Attorney Sol Wisenberg said there ‘is a legal path for states to TRY to remove Trump from the ballot,’ but he believes ‘that it will fail’
Some people on the right and the left have suggested that former President Trump may be disqualified from running for president in 2024. However, many legal experts have dismissed this theory as not only highly improbable but also dangerous.
The legal argument centers around the idea that Trump could be barred from appearing on the ballot based on Section 3 of the 14th Amendment to the US Constitution, known as the disqualification clause. This provision prohibits individuals engaged in “rebellion or rebellion” against the United States, or those involved in such activities, from holding public office.
BLEEDING GUMS?
Additionally, the section includes a provision that allows Congress to “remove such disqualification” by a “two-thirds vote” of both the House and Senate.
However, according to multiple legal experts, the argument for the disqualification clause holds no water.
George Washington University law professor Jonathan Turley says there are “good faith arguments in favor of this claim” but he believes the theory is “not just dubious but dangerous.”
“The amendment was initially designed to address those who participated in the actual insurgency, which resulted in hundreds of thousands of casualties,” Turley explained. “Supporters of its broadest interpretation want to circumscribe ‘insurrection or insurrection’ to encompass unverified claims and challenges of election fraud.”
Turley voiced his longstanding criticism of Trump’s January 6 speech, but described the events at the Capitol that day as a “protest that escalated into a riot.” Turley believes that this distinction is crucial when applying the 14th Amendment. Notably, Trump has not been formally charged or convicted of sedition or incitement to sedition.
“According to these proponents, Trump could be disqualified from the ballot without any formal charge of rebellion or sedition,” Turley commented.
Turley also notes that proponents of this interpretation “argue that congressional action is not necessary.” Consequently, “state and federal judges can disqualify individuals based on their election challenges and lawsuits if they are deemed to support the insurgency.”
Hans von Spakovsky, senior legal fellow at the Heritage Foundation, told US Newzs Digital he believes there is no legal basis under the 14th Amendment to prevent Trump from appearing on the ballot.
Von Spakovsky noted that liberals have made similar claims against many conservatives ahead of the 2022 midterm elections, citing the Jan. 6 riots as an example.
“They all failed,” Von Spakovsky stated. “Furthermore, in every discussion I’ve come across regarding this issue, nobody ever acknowledges that they treat Section 3 of the 14th Amendment as if it is currently in effect.”
Von Spakovsky emphasized the provision in Section 3 of the 14th Amendment that allows Congress, by a two-thirds vote, to “remove such a disability” under the Disqualifications Clause. He argued that the legislature has already taken steps to eliminate this clause.
“In 1872, they enacted the Amnesty Act, which effectively eliminated Section 3 disqualification, except for certain cases. This included people who had served in both Congresses before the Civil War and members of the military. Served in the Union Army and later in the Confederacy,” Van Spakowski explained.
He continued, “In 1898, Congress passed a second amnesty act that completely eliminated all of these exceptions. So, in essence, the disqualification clause was no longer in effect. It was no longer valid.”
Push to bar Trump from ballot gains steam
However, despite the challenges, some legal scholars argue that there are avenues to prevent Trump from appearing on the ballot, and this notion continues to garner attention.
Michael Sozan, a senior fellow at the Center for American Progress Action Fund, emphasized the need for a non-partisan approach, saying, “This must not become a partisan matter.” Sozan contended that, based on the straightforward language of the Constitution, Donald Trump and other officials involved in the January 6 insurrection are disqualified from seeking future public office. He pointed out that this conclusion is supported by a wide range of respected constitutional law experts spanning the ideological spectrum.
Sozan outlined multiple methods for formally implementing Section 3 of the 14th Amendment, with the most direct approach being for state election officials to disqualify Trump from their state’s ballot. While acknowledging that legal challenges are likely, he expressed hope that the Supreme Court would uphold the disqualification if its justices are committed to interpreting the Constitution’s plain language.
Nevertheless, even if efforts to remove Trump from the ballot are initiated, there is no guarantee of success, as noted by Fox News contributor and former deputy independent counsel Sol Wisenberg.
Wisenberg explained that there is a legal avenue for states to attempt Trump’s removal from the ballot but expressed skepticism about its prospects for success. He anticipated that the case would likely reach the federal courts because at least one Democratic state official might make the decision to exclude Trump from the ballot. Wisenberg believed that the issue would quickly escalate to the U.S. Supreme Court.
He further predicted that the Supreme Court would likely rule that a presidential candidate cannot be removed from the ballot without two key elements: 1) the enactment of enabling legislation by Congress, establishing a judicial process to determine if the candidate engaged in insurrection or rebellion, and 2) an actual trial conducted under the said statute.
“There is already an existing statute for this purpose, Title 18 U.S. Code, Section 2383, which pertains to rebellion or insurrection,” he added.
Title 18, Section 2383 of the U.S. Code explicitly states that anyone who “incites, initiates, aids, or participates in any rebellion or insurrection against the authority of the United States or its laws, or provides support or comfort to such actions, shall face fines under this title, imprisonment for up to ten years, or both penalties and shall be ineligible to hold any office under the United States.”
Despite calls from several states to bar Trump from the ballot, it appears unlikely that these proposals will gain traction.
Arizona Secretary of State Adrian Fontes recently mentioned on a podcast that the Arizona Supreme Court had ruled that “there’s no statutory process in federal law to enforce Section 3 of the 14th amendment,” adding that “you can’t enforce it.” Fontes expressed disagreement with this ruling, calling it “stupid,” but affirmed his commitment to follow the law in Arizona despite his disagreement.
Furthermore, despite being a vocal critic of former President Donald Trump within the GOP, New Hampshire Governor Chris Sununu, along with other state party officials, is not endorsing the long-shot effort to prevent Trump from appearing on the presidential ballot.