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Leftist Media Resurrects the Lie That the Constitution Bars Trump From Holding Public Office

AP Photo/Charlie Neibergall

Remember when talking heads on the left kept trying to convince people that Democrats could use the 14th Amendment to stop former President Donald Trump from becoming president again? The effort failed miserably because most people—including those who despise Trump—knew that it was a bunch of folderol.

But now, they are at it again.

Leftist media outlets are publishing pieces hoping that this time, they can successfully make the case for keeping the former president off of the ballot. They are likely to be disappointed.

Let's start with Donald K. Sherman, who wrote a piece titled: "The Constitution bars Trump from holding public office ever again."

In the piece, the author referenced a law review article repeating the argument that Section 3 of the 14th Amendment bars Trump from holding office again because he supposedly incited the Jan. 6 riot at the U.S. Capitol building. 

Last week, law professors William Baude of the University of Chicago and Michael Stokes Paulsen of the University of St. Thomas — both members of the conservative Federalist Society — argued in a law review article that Trump is already constitutionally forbidden from serving in public office because of Section Three of the 14th Amendment.

This section, also known as the Disqualification Clause, bars from office any government officer who takes an oath to defend the Constitution and then engages in or aids an insurrection against the United States. Only a two-thirds majority of both houses of Congress can act to remove such disability.

It should not come as a surprise that Trump meets this standard. All three branches of the government have identified the attack on the Capitol as an insurrection, with multiple federal judges, bipartisan majorities in the House and Senate, as well as the bipartisan Jan. 6 House select committee, citing Trump as its central cause.

Not to be outdone, Harvard Law professor and author Laurence Tribe also chimed in, making the same insipid argument. He argued that the Constitution prevents Trump from holding office even though he has never even been charged or convicted of inciting the riot: 

Having thought long and deeply about the text, history, and purpose of the Fourteenth Amendment’s disqualification clause for much of our professional careers, both of us concluded some years ago that, in fact, a conviction would be beside the point. The disqualification clause operates independently of any such criminal proceedings and, indeed, also independently of impeachment proceedings and of congressional legislation. The clause was designed to operate directly and immediately upon those who betray their oaths to the Constitution, whether by taking up arms to overturn our government or by waging war on our government by attempting to overturn a presidential election through a bloodless coup.

The former president’s efforts to overturn the 2020 presidential election, and the resulting attack on the U.S. Capitol, place him squarely within the ambit of the disqualification clause, and he is therefore ineligible to serve as president ever again. The most pressing constitutional question facing our country at this moment, then, is whether we will abide by this clear command of the Fourteenth Amendment’s disqualification clause.

Last, but not least, we have The Daily Record, whose Editorial Advisory Board published an op-ed arguing that "Trump should be kept off the ballot." The author insisted that the "Maryland State Board of Elections is obligated under the U.S. Constitution to refuse to list Donald Trump on the Republican presidential primary ballot." The reasoning is predictable:

All write-in ballots for Mr. Trump should be considered null and void. He is now and forever disqualified from holding any federal or state office under Section 3 of the 14th Amendment by having given aid and comfort, at the very least, to those engaged in insurrection and rebellion against the United States by seeking to overturn the election of Joseph Biden as president.

The obvious question is: If it is true that the 14th Amendment would bar Trump from holding office again, why haven't more Democrats taken this action against the Orange Man What Is Bad™? Would they not jump at the opportunity to take their most feared enemy out of the equation altogether?

The answer is simple: Democrats aren't pursuing this line of attack because it is utter hogwash. 

In a rebuttal piece, author Dan McLaughlin poked holes in the case for using the 14th Amendment against Trump

For starters, he notes that even if Trump were somehow guilty of inciting the "insurrection," this does not "fall within the Section 3 categories." To bolster his argument, McLaughlin quoted Harvard Law professor Noah Feldman:

The 14th Amendment does not use the word “sedition,” which is often employed to describe verbal acts that organize or plan an insurrection. That absence could be used by Trump or his lawyers to argue that even if the march on the Capitol was an insurrection, and even if Trump verbally helped bring it about, he was not himself “engaged” in insurrection for purposes of the 14th Amendment ban on holding office.

Secondly, McLaughlin argues that Trump's lack of action during the riot could not be interpreted as "engaging in insurrection or rebellion." While he criticizes the former president for not doing enough to stop the violence, he does not "see what basis there is in the law to conclude that a few hours of lassitude at a remove from the action would meet this active standard."

The author reiterates his argument that "if incitement before the fact is insufficient, and if active engagement rather than anyone's state of mind is the relevant standard," Trump's inaction does not mean he incited the "insurrection."

Lastly, McLaughlin dismisses the notion that Trump challenging the outcome of the election constitutes a "bloodless coup d'etat." Whether the former president's claims about the election are true or false, his protestations do not equate to an assault on government sovereignty. 

It seems clear to me that the Democrats are running a long way to make the 14th Amendment work for them. But the fact of the matter is that Trump did not incite the Jan. 6 riot. In fact, he urged his supporters to "peacefully" protest the outcome, which is activity that is protected by the First Amendment.

But let's cut through the bullcrap. The Democrats making this argument know that it holds less water than the shot glasses from which they must be using to drink the amount of vodka needed to make such a contention. These suppositions are a desperate effort to keep their arch-nemesis from ever occupying the White House again. It's as if launching a series of politically-motivated indictments isn't enough for these folks. Nevertheless, the fact remains: If they don't want Trump to win, they had better arrest him or defeat him at the ballot box.

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