by Steve Timmer

Aug 19, 2023, 4:00 PM

Considering Sec. 3 of the Fourteenth Amendment

Several people, including commentator and anti-Trumper George Conway, have linked (on my new favorite social media site, Post) to a new Atlantic article by Professor Laurence H. Tribe and Judge J. Michael Luttig which concludes that Donald Trump is barred from being president under Section 3 of the 14th Amendment. That conclusion seems intuitive from the language of Section 3, and the authorities these eminent authors recite back that up.

It is a tantalizing prospect. Section 3 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. But Congress may by a vote of two-thirds of each House, remove such disability.

Trump took an oath when he became president in 2017; it seems clear to a lot of us that he engaged in insurrection in trying to subvert the orderly and lawful process of installing his successor and trying to stay in office.

The problem, which the article doesn’t address, is how to make it happen.The section is “self-executing,” meaning it requires no action by Congress to enforce it: it may, but it doesn’t have to, and the section is still enforceable. That doesn’t mean it’s a deux ex machina that descends from heaven and swats Trump away. Somebody still has to deliver the swat.

Consider these possible scenarios:

1. Donald Trump reads the article, raises the white flag of surrender, and drops out of the race. Unlikely.

2. The Congress passes a bill, which President Biden signs, an action taken under Section 5 of the 14th Amendment, barring Donald Trump from the office of president. Unlikely, maybe more unlikely than #1.

3. Individual secretaries of state around the country take it upon themselves, under the color of Section 3, to refuse to put Trump on the ballot. In many states, this would be an act of ritual suicide.

4. State legislatures direct the secretaries of state to keep Trump off the ballot. See #3.

5. Litigation is commenced, suing the various secretaries of state, to keep Trump off the ballot, or conversely, to put Trump on the ballot if a secretary of state has refused to put him on.

Considering #5, how does a lawyer prove in a court, where a record has to be made, that Trump is guilty of insurrection or giving aid and comfort to the country’s enemies? Recall that neither Jack Smith nor Fani Willis has alleged insurrection in either of their lengthy indictments, and they’ve had a long time and invested a lot of resources into investigating the matter.

You can’t make a record out of the newspaper or the internet.

Practically speaking, I can’t see how private plaintiffs, political parties, or others associations could possibly put together a record and meet even a civil burden of proof of insurrection. Especially not in the time remaining to do it.

True, you wouldn’t have to prove it everywhere, but anywhere would be really difficult, and you’d almost certainly have to mount an action in every state, or every one where you wanted to keep him off the ballot, anyway.

I would, perhaps obviously, like to see it happen, but I think it’s doubtful.

Update 8/19: Word comes (I don’t know if it is true or not) that Governor Gavin Newsom will ask the California Legislature to nix the inclusion of Donald Trump on the ballot in 2024 because of the 14th Amendment. California is reliably blue. If this happens (not just proposed) in Arizona, Georgia, Wisconsin, and Pennsylvania, get back to me.

Obviously, an action like this would be challenged. If the California Legislature didn’t make an adequate record of proof of insurrection, it might well be challenged successfully.

Update to the Update: It doesn’t seem that the Newsom story is real.