The latest salvo came Saturday in The Atlantic magazine, from liberal law professor Laurence Tribe and J. Michael Luttig, the former federal appellate judge and prominent conservative who’s become a strong critic of Trump’s actions after the election.
Not all in the legal community agree – and what the scholars are proposing would need to be tested in court.
Yet Luttig and Tribe’s writings capture a conversation about the Constitution and the 2021 insurrection that is likely to grow heading into the 2024 election season.
They and others base their arguments on a reading of part of the 14th Amendment, a post-Civil War provision that excludes from future office anyone who, previously, as a sworn-in public official, “engaged in insurrection or rebellion … or [had] given aid or comfort to the enemies” of the government.
The pair write: “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 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.”
Tribe expanded on this message in a joint interview with Luttig on CNN Saturday evening, calling it “a monumental issue, the most important constitutional issue of our day.”
“Stay tuned. This is going to be a saga that lasts between now and the election,” Tribe told CNN’s Jim Acosta.
Luttig similarly told CNN their argument is rooted in “the actual meaning under the original understanding of the Constitution.”
Law review scrutinizes Trump
Just last week, two members of the Federalist Society, a legal organization that has substantial sway among conservative legal thinkers, released a law review article making a similar argument.
“In our view, on the basis of the public record, former President Donald J. Trump is constitutionally disqualified from again being President (or holding any other covered office) because of his role in the attempted overthrow of the 2020 election and the events leading to the January 6 attack,” law professors William Baude and Michael Stokes Paulsen wrote for the University of Pennsylvania Law Review. “The case for disqualification is strong.”
In writing about Trump’s speech from the Ellipse on January 6, 2021, to his supporters who then overran the Capitol, Baude and Paulsen said Trump delivered a “general and specific message” that the election was stolen, calling on the crowd to take immediate action to block the transfer of power before falling silent for hours as the insurrection progressed.
“Trump’s deliberate inaction renders his January 6 speech much more incriminating in hindsight, because it makes it even less plausible (if it was ever plausible) that the crowd’s reaction was all a big mistake or misunderstanding,” they write.
The law professors argued current and former officeholders who took part in supporting or planning the efforts to overturn the election for Trump should also be “stringently scrutinized” under the Constitution should they seek bids for future public office.
Baude and Paulsen also noted that Trump’s “overall course of conduct disqualifies him” from eligibility as a candidate, regardless of whether he is convicted of criminal charges related to the 2020 election – which he now faces in Georgia state court and in federal court – or whether he is held liable in a major civil conspiracy lawsuit related to the attack.
“If the public record is accurate, the case is not even close. He is no longer eligible to the office of Presidency,” the law review article said.
The pair also looked at the historical intentions of this section of the 14th Amendment, which barred Confederates after the Civil War from holding office again.
“Not since the Civil War has there been so serious a threat to the foundations of the American constitutional republic,” Baude and Paulsen wrote about the Capitol attack and Trump’s illegitimate attempt to hold on to power.
They note that more people died and were injured as a result of the January 6, 2021, attack than in the 1861 Battle of Fort Sumter that began the Civil War.
Question for courts
While the articles from legal scholars amount to opinions at this time, it’s possible the court systems in various states could be asked to look at Trump’s viability as a candidate in 2024 – especially if secretaries of state or other officials disqualify Trump from their ballots.
Luttig and Tribe acknowledge the question of Trump appearing on ballots in 2024 might ultimately have to be decided by the Supreme Court.
“The process that will play out over the coming year could give rise to momentary social unrest and even violence. But so could the failure to engage in this constitutionally mandated process,” Luttig and Tribe write.
Previously, advocacy groups used the 14th Amendment to contest the ability of Republican members of Congress Marjorie Taylor Green and Madison Cawthorn to be ballot candidates in 2022 because of their vocal support of the Capitol rioters. But judges decided neither could be disqualified.
However, one convicted Capitol rioter, Couy Griffin, was removed by a judge from an elected county office in New Mexico.
This story has been updated with additional information.
