Baude and Paulsen: Donald Trump Disqualified to Serve as President Under Section 3 of the 14th Amendment

Will Baude and Michael Stokes Paulsen, two eminent conservative legal scholars, have posted this draft on SSRN (forthcoming University of Pennsylvania Law Review). Here is the abstract:

Section Three of the Fourteenth Amendment forbids holding office by former office holders who then participate in insurrection or rebellion. Because of a range of misperceptions and mistaken assumptions, Section Three’s full legal consequences have not been appreciated or enforced. This article corrects those mistakes by setting forth the full sweep and force of Section Three.

First, Section Three remains an enforceable part of the Constitution, not limited to the Civil War, and not effectively repealed by nineteenth century amnesty legislation. Second, Section Three is self-executing, operating as an immediate disqualification from office, without the need for additional action by Congress. It can and should be enforced by every official, state or federal, who judges qualifications. Third, to the extent of any conflict with prior constitutional rules, Section Three repeals, supersedes, or simply satisfies them. This includes the rules against bills of attainder or ex post facto laws, the Due Process Clause, and even the free speech principles of the First Amendment. Fourth, Section Three covers a broad range of conduct against the authority of the constitutional order, including many instances of indirect participation or support as “aid or comfort.” It covers a broad range of former offices, including the Presidency. And in particular, it disqualifies former President Donald Trump, and potentially many others, because of their participation in the attempted overthrow of the 2020 presidential election.

From the paper:

The case for disqualification is strong. There is abundant evidence that Trump deliberately set out to overturn the result of the 2020 presidential election result, calling it “stolen” and “rigged”; that Trump (with the assistance of others) pursued numerous schemes to effectuate this objective; that among these were efforts to alter the vote counts of several states by force, by fraud, or by intended intimidation of state election officials, to pressure or persuade state legislatures and/or courts unlawfully to overturn state election results, to assemble and induce others to submit bogus slates of competing state electors, to persuade or pressure Congress to refuse to count electors’ votes submitted by several states, and finally, to pressure the Vice President unconstitutionally to overturn state election results in his role of presiding over the counting of electors’ votes.

Leading up to January 6, Trump repeatedly solicited, suborned, and pressured Vice President Mike Pence to prevent the counting of the electoral votes in favor of President-elect Biden. Not only that: Trump assembled a large crowd to march on the Capitol and intimidate Congress and the Vice President into complying with his wishes and thereby prevent the official counting of the votes of electors confirming Trump’s defeat. Trump had announced on Twitter a protest to be held on January 6, 2021: “Big protest in D.C. on January 6th. Be there, will be wild!” According to testimony amassed by the House’s January 6th Commission, Trump’s supporters interpreted this as a call to arms, sometimes literally.

Then there are the events of January 6 specifically. When January 6 arrived, Trump delivered an incendiary address at the White House Ellipse to the crowd of supporters he had effectively summoned to the Capitol to oppose what he had been calling the “steal” of the election. Trump reiterated his false claim that he had in fact won the election—“we won this election and we won it by a landslide”—but that the Democrats and the media had “stolen” the election and “rigged” a false outcome. “They rigged it like they’ve never rigged an election before,” he charged. “Make no mistake, this election was stolen from you, from me and from the country. … This [is] the most corrupt election in the history, maybe of the world.” The crowd was “gathered together in the heart of our nation’s capital for one very, very basic and simple reason: To save our democracy.” Trump called on the crowd to march on the Capitol. “Our country has had enough. We will not take it anymore and that’s what this is all about. … We will stop the steal.” He urged the assembled mass of thousands, some of whom Trump knew to be armed, to “fight like hell, and if you don’t fight like hell you’re not going to have a country anymore.”

