Can or Will Trump Be Disqualified from Holding Office By the 14th Amendment?

By Rich Van Winkle

“[No person shall] “hold any [state or federal] office” if they’ve previously taken an oath
of office and then “engaged in insurrection or rebellion against the [U.S.] or given aid or
comfort to the enemies thereof.” The 14th Amendment, Section Three

The issue here is not “constitutional” as its language is very clear. The issue is not the intent of the Clause
as that is also impossible to misread. The questions surround application and applicability since those
details are not in the “Disqualification Clause” and there is no case law regarding the Clause. Thus, it will
undoubtedly come to the courts to decide and rule about when the Clause is applicable (Does it require
a criminal conviction?) and how the Clause is invoked (Who has standing to assert its disqualification?)
Legal scholars may offer their opinions regarding these matters but without some judicial decision to
work from, all they can offer is an opinion (as has been done in the attachments).

Many others have weighed in on these unsettled questions, so I will also…

1. While it would seem clear that the authors of the Clause did not intend that a criminal
conviction must occur before the Clause could be invoked or tried, that has not been determined
by any court. Thus, should anyone attempt to invoke the disqualification specified by the Clause,
the matters of who can invoke the Clause and whether a criminal conviction (all the way through
appeal) is required to enforce the disqualification have not been answered in law.
2. Along those lines is a related question: can someone be disqualified even before they are a
“candidate” for office? At least in Trump’s case that will not be an issue.
3. The question of who has “standing” to bring the disqualification before a federal court is quite
unsettled. On one extreme it might be any citizen> any citizen with the right to vote> any
candidate for the same office> any election official from any state> any state Secretary of State
(or official with those same duties)> any federal judge… The other “extreme” could be only a
sitting US Supreme Court Justice. Again, we have no case law to work from.
4. We don’t have an established procedure for bringing the matter before a court, nor is there any
suggested about which courts would have jurisdiction. It seems clear that US District Courts
should have jurisdiction, but lacking case law, that could be appealed.
5. In sum, what this means is that the Disqualification Clause may never be invoked. Even if
someone got the matter into a court, each appealable element could or would take months or
years to work its way to the Supreme Court (which would have to decide the matter because of
the lack of existing case law). Given the slow speed and procedural morass of the courts, getting
answers to our basic questions would take longer than any election cycle. Thus, the matter
becomes moot, and a ruling is never issued. In legal terms, the invoking of the Clause is possibly
not justiciable as a practical matter.
6. However, there are side-steps, loopholes, and end-runs that might work. On constitutional
questions of substantial public interest where the law has not evolved, SCOTUS can short-cut the
normal process. Would it? Who knows. The matter might be brought in numerous states (in
several U.S. Circuits) where expedited proceedings could create some case law in a couple of
months. If several Circuit Courts agreed on the answers to the issues, that might be enough to
 give SCOTUS a way to avoid having to rule. But, you get the point… there are far too many
unknowns for anyone to offer a useful opinion about where this might go.
7. In general SCOTUS has tried to make each and every provision of the Constitution useful. If it
wanted to, it could probably do so here – especially with this group of “renegade” Justices.
Would it want to?
8. If SCOTUS was to rule that the Disqualification Clause required a completed criminal conviction,
they would be making it useless. Perhaps they would want that.
9. My opinion, then, is that disqualifying Trump under the 14 th Amendment is highly unlikely – from
a legal perspective. (And if Trump can’t be disqualified, then no candidate ever will be).
10. Of course, I have opined that Trump will flee the country before being convicted. As he slowly
accepts the increasing probability of conviction and being jailed/imprisoned, he will (as he
hinted a few days ago) hear the Beatles and go “back to the USSR”.

Perhaps some judge will see this and treat Trump like any other similar defendant and hold him in
confinement through trial and on appeal.