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How the Court Should Deal with Trump Disqualification

Robert S. McElvaine: "If it wants to uphold the Constitution, the Court really has no choice but to find that Donald J. Trump is ineligible to hold the presidency again. Failure to do so would be a step towards Trump’s stated goal of terminating the Constitution."
Published:February 8, 2024

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By Robert S. McElvaine

The Supreme Court will be hearing arguments this week in the case of Trump v. Anderson. In two excellent recent essays, historian Timothy Snyder makes it absolutely clear that if the justices examine the context and intent of those who wrote the Fourteenth Amendment, Donald Trump is disqualified from ever holding the office of president – or any other office under the United States – again.

Let us begin with the text of Section 3 of the amendment:

“No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.”

Some argue, absurdly, that the presidency is not an “office … under the United States.”

Utilizing briefs for the case researched by other historians, Snyder points out:

“The Constitution of 1787 describes the president as an officer holding an office. The president who held office in 1868, at the time of the ratification of the Fourteenth Amendment, called himself an "officer." The chief drafter of Section 3 of the Fourteenth Amendment, John Bingham, applied the word "officer" to the president. Bingham explicitly said that his phrasing applied to the presidency. When the issue arose in debate over the Fourteenth Amendment, it was understood that Section 3 applied to the president.”

As for the argument that a conviction of insurrection is necessary to disqualify someone, the amicus brief submitted by twenty-five historians shows conclusively that the "decision-makers crafted Section 3 to cover the President and to create an enduring check on insurrection, requiring no additional action from Congress."

Some current arguments assert that the disqualification provision was intended to apply only to those who had engaged in the rebellion of 1861-65. That, too, is refuted by a look at what those who created the Amendment said at the time. The amicus brief by five other historians explains:

“Five years and seven hundred thousand war deaths later, the framers of the Fourteenth Amendment hoped not only to prevent a resurgence of secessionism but also to protect future generations against insurrectionism. An early draft of Section Three limiting its reach to those who had participated in ‘the late insurrection’ was eliminated in favor of language that disqualified both past and future insurrectionists who had taken an oath to uphold the Constitution. ‘This is to go into our Constitution and to stand to govern future insurrection as well as the present,” said one senator during floor debate.’”

The twenty-five historians’ brief includes the following:

“Republican Senator Peter Van Winkle of West Virginia said, ‘This is to go into our Constitution and to stand to govern future insurrection as well as the present…’ To this end, the Amnesty Acts of 1872 and 1898 did not pardon future insurrectionists.”
In his second piece, published today, Snyder uses another amicus brief by legal scholars Akhil Reed Amar and Vikram David Amar to make the point that Section 3 targeted

“… not all oath-breakers, not all insurrectionists, but precisely oath-breaking insurrectionists. 

That is Trump: an oath-breaking insurrectionist. And in the most extreme sense, since he broke his oath while still in office in a way that undid the purpose of his office, which is the most important office in the land.”

If it wants to uphold the Constitution, the Court really has no choice but to find that Donald J. Trump is ineligible to hold the presidency again. Failure to do so would be a step towards Trump’s stated goal of terminating the Constitution.

The huge problem is that removing Trump from the ballot by judicial decision would almost surely incite his cult followers to massive violence. Trump himself has said that “chaos and bedlam” would ensue if the Court decided against him. (Notice that Trump’s warning of “chaos and bedlam” is, in essence, another call for insurrection against the United States.)

The only hope for driving a stake through the heart of the hate-fueled authoritarian movement Trump heads is for him and the party that has turned against democracy at his direction to be decisively rejected by the voters. There is, of course, no guarantee that that will happen, and some of the current opinion polls are not encouraging on that score. I think, though, when it comes down to it in the fall, a substantial majority of the American electorate will vote to preserve the American Experiment in freedom and government by the people.

What, then, can the Court do that will preserve both the opportunity for Trumpism to be defeated by the voters and the clear intent of the Constitution to bar the Insurrectionist-in-Chief from office?

The text of Section 3 says “No person shall … hold any office …” It does not say that an insurrectionist is banned from seeking an office. Technically, there is no prohibition for such a person being on a ballot.

That distinction could provide a way for the Court to get around the dilemma it faces by ruling only that the Amendment does not require that an insurrectionist be removed from ballots and leaving a clear implication that in the event Trump were to win, the Court would have to follow the unmistakable intent of the Fourteenth Amendment and prevent him from taking office.

Such a post-November 5 decision to block the selection of the voters would almost certainly lead to even greater “chaos and bedlam” than a decision now barring him from running. But the Court indicating that Trump is an insurrectionist and should not be permitted to hold the presidency might lessen the possibility that he might win the election.

If he were to win and be disqualified from taking office, we would be left with whatever loon he chooses as his running mate becoming president (unless s/he also participated in the insurrection).

In a situation where there are no good options, a “you can run, but you can’t take office” decision appears to be the least bad one.