Today in a remarkable development FBI agents raided Donald Trump’s home at Mar-a-Lago. The search may be related to classified documents that Trump allegedly took from the White House illegally. (The search could have been about something else, like January 6-related activities; until we see the search warrant or get other information, we don’t know.)
Some have pointed to a federal statute about concealing, removing, or mutilating government documents. Part of that statute provides for disqualification from office for those who have violated it.
But that statute cannot trump the Constitution, which sets the exclusive qualifications for President. So this is not a path to making Trump legally ineligible to run for office. (That’s a different matter than the political point—it is probably going to be hard for a convicted felon, if Trump is convicted of any felony, to be successful running for office.)
But there is a way to disqualify Trump for office, and it should have already happened. As Ned Foley explained back in October on ELB:
All the current talk of Donald Trump running again in 2024 assumes that he’s eligible to serve as president if reelected. He’s not, or at least there’s a strong argument that he isn’t.
In fairness to America’s voters, this argument ought to be resolved conclusively in court long before voters cast their ballots in 2024—and not on January 6, 2025, when Congress next meets to count electoral votes.
Section 3 of the Fourteenth Amendment explicitly bars from the presidency, as well as any other “office, civil or military, under the United States” anyone who “having previously taken an oath … as an officer of the United States … to support the Constitution of the United States, shall have engaged in insurrection … against the same.” Given all that we now know about Trump’s role in fomenting the insurrection at the Capitol this past January 6, including the extent to which he was pushing Vice President Pence to act upon the Eastman memo—and urging the crowd on January 6 to pressure Pence to repudiate the constitutionally proper electoral votes cast for Joe Biden—there’s already a powerful case to be made that Trump “engaged in insurrection” within the meaning of this constitutional clause, thereby making Trump ineligible to be inaugurated again as president on January 20, 2025. This ineligibility argument may grow even stronger after the House select committee completes its ongoing investigation.
Assuming that section 3 of the Fourteenth Amendment does bar Trump from being president again, Trump would be in the same category as former president Obama. Both Obama and Trump would be constitutionally ineligible for the new presidential term beginning on January 20, 2025—Obama for one constitutional reason, having already served two terms, and Trump for another, having “engaged in insurrection” while sworn to uphold the Constitution.
Suppose, for argument’s sake, that Obama runs in 2024 despite his constitutional ineligibility to serve again as president—and suppose that Obama wins a majority of electoral votes. Congress nonetheless would be duty-bound to disqualify those electoral votes when it meets in joint session on January 6, 2025 to count the electoral votes. Members of Congress take an oath to uphold the Constitution; Obama being ineligible to serve as president, members of Congress would be obligated to disqualify the constitutionally invalid electoral votes cast for him.
The same point applies to electoral votes cast for Trump, on the assumption that he too is constitutionally ineligible to serve again as president, but with the reason for his ineligibility being different from Obama’s.
It’s easy to imagine Democrats in Congress on January 6, 2025 objecting to electoral votes cast for Trump on this basis. What about those Republicans, like Mitt Romney and Lisa Murkowski, who already voted to convict Trump in his second impeachment trial because of his role in inciting the insurrection this past January 6? One might think that these GOP Senators would feel the tug of constitutional duty to disqualify electoral votes cast for Trump in 2024 on grounds of his ineligibility to serve again as president having “engaged in insurrection” within the meaning of the Fourteenth Amendment.
It might seem inconsistent, or at least ironic, for Congress to disqualify Trump on January 6, 2025 because Trump participated in an effort to negate congressional confirmation of Biden’s electoral victory on January 6, 2021. But the improper grounds for objecting to Biden’s electoral votes, raised by Senator Josh Hawley among others, are very different from the appropriate grounds for objecting to electoral votes cast for a candidate ineligible to serve. The objection that Hawley made was not that Biden was ineligible to be president, but instead that the electors who cast their votes for Biden had not been validly appointed. That kind of objection to an elector’s appointment, when the state itself has not challenged the elector’s appointment (by sending to Congress some statement that the appointment was invalid under state law), is not constitutionally cognizable in Congress, for reasons cogently stated by Rep. Liz Cheney in her memo to colleagues in advance of the January 6, 2021 joint session. An objection that accepts the validity of an elector’s appointment, but claims that the elector cast an electoral vote for a constitutionally ineligible candidate, is an altogether different matter in the context of the Twelfth Amendment’s joint session of Congress for the receiving and counting of electoral votes sent by the states.
