During last week’s debate among Republican candidates in Milwaukee, a question posed by Fox TV moderators sparked heated moments of discussion. The moderator asked whether, even if former President Trump were to be convicted, they would support him if he became the party’s nominee. While six out of the eight candidates raised their hands, implying they would respect the Republican voters’ choice no matter what, Chris Christie and Asa Hutchinson opposed this view. When Christie stated that Trump’s actions were not befitting of the presidential office regardless of court outcomes, the audience responded with jeers. Hutchinson, on the other hand, brought up the possibility of Trump’s disqualification based on the 14th Amendment of the Constitution, thus elevating a legal debate that some legal experts had been engaging in to the forefront of the country’s agenda.
The 3rd clause of the 14th Amendment of the American Constitution stipulates that any state or federal official who has taken an oath to uphold the Constitution cannot “engage in insurrection or rebellion against” the state and cannot “give aid or comfort to its enemies.” This restriction can only be lifted by a two-thirds majority vote in both chambers of Congress. The 5th clause of the Amendment also emphasizes that Congress is responsible for its enforcement.
This Amendment vested Congress with the authority to decide whether those who fought on the side of the Confederacy during the American Civil War that ended in 1865 could hold office in the new era. The most recent application of this clause was in 1919, preventing Victor Berger, the first Socialist elected to Congress and convicted under the Espionage Act, from taking office.
A growing number of legal experts argue that given Trump’s role in the events of January 6th and his efforts to overturn election results, it would not be feasible for him to regain the presidency. Two out of the four lawsuits against Trump pertain to attempts to overturn legitimate election results. One is a federal case brought by a special prosecutor appointed by the Department of Justice, and the other is a case initiated by the state of Georgia. While Trump could potentially dismiss the federal case by appointing an accommodating Attorney General if he were to be elected president, he lacks the authority to drop the Georgia case.
Even without this authority, if Trump were to be elected president, we can anticipate that over time, the legal and political impact of the Georgia case would diminish. The 14th Amendment, however, holds the potential to halt Trump’s candidacy before the November 2024 elections. According to the timeline of the Georgia case, Trump might be found guilty of attempting to change election results in the lead-up to the 2024 autumn elections, just before the elections take place.
In early August, an article published by two conservative legal scholars who are members of the Federalist Society in the Pennsylvania Law Review triggered renewed discussion about the 14th Amendment, prompting Hutchinson to raise this issue during the debate. Legal experts who share this perspective argue that due to his support for the insurrection on January 6th, Trump is disqualified regardless of the lawsuits brought against him.
These legal experts suggest that in the upcoming elections, officials of the electoral college should disqualify Trump by not putting his name on the ballot, as it is evident that he violated the constitutional oath. They claim that Congressional approval is not necessary for this action. Given that a similar case has already been filed in Florida, efforts to disqualify Trump are likely to intensify. If Trump is found guilty in both federal and state-level cases, the number of these cases will likely increase.
Although the legal proceedings are likely to reach the Supreme Court, it might be challenging for them to conclude before the November elections. However, if some states persist in not putting Trump’s name on the ballot, it could trigger a new legal and political crisis. There’s even the possibility of violent actions by some pro-Trump groups. Blocking his presidential candidacy on legal grounds could provide Trump with an opportunity to play the victim card. Opponents of invoking the 14th Amendment argue that preventing Trump through the electoral process would prevent the perception of obstructing the will of the voters.
While the legal arguments for Trump’s disqualification are legally strong, those who fear that this could lead to political chaos believe that the only way to get rid of Trump is through the ballot. However, given that Trump still hasn’t accepted the 2020 election results, there’s no guarantee that he would accept defeat again. This highlights a new dilemma between adhering to the law and respecting the will of the people within the context of American democracy.