“Could Trump be barred under the constitution’s ‘engaged in insurrection’ clause?”

Sam Levine for The Guardian:

“Disqualification under the 14th amendment does not require a criminal conviction, Noah Bookbinder, the executive director of the watchdog group Citizens for Responsibility and Ethics in Washington (Crew), said in an interview earlier this month. The push to disqualify Trump is likely to play out at the state level in parallel to both the federal and state cases criminally charging Trump and allies in connection with their efforts to overturn the election. The left-leaning group Free Speech for People has already sent letters to election officials in 10 states urging them to declare Trump ineligible to run for office under the 14th amendment. Crew is also preparing to file litigation in several states to disqualify Trump from the ballot, Bookbinder said.

“’It’s really important to resolve this as soon as possible and definitely before the election and not afterwards,’ said Edward Foley, a law professor at the Ohio State University. ‘I am worried that if this doesn’t get resolved definitively, this issue could arise on January 6, 2025 if Trump were to win the electoral college having been on the ballot.

“’You could envision an effort to try and disqualify Trump after he’s won. And I think that would be a disaster. That would be a real constitutional crisis,’ he added.

“Even if Trump winds up being constitutionally disqualified, many Americans may chafe, especially in the midst of a politically heated election year, at not being able to vote for their preferred candidate.

‘Viscerally in a democracy we don’t like the idea that we’re not allowed to vote for someone who we might want to vote for,’ Foley said. ‘On the other hand, Barack Obama might actually be a pretty strong candidate for the Democratic party right now … he’s constitutionally disqualified. However much Americans or Democrats might want to nominate Barack Obama, it’s just constitutionally not permissible to do so.’

“The venue for the disqualification efforts could vary by state – it may be secretaries of state, boards of elections, or state courts that hear the challenges. ‘As a practical matter, the first time a state official decided that Trump was disqualified under Section 3, my guess is it would shoot up to the supreme court real fast and, I don’t know, who knows what the answer would be,’ said Michael McConnell, a law professor at Stanford who has been more skeptical about the use of the 14th amendment to disqualify Trump.

“’The amendment should be interpreted as … an enormous last resort and maybe January 6 rose to that level. It certainly was a much more serious civil disturbance than we usually see. But whether it’s actually an insurrection. I think it’s a bit of a stretch,’ he said. ‘There were hundreds of participants in the January 6 incursion who have been criminally prosecuted and none of them have been charged with insurrection. Trump is one step removed.’

“But Calabresi said that Trump could be disqualified under the 14th amendment, even absent a formal insurrection charge. He noted that the standard for proving Trump engaged in an insurrection would be lower in the civil cases to disqualify him than in the criminal prosecutions.

“McConnell said his skepticism of disqualification was not intended as a defense of Trump, but rather a concern over what would happen if candidates started frequently trying to disqualify their rivals from the ballot.

“’I don’t want to see him water down the meaning of these words so that bringing disqualification motions against your political opponents becomes yet another aspect of our dysfunctional legal and electoral system,’ he said.”

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