A bipartisan consensus is emerging that former President Donald Trump’s actions have already disqualified him from office and shows a way to keep him off the ballot in 2024.
Our reading of the Georgia indictment, as longtime lawyers ourselves, shows why and how that disqualification can be put into effect.
The key to all of this is the 14th Amendment to the Constitution, which 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, or given aid or comfort to the enemies thereof.” Trump took that oath at his inauguration on Jan. 20, 2017.
Both Trump’s Georgia indictment, and his federal indictment in Washington, D.C., spell out exactly how he engaged in efforts to rebel against the Constitution, and sought and gave aid and comfort to others who also did so.
Legal scholars William Baude and Michael Stokes Paulsen, conservatives themselves and members of the conservative Federalist Society, have recently published a paper declaring that under the 14th Amendment, Trump’s actions render him ineligible to hold office.
Baude and Paulsen, using originalist interpretation — the interpretive theory of choice of Trump’s conservative court appointees, which gives full meaning to the actual, original text of the Constitution — demonstrate that no legal proceeding is required. They say disqualification is automatic, or what’s known in the legal world as “self-executing.”
Recent public comments from liberal constitutional scholar Laurence Tribe and conservative jurist and former federal judge Michael Luttig come to the same conclusion.
This is not a theoretical bit of technical law. This provision of the 14th Amendment was, in fact, extensively used after the Civil War to keep former Confederate leaders from serving in the federal government, without being tried or convicted of any crime.
Georgia has a case to kick Trump off the ballot
There is no requirement in the Constitution the disqualification be imposed by any specific process — only that it applies to people who take certain actions against the Constitution.
For the U.S. in 2023, we believe the most realistic avenue to enforce the 14th Amendment’s ban on a second Trump presidency is through state election authorities. That’s where the Georgia indictment comes in.
It exhaustively details extensive acts of lying, manipulation and threats against Georgia officials, as well as a fraudulent fake elector scheme to illegally subvert the legitimate 2020 Georgia presidential vote tally and resulting elector certification.
Trump’s failure to accomplish what is tantamount to a coup in Georgia and other swing states set the stage for the violent insurrection of Jan. 6, 2021, as part of a broader set of actions by Trump and his allies to subvert the Constitution.
There are six aspects revealed in the latest indictment we believe justify Georgia – under Section 3 of the post-Civil War Fourteenth Amendment — keeping Trump off the ballot:
- The racketeering scheme was a multifaceted attempt to subvert Georgia’s own part of the 2020 electoral process;
- The officials on the receiving end of the unsuccessful racketeering scheme were elected and appointed Georgia officials.
- Those officials’ actions to reject election subversion vindicated their own oaths to uphold the Constitution and laws of the United States as well as Georgia’s.
- Most of these officials were and are Republicans, including Secretary of State Brad Raffensberger, Gov. Brian Kemp and former Lt. Gov. Geoff Duncan;
- These officials will, in 2024 as in 2020, collectively determine who is qualified to be on Georgia’s presidential ballot; and
- These officials’ testimony, and related evidence, is at the heart of the proof of the Georgia racketeering case against Trump.
In other words, the evidence to convict Trump in the Georgia racketeering case is the same evidence, coming from the same Georgia officials, who will be involved in determining whether, under the 14th Amendment, Trump is qualified to be on the 2024 presidential ballot — or not.
The Georgia officials don’t need a trial to establish what they already know.
Once Georgia bars him, other states may follow. That would leave Trump with no chance to win the electoral votes required to legitimately claim the White House. This outcome is not about politics — it’s about protecting democracy and the rule of law.
A version of this article appeared previously on theconversation.com
Joseph Ferguson is co-director, National Security and Civil Rights Program, and Thomas A. Durkin is Distinguished Practitioner in Residence, Loyola University Chicago School of Law.
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