WHY COURTS SHOULD RULE TRUMP CAN’T SERVE AS PRESIDENT AGAIN

Authors:  Laurence H. Tribe and Dennis Aftergut. Laurence H. Tribe is University Professor of Constitutional Law Emeritus at Harvard University. Dennis Aftergut, a former federal prosecutor, is counsel to Lawyers Defending American Democracy.

Section 3 of the 14th Amendment states that “No person shall ... hold any office ... under the United States ... who, having previously taken an oath ... to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same."

That Disqualification Clause, inserted after the failed rebellion of the Confederacy, reflected the conviction that nobody who betrayed the oath "to support the Constitution” could be trusted to serve in office again. At least not unless a vote by “two-thirds of each House” of Congress restored the person's eligibility to serve.

It was the Constitution that Trump tried to overthrow after he lost the 2020 election, as he admitted in December when he called for its “termination” Whether by conspiring to create fake electoral slates, soliciting Vice President Mike Pence to illegally reject Congress’ election certification, or allegedly inciting his followers to overrun the Capitol during the Jan. 6, 2021, counting of electoral votes, Trump took the law into his own hands in an attempt to overturn the constitutional structure itself.

That kind of subversion of a fundamental tenet of the Constitution is precisely what the 14th Amendment has to mean by “insurrection or rebellion against” it, the very definition of disqualifying conduct under Section 3.

Nothing is more central to the U.S. Constitution’s design than the process for electing a president every four years. That process was debated vigorously during the 1787 Constitutional Convention and was embodied in several key constitutional provisions, including the so-called Vesting Clause: "The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years."

Crucially, the end of that term is determined not by what any candidate wants or believes but by the election itself. As the 12th Amendment puts it: "The Electors shall meet in their respective states and vote by ballot for President. ... The person having the greatest number of votes for President, shall be the President."

The 20th Amendment leaves no doubt about when a president’s four-year term ends: "The terms of the President and Vice President shall end at noon on the 20th day of January."

Trump cannot deny any of this but tries to get around it with arguments that run from the ridiculous to the sublime.

A typical example is his claim that he never held an appointed office “under the United States” but “only” the elected presidency. Accepting that claim would turn Section 3 into a bad joke.

Trump also has argued that his supporters won’t stand for disqualifying him and will take to the streets. That’s a possibility, but for anyone who cherishes the rule of law as the source of freedom, an even stronger concern is that one can’t have a constitutionally based nation and simultaneously ignore the words of the 14th Amendment.  Courts exist to enforce the law, not evade it.

Ultimately, the burden of decision will land at the steps of the U.S. Supreme Court. The justices will face a crossroad. To allow Trump to appear on the 2024 presidential ballot, they would need to explain why any ruling that keeps the former president in the running doesn't itself betray the Constitution.

Or they could hold Trump ineligible and trust that the American people believe enough in the Constitution to live with the results.  

Only the latter choice is faithful to our heritage and the ideals of a constitutional republic – if we can keep it.