that Trump is disqualified under section 3–as many of them must, who already voted to impeach or convict him for his role in the January 6, 2021 attack on the Capitol–then it seems that there is a nontrivial chance there would be a congressional debate on the disqualification issue on January 6, 2025, if Trump has achieved an Electoral College victory.

To my mind, the risk of this occurring remains a reason to hope that there is a procedure that enables the U.S. Supreme Court to adjudicate the disqualification issue one way or another before ballots are cast in November of next year–so that Congress does not feel empowered to decide the disqualification issue differently after the election.

Brief clip emphasizing the timing point–the need to resolve this issue definitively before the election and not afterwards.

Boston Globe (behind paywall). Some excerpts:

“Secretary of State David Scanlan, who will oversee the first-in-the-nation presidential primary in just five months, said he’s received several letters lately that urge him to take action based on a legal theory that claims the Constitution empowers him to block Trump from the ballot.

“Scanlan, a Republican, said he’s listening and will seek legal advice to ensure that his team thoroughly understands the arguments at play. …

“‘I have some in-house staff attorneys that are election experts,” he said. ‘I will be asking the attorney general’s office for their input. And ultimately whatever is decided is probably going to require some judicial input.’” …

“Here in New Hampshire, the GOP’s 2020 nominee for the first congressional district, attorney Bryant “Corky” Messner, said in a radio interview Monday that he read about the legal theory and is now thinking about suing to ensure that Scanlan enforces the Constitution against Trump.

“Scanlan said the former president — who faces four criminal indictments, including two that pertain to his attempts to subvert democracy after the 2020 election — is entitled to due process. And he said judges are better equipped than he currently is to determine whether the campaign that culminated in violence at the US Capitol on Jan. 6, 2021, triggers the 14th Amendment.

“’I view the violence as being a really unfortunate event in our history,” he said. “I don’t know that I’m really qualified to say whether that was an ‘insurrection’ or not. I think that is for the courts to decide’.”

Palm Beach Post reports:

“Boynton Beach tax attorney Lawrence Caplan filed the challenge in federal court in the Southern District of Florida citing the amendment’s “disqualification clause” for those who engage in insurrections and rebellion against the United States. …

“But constitutional scholar Kevin Wagner said invoking the amendment to kick Trump off the ballot is an endeavor that faces significant legal, constitutional and political hurdles.

“‘There’s a legitimate argument that one can make surrounding the plain wording of the 14th Amendment and the accusations of what the president did on Jan. 6,’ said Wagner, a professor of political science at Florida Atlantic University. ‘But I think it’s a harder lift than people think and at the end of the day you have to find someone that’s willing to enforce it. …

“Caplan’s filing asserts that Trump’s actions on Jan. 6, 2021 violated the amendment and asks that he be barred from seeking the presidency and from appearing on the ballot in Florida’s 2024 presidential primary next March 19. …

“Caplan’s challenge is among the first 14 Amendment-related objections lodged against Trump in a federal court. However, discussion of the 45th president’s disqualification has surged in the past week. …

“FAU’s Wagner agrees that the 14th Amendment may not require Trump’s conviction on any charges for it to be invoked.

“‘What makes it tricky is it doesn’t say you don’t have to be convicted. It just says you have to engage in it,’ he said.

“Nonetheless, despite the cacophony of constitutional chatter, Wagner said he thinks applying the 14th Amendment to Trump will be a challenge because of the scarcity of legal precedents.

“‘The problem here is that there is no real case law, there’s no dominant interpretation that we can all look at and agree that this is how it is done,’ he said.”

John Yoo and Robert Delahunty in The Federalist has an extended analysis of the issue of applying section 3 of the Fourteenth Amendment to Trump.

They accept the Baude-Paulsen position “about the continuing relevance of the Constitution’s insurrection clause,” but they reject the idea “that anyone, down to the lowest county election worker, has the right to strike Trump from the ballot.”

Here’s some of what they write in support of their view:

“… If it were clear that Trump engaged in insurrection, the Justice Department should have acted on the Jan. 6 Committee’s referral for prosecution on that charge. Special Counsel Jack Smith should have indicted him for insurrection or seditious conspiracy, which remain federal crimes. If it were obvious that Trump had committed insurrection, Congress should have convicted him in the two weeks between Jan. 6 and Inauguration Day. Instead, the House impeached Trump for indictment to insurrection but the Senate acquitted him.   

“The Senate’s acquittal is the only official finding by a federal or state institution on the question of whether Trump committed insurrection. The failure of the special counsel to charge insurrection and the Senate to convict in the second impeachment highlights a serious flaw in the academic theory of disqualification.

“According to Luttig and Tribe, it appears self-evident that Trump committed insurrection. They assume Trump violated the law without any definitive finding by any federal authority. According to their view, he must carry the burden of proof to show he is not guilty of insurrection or rebellion — a process that achieves the very opposite of our Constitution’s guarantee of due process, which, it so happens, is not just provided for by the Fifth Amendment, but reaffirmed in the same 14th Amendment that contains the disqualification clause. It would be like requiring Barak Obama to prove he was native-born (a constitutional prerequisite for being president) if state election officials disqualified him for being foreign-born.

