Oh no, we’ve found ourselves agreeing with some conservatives. And not just any conservatives, but some men from the Federalist Society of all places—the legal organization that’s responsible for the extreme right-wing takeover of the Supreme Court.
Two prominent conservative law professors are arguing that Trump should not be allowed to run for President. I think there are a plethora of reasons why Trump shouldn’t ever hold any office again, but what does the law say? They are arguing that he engaged in insurrection, and that that’s a disqualifying offense.
Professor William Baude and Michael Stokes Paulsen set out to try and answer an important Constitutional question regarding Presidential eligibility. They both admit that they weren’t sure of what their conclusions would be. What they decided on after a year of study may come as a surprise, given their activity in the famously conservative Federalist Society.
Yet as Baude told the New York Times, discussing their findings, which will be published next year in The University of Pennsylvania Law Review: “Donald Trump cannot be president — cannot run for president, cannot become president, cannot hold office — unless two-thirds of Congress decides to grant him amnesty for his conduct on Jan. 6.”
Looking at the U.S. Constitution itself, I can see how they came to this verdict. The 14th Amendment, Section Three, states that someone who took an oath to support the Constitution would be prohibited from holding any government office if they then, “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.” Only a ⅔ vote by each the House and the Senate can lift this ban. I don’t see how anyone can look at Trump’s actions and not see that he, at a minimum, gave aid or comfort to enemies.
There is also precedent for holding politicians to account for their January 6th actions using the 14th Amendment. At least one public official was removed from office after taking on a “leadership position” in the insurrection. I don’t think anyone had a bigger leadership position that day than Trump.
The conservative professors are focusing on January 6th, which I will get to, but I actually think there are other incidents from the former president that could be applied as well. Trump has a love for dictators, having repeatedly praised Putin and Kim Jong Un. Who knows all of what he disclosed while President and after; the documents he (allegedly, but also admittedly) stole and kept already showed war plans. The depths of his actions are still yet to be fully uncovered. But I understand why January 6th provides the best case for their argument!
Trump riled up his rabid supporters to attack the capitol. And as president, he did nothing to stop them for hours. He has promised to give them pardons if he became president again. These are the actions of a traitor! Which, speaking of, brings me to why this section of the Constitution was created in the first place. Picture it, 1868, post-Civil War. The 14th Amendment was mostly enacted to extend rights to the formerly enslaved. But Section Three came about when Southerners wanted to send secessionists to Congress after their loss. They deemed that this was against the country, an act of insurrection, and that they were enemies! What would we call those who seek to overturn a democratic election?
Those who stormed the Capitol are in fact, traitors. And their dear leader was Donald Trump. He said he loved them, in a taped statement, even while the bloodshed was still fresh. He surely sounds like a traitor to me. Watching the mainstream news though, I feel like people still tip-toe around calling him what he is. Traitor, insurrectionist, anti-American, etc. Maybe now that he has been charged with felonies related to January 6th, things will change a bit. But I think every rational person can see that Trump cannot be trusted. At the heart of the case Baude and Paulsen seem to be making is that someone who is fundamentally unAmerican should not be President. Nothing seems more un-American than trying to overturn the will of the people. For centuries, men (unfortunately no women, yet) have accepted their defeat. They allowed for the peaceful transfer of power because that is what has made America so special. In modern times, they have shown up at the inauguration, knowing the world is watching, to show that democracy is more important than any single individual. But Trump couldn’t even do that.
Trump has never been about the country. He has never been about anything other than protecting himself and his interests. His supporters have hijacked the idea of loving America and freedom. And we must not let them continue to get away with this fraudulent narrative.
Baude and Paulsen will be publishing their article in the University of Pennsylvania Law Review. I hope that it is circulated widely and discussed in the mainstream news. Public opinion is important and Trump and his cultists have continuously gaslit much of the country into thinking every negative statement made against him is some liberal conspiracy. But here we have two Federalist Society members who are making a sound, legal argument for why he should never become President. Barring Trump from holding government office should be the normal, default position and I hope these two professors can help to make this a reality.
(via The New York Times, featured image: Brent Stirton/Getty Images)
