Posted on 08/25/23
| News Source: FOX45
Former President Donald Trump surrendered to law enforcement in Fulton County, Georgia Thursday night following charges that he tried to overthrow the results of the 2020 election in that state.
Trump now faces four indictments and 91 criminal charges for: Hush money payments he made to sex workers before the 2016 election in Manhattan court. His alleged illegal retention of classified documents following his term as president. And a separate federal case where he is accused of trying to overthrow the 2020 election and participating in the Jan. 6, 2021 riot at the Capitol.
Some legal experts argue his role in Jan. 6 disqualifies him from running for President because of Section 3 of the Fourteenth Amendment, also known as the Disqualification Clause. In summary, this clause says a person cannot hold any office in the United States if they have previously taken an oath as an officer of the United States and have engaged in an insurrection or rebellion.
The full text of the amendment reads:
"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."
A University of Pennsylvania Law Review article, penned by two conservative constitutional scholars, also members of the Heritage Foundation, asserts the disqualification clause could be invoked against Trump. The article lays out several reasons for their position:
Other legal experts argue this can not be applied to Trump.
There are a few reasons that have been expressed, but two major issues are historical context and lack of legal precedent. Section 3 was passed after the Civil war, following an attempt to reintroduce Confederate lawmakers to Congress. It has seldom been used, and -- when it has -- it was mainly for reasons related to the Civil War.
It’s unclear if this provision was intended to apply to present day.
The absence of legal precedent further complicates matters. The Supreme Court has not ruled on these specific issues of Section 3, and there is still the question of whether Trump’s actions amounted to an insurrection or rebellion.
Another issue is more technical: under the law, is a president considered an officer of the United States? That question is triggered by this portion of Section 3:
"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, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof."
Supreme Court precedent has addressed a similar issue the 2010 case called Free Enterprise Fund v. Public Company Oversight Board. In the main opinion, Chief Justice Roberts wrote, “The people do not vote for the ‘Officers of the United States.’ They instead look to the president to guide the “assistants or deputies subject to his superintendence." By that logic, it would seem as though the court would not classify a president as an officer in the context of the disqualification clause.
The bottom line is there are arguments on both sides, but limited precedent and historical context make it unclear whether or not this section of the Constitution excludes Trump from running.
Should someone with proper legal standing try to use Section 3 against Trump, it is very likely Congress and the Supreme Court would become involved to address the complex issue.