“If this academic view were correct, it would throw our electoral system into chaos. One of the chief virtues of the Electoral College system is that it decentralizes the selection of the president: State legislatures decide the manner for choosing electors, with each state receiving votes equal to its representation in the House and Senate. States run the elections, which means that hundreds, if not thousands, of city, county, and state officials could execute this unilateral finding of insurrection. A county state election official, for example, could choose to remove Trump’s name from printed ballots or refuse to count any votes in his favor. A state court could order Trump barred from the election. A state governor could refuse to certify any electoral votes in his favor. The decentralization of our electoral system could allow a single official, especially from a battleground state, to sway the outcome of a close race in the 2024 presidential election.

“Allowing a single state to wield this much power over the federal government runs counter to broader federalism principles articulated by the Supreme Court. …

“… The Supreme Court lent further support for this idea in United States Term Limits v. Thornton (1995), which held that states could not effectively add new qualifications for congressional candidates by barring long-time incumbents from appearing on the ballot. Writing for the majority, Justice Stevens argued that allowing states to add term limits as a qualification for their congressional elections conflicted with ‘the uniformity and national character [of Congress] that the framers sought to ensure.’ Allowing state election officials to decide for themselves whether someone has incited or committed insurrection, without any meaningful trial or equivalent proceeding, would give states the ability to achieve what term limits forbid.

“We are not arguing that Section 3 of the 14th Amendment lacks the means of enforcement (though not every official who has sworn an oath to uphold the Constitution has such enforcement power). Each branch of the federal government can honor Section 3 in the course of executing its unique constitutional functions. Article I of the Constitution allows Congress to sentence an impeached president not just to removal from office, but also disqualification from office in the future. Congress could pass a statute disqualifying named insurrectionists from office — we think this would not qualify as an unconstitutional bill of attainder — or set out criteria for judicial determination.

“Using its enforcement power under Section 5 of the 14th Amendment, Congress could conceivably establish a specialized tribunal for the handling of insurrectionists. The president could detain suspected insurrectionists, subject ultimately to judicial review under a writ of habeas corpus, or prosecute them under the federal law of insurrection and seditious conspiracy. Federal courts will have the ultimate say, except in cases of unilateral congressional action, such as lifting a disqualification by supermajority votes, because they will make the final judgment on any prosecutions and executive detentions.”

Without attempting here an extensive response to their position, I will make a few point:

First, I agree with their assertion about due process. It would not be appropriate to have Trump bear the burden of proving that he is not disqualified.

Second, I think their “chaos” point rests on a mistake about the interplay between state and federal power on this issue. As I explained in a previous post, I think the best reading of the Constitution in this regard is that state legislatures have power under Article II to enforce the disqualification provision of section 3 of the Fourteenth Amendment subject to the preemptive power of federal legislation pursuant to section 5 of the Fourteenth Amendment. Any exercise of state legislature power under Article II would not make any state officials, and certainly not each county-level clerk, the last word on the disqualification issue. First of all, as I argued in my Washington Post column, there would need to be a determination on the relevant state law question of whether any of the state’s administrative officials (and if so which one) had been empowered by state legislation to make this kind of disqualification determination. (To be clear, I reject the view that section 3 of the Fourteenth Amendment is completely self-executing without any implementing legislation at all, either state or federal.) But even assuming a proper interpretation of the relevant state statutes concluded that some state administrative official had authority to make a disqualification determination under section 3 of the Fourteenth Amendment, that decision on a question of federal constitutional law would necessarily be judicially reviewable in either state or federal court (Trump surely would have standing to challenge any disqualification decision made against him by a state administrative official), with the ultimate decision on the merits of the federal question to be made by the U.S. Supreme Court. Therefore, there wouldn’t be different and conflicting disqualification determinations in different states, or different localities, once the U.S. Supreme Court settled the issue for the nation. (I think this point also refutes their reliance on Thorton because state officials wouldn’t be imposing any new eligibility requirement beyond what the U.S. Supreme Court itself authoritatively concluded was entailed by section 3 of the Fourteenth Amendment.)

Third, and finally, the Yoo-Delahunty position on this topic leaves open the possibility of the nightmare scenario I fear most: an attempt by Congress to disqualify Trump after (hypothetically) he has won the Electoral College. The Yoo-Delahunty position–that section 3 has ongoing relevance beyond the Civil War, and that Congress has power to make its own judgment on whether or Trump is constitutionally barred from the presidency again–means that, if this issue is not resolved in advance of the election, there is the risk that Congress may attempt to assert this power afterwards. That would provoke a most perilous constitutional crisis for reasons I’ve stated previously and won’t elaborate again here. But this potential catastrophe can be avoid if the U.S. Supreme Court is able to make a definitive decision on the merits of disqualification issue in advance of the election.