Is Donald Trump ineligible to run as president?

There is a compelling argument that Section 3 of the Fourteenth Amendment makes Donald Trump ineligible to run for president. A lawsuit was filed last week in Colorado to keep Trump off the ballot there and similar cases are likely to be filed throughout the country. It is urgent that this be resolved before the primary elections begin.

Section 3 of the Fourteenth Amendment prohibits a person who took an oath of office from ever again holding public office if they "shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof." Congress by a two-thirds vote can remove this disability.

The provision was adopted to keep those who had participated on the rebel side of the Civil War from holding federal office. A number of individuals were initially disqualified from serving in Congress, but Congress then granted amnesty to former Confederates in 1872 limiting its application.

An impressive array of conservative and liberal scholars now have studied the history of this provision and concluded that it disqualifies Trump from being president. Two conservative law professors, both self-professed originalists - William Baude of the University of Chicago Law School and Michael Stokes Paulsen of St. Thomas Law School - in an article to be published in the University of Pennsylvania Law Review, argue that Trump is not eligible to again hold federal office. Their conclusion - and these are prominent conservative professors - is that "the case is not even close." Liberal Harvard law professor Laurence Tribe and conservative retired federal court of appeals judge Michael Luttig came to the same conclusion in an article in the Atlantic.

The indictments against Trump in both federal court in Washington, D.C. and in state court in Georgia leave little doubt that Trump attempted to overturn the results of the 2020 presidential election. Whatever the outcome of the criminal trials, whenever they occur, there is no question that Trump was doing everything he possibly could to stay in power. And Trump certainly encouraged and did nothing to stop the storming of the Capitol on Jan. 6.

It does not matter whether Trump is convicted. Nothing in the constitutional provision suggests that its application requires a criminal conviction or proof beyond a reasonable doubt. In fact, after the Civil War, individuals were excluded from serving in Congress based on their support for the Confederacy even though there had not been a criminal conviction. Baude and Paulsen concluded, "Section Three requires no prior criminal-law conviction, for treason or any other defined crime, as a prerequisite for its disqualification to apply."

Section 3 does not specify who makes the determination of whether a person engaged in insurrection or rebellion and is thereby disqualified from holding federal office. It does not require that Congress decide this, even though Congress can remove the disability. In all likelihood, the issue will arise in lawsuits against state election officials to keep Trump off the ballot, as with the suit filed in Colorado. Also, there might be some state election officials who determine that Trump is ineligible to be on the ballot, which inevitably will lead to lawsuits by his supporters.

A year ago, a state court removed Cuoy Griffin from his position as a New Mexico County Commissioner, because of his participation in the Jan. 6 events. Similar litigation is sure to ensue over Trump's eligibility.

It is disquieting to think of courts keeping someone with substantial public support from running for president, let alone a former President of the United States. That seems profoundly anti