But procedurally Congress need not, and should not, wait until January 6, 2025 for a definite pronouncement on whether section 3 of the Fourteenth Amendment renders Trump ineligible to serve again as president. Instead, Congress should enact a law now authorizing the Justice Department to file a civil suit in federal court to adjudicate Trump’s ineligibility. That way, if Trump is judicially ruled ineligible—becoming constitutionally equivalent to Obama—his name can be kept off the ballots in 2024, and no voter will waste a vote by casting a ballot for a constitutionally ineligible candidate.
Indeed, the argument can be made that unless Congress enacts this kind of statute to enforce section 3 of the Fourteenth Amendment, no individual—including Trump—can be deemed ineligible based on the existence of this constitutional provision alone. As Professor Gerard Magliocca details in a forthcoming law review article on section 3 of the Fourteenth Amendment, a circuit opinion from 1869 (written by Chief Justice Chase riding circuit) holds that this constitutional provision is not enforceable without an implementing congressional statute. Thus, without this kind of implementing statute, if any lawsuit attempted to keep Trump’s name off the ballot, in either the 2024 presidential primaries or the November general election, that lawsuit easily could fail based on the 1869 precedent regardless of whatever other obstacles it might face. Relying on that 1869 precedent, one could argue even further that on January 6, 2025, Congress itself is estopped from invoking section 3 of the Fourteenth Amendment unless it previously enacted an implementing statute that specifically adjudicated Trump’s ineligibility before the 2024 election, including the primaries, got underway.
Thus, for anyone wanting to contemplate the possibility that section 3 of the Fourteenth Amendment disqualifies Trump from being inaugurated president on January 20, 2025, it is imperative that Congress enact an implementing statute well in advance of 2024. As a practical matter, although there should be bipartisan support for a way to settle this matter judicially before the 2024 election—so that the issue does not threaten to produce another crisis on January 6, 2025—Congress needs to pass this law prior to the 2022 midterms, after which partisan calculations may block sensible legislation in the national interest on this issue.
Moreover, there’s a special reason why enacting this statute now should require only a simple majority vote in the Senate, without the need to survive the usual filibuster requirement of 60 votes. On January 6, 2025, if there is an objection to counting electoral votes cast for Trump on the ground that he’s ineligible to serve as president, the Senate must vote on this objection after two hours of debate; it is not susceptible to a filibuster.
Thus, a statute enacted now—to settle the question of Trump’s eligibility before 2024, so that it doesn’t need to be considered on January 6, 2025—should not be subject to a filibuster. If necessary, the Senate could make that parliamentary ruling; it would be an exercise of the so-called “nuclear” option, but it shouldn’t seem so explosive because it would be narrowly tailored specifically to avoiding a much more explosive filibuster-proof scenario on January 6, 2025. Moreover, the bare minimum of fifty Senate votes to exempt just this piece of legislation from normal filibuster rules might not need to include Senators Manchin and Sinema; it’s conceivable, for example, that Senators Romney and Murkowski would want to enact this statute to implement section 3 of the Fourteenth Amendment, precisely to protect themselves from a potentially difficult situation on January 6, 2025.
In any event, if this implementing statute were to pass Congress with solely Democratic votes, there’s still a reason not to think of it as one political party attempting unilaterally to deprive the opposing political party of its preferred presidential nominee—and I say this as someone concerned about one-party electoral reforms imposed against the unified opposition of the other party. The reason is that the statute itself would not be disqualifying Trump (or anyone else) from eligibility. The statute instead would create a mechanism for adjudication of the question in an Article III federal court. In a case filed by the Justice Department on behalf of the United States as plaintiff, Trump as defendant would have every due process right to present evidence and arguments that he should not be considered ineligible as having “engaged in insurrection” within the meaning of the applicable provision. Were Trump to lose this judicial case, it would not hold up on appeal unless and until the U.S. Supreme Court, dominated by six conservative justices (including the three appointed by Trump himself) either affirmed this lower-court ruling or at least let it stand unreviewed by the high Court. This judicial protection for Trump is reason to consider the statute to be fair, both to Trump himself and to all American voters who want him to be a candidate again in 2024, even if the statute were to pass with only Democratic support in Congress.
To sweeten the deal, however, in order to increase the chances that at least some Republicans like Romney and Murkowski would support it, a provision could be added to this implementing statute to make explicit that unless an individual is adjudicated ineligible on Fourteenth Amendment grounds in advance of an election, it shall be off-limits to Congress to object to the individual’s election afterwards. That way it would be clearly improper for any member of Congress to object to Trump’s victory on January 6, 2025 unless he already had been judicially disqualified from being a candidate before voting starts in the 2024 primaries.
Consider the basic point here the electoral equivalent of the familiar wedding refrain: “Speak now or forever hold your peace.” Simply put, the time for disqualifying Trump from being on the ballot in 2024 is before those ballots are cast, not after he’s won the election.