The 14th Amendment can’t stop Trump — at least not yet

The latest all-the-rage theory for preventing former President Donald Trump from running in the 2024 presidential election is a claim that Trump made himself ineligible under the 14th Amendment to the Constitution by instigating the January 6 “insurrection.” While millions of Americans (including me) wish Trump weren’t running again, the problem with this legal theory is that it assumes the very issue in question: that the January 6 raid on the Capitol was an insurrection (or at least a rebellion) and that Trump was involved, either directly or indirectly.

Section 3 of the 14th Amendment says, “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.”

There have been a number of recent articles by both conservative and liberal legal scholars (see here, here and here) asserting that this section disqualifies Trump from holding any public office ever again. For example, law professor Steven Calabresi, who worked in the Reagan White House and for Attorney General Ed Meese, sums up the arguments most advocates are using. Their key point is that the 14th Amendment’s disqualification clause is “self-executing,” meaning there doesn’t need to be any formal finding of guilt. Trump engaged in insurrection, therefore election officials in each state have the right — indeed, the obligation — to keep Trump’s name off of their respective state’s 2024 ballot.

Calabresi writes, “No jury verdict is required to determine whether a candidate who seeks to run for the presidency on a primary or general election ballot is: a natural born citizen, who is 35 years of age, and fourteen years a resident of the United States. Likewise, no jury verdict or act of Congress is required to keep a Secretary of States [sic] and their subordinates from printing ballots with the name ‘Donald J. Trump’ on them.”

But surely this is wrong with respect to Trump. The 14th Amendment was passed in the wake of the Civil War to prohibit Southern leaders, political and military, from holding high federal or state office. The Confederates identified with, took the oaths of and held high offices in the seceding states. It was clear they were part of the rebellion.

Moreover, if one or more of those other self-executing requirements Calabresi lists were challenged with respect to a presidential candidate, it might very well take a court to decide the matter. For example, in 2011, Trump raised baseless concerns about whether President Barack Obama was a natural-born U.S. citizen, even after Hawaii released a copy of his birth certificate. Thankfully, Trump’s effort went nowhere. But if it had gained momentum and some states decided to leave Obama’s name off the ballot, a lawsuit would have been filed and a court would have had to rule on the birth-certificate question. Likewise, a court needs to rule on whether Trump engaged in insurrection.

Without question, there were crimes committed on January 6, and perhaps before. According to the Department of Justice, more than 1,100 defendants have been charged. The charges vary, but more than half have pleaded guilty, including four who pleaded guilty to the most serious charge, seditious conspiracy. Juries have convicted most of the rest.

While seditious conspiracy is a very serious offense, it is not the same as insurrection. As the New York Times points out, “While many people have called the events of January 6 an ‘insurrection,’ the Justice Department has not charged any rioters with that crime.”

There are millions of Americans who believe that Trump instigated the January 6 riot, both by his false claims of a stolen election and his comments at the rally that preceded the violence. But there are also millions of Americans who do not believe he is guilty of any crime. In other words, Trump’s guilt is not self-evident.

And while Trump has been charged with a number of federal crimes by special counsel Jack Smith, and state crimes by Fulton County, Georgia, District Attorney Fani Willis, he has not been convicted of anything yet. Even Willis made a point of saying Trump should be presumed innocent until proven guilty.

If he is convicted, then state election officials would at least have some justification for keeping Trump’s name off a state’s ballot. But it’s highly unlikely that any of Trump’s trials will be over before the primaries start on Jan. 15 with the Iowa GOP caucus. In fact, more than half of the GOP delegates could be decided by the time Trump’s March 4 federal trial is in full swing.

Moreover, even though many Republicans in red states wish Trump wouldn’t run, it’s extremely unlikely that election officials in any red state would leave his name off a primary or election ballot. If some blue states arbitrarily decided to exclude him, that could lead to one of those “constitutional crises” the left keeps warning us about.

Trump may eventually be convicted of something that affects his ability to serve if elected, but not his ability to be on the states’ primary ballots.

Merrill Matthews is a resident scholar with the Institute for Policy Innovation in Dallas, Texas. Follow him @MerrillMatthews.