Some might quibble that the speech is ambiguous. Not all of Trump’s rambling address called literally for the crowd to “fight.” Some of his statements were ambiguous and at one point he remarked that the crowd would be marching “peacefully and patriotically.” He never directly and literally called for attacking the Capitol or the Vice President. Much of what might be thought incitement to lawlessness was innuendo. Nonetheless, the general and specific message was that the election had been stolen; that a constitutional fraud of colossal proportions and cataclysmic consequence was in the process of being perpetrated on the nation; that the crowd needed to take “strong” and direct action to protect the country; and that immediate action was necessary to prevent Vice President Pence and Congress from ratifying the unconstitutional election of an illegitimate president and doing irreparable damage to the nation.

These ambiguities have given rise to a debate about whether Trump’s speech did or did not cross the strict incitement threshold of Brandenburg v. Ohio. It could
well be that it did cross the line: Trump had deliberately assembled the mob of supporters, steeled them to action, knew that they were ready to take immediate action,
and directed them to take it. But the most important thing is that the Brandenburg question is beside the point. Section Three of the Fourteenth Amendment does not enact the legal standard of Brandenburg v. Ohio. It enacts the standard of having “engaged] in insurrection,” or given “aid or comfort” to those doing so, and qualifies, modifies, or simply satisfies the First Amendment to the extent of any conflict between these constitutional principles. First Amendment or no, the speech was part of Trump’s participation in and support for the insurrection.

Finally, as events unfolded and the violence began, Trump maintained silence—and indeed deliberate indifference bordering on tacit encouragement—for what had by that time clearly become a forcible insurrection. For three hours after learning that his supporters had forcibly invaded the Capitol and were disrupting the constitutional process, Trump took no action to urge them to leave, despite being begged to do so by his advisors and despite having a constitutional duty to take care that the laws be faithfully executed. During this same period, while the insurrection was in progress and after the Capitol had been breached, he again condemned Vice President Pence for not “hav[ing] the courage to do what should have been done to protect our Country and our Constitution,” a statement that the January 6th Commission concluded was “a statement that could only further enrage the mob” and that in fact apparently did so. Once Trump finally did – after several hours and with great reluctance—direct his supporters to leave the Capitol, they quickly dispersed.
This culpable inaction—failing to intervene to stop an insurrection in progress, declining to act to arrest a violent uprising, despite having both the capacity and responsibility to intervene—is another crucial part of Trump’s responsibility for the January 6 insurrection.

Section Three reaches a broad range of conduct providing
meaningful assistance to or support for acts of insurrection or rebellion performed by others, even quite passively.Sitting by and doing nothing—declining to act to arrest a violent uprising, despite possessing the material capacity and legal responsibility to intervene—might qualify. Additionally and equally important, Trump’s deliberate inaction renders his January 6 speech much more incriminating in hindsight, because it makes it even less plausible (if it was ever plausible) that the crowd’s reaction was all a big mistake or misunderstanding

Taking these events as a whole, and judging them under the standard of Section Three, it is unquestionably fair to say that Trump “engaged in” the January 6 insurrection through both his actions and his inaction. Officials—administrators, courts, legislators—whose responsibilities call upon them to apply Section Three properly and lawfully may, indeed must, take action within their powers to preclude Trump from holding future office, Moreover, if one accepts the broader argument that the entire campaign to overthrow the results of the 2020 election was a form of constitutional rebellion, then Trump’s complicity is even more obvious—as the leader, motive force, and chief attempted perpetrator of that rebellion. Indeed, it would not be going too far to say that Trump, having previously sworn a constitutionally required oath to preserve, protect, and defend the Constitution of the United States knowingly attempted to execute what, had it succeeded, would have amounted to a political coup d’etat against the Constitution and its system of elections and overturn the results of the constitutional process, in order to maintain himself in office as President contrary to
law. If that itself constitutes “rebellion” against the Constitution, Trump’s overall course of conduct disqualifies him under Section Three, even apart from the specific
incitement to storm the Capitol on January 6.

The bottom line is that Donald Trump both “engaged in” “insurrection or rebellion” and gave “aid or comfort” to others engaging in such conduct, within the original meaning of those terms as employed in Section Three of the Fourteenth Amendment. If the public record is accurate, the case is not even close. He is no longer eligible to the office of Presidency, or any other state or federal office covered by the Constitution. All who are committed to the Constitution should take note and say so.

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