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.