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.

Historian Joshua Zeitz in POLITICO Magazine offers some interesting historical context for the current debate on whether section 3 of the Fourteenth Amendment applies to Trump. In particular, he describes the House of Representatives session when ex-Confederates turned up seeking to be sworn in as new members of Congress. His conclusion:

” … the history behind the 14th Amendment proves its general applicability. Conspiring, whether by violence or coercion, to overturn the outcome of an election is precisely what Confederate officers and officeholders did. They didn’t like the outcome of the 1860 election, so they tried to dismantle the United States, first by walking away, then by force.

“That was what Section 3 called ‘insurrection or rebellion’ against the United States government. It’s hard to argue that the same thing didn’t happen in the aftermath of the 2020 election. For symbolic measure, insurrectionists carried the Confederate battle flag into the Capitol on Jan. 6, marching in lock step with an earlier generation of Americans who aspired to end our system of government. That it was a bungled attempt, and that it didn’t work, doesn’t make it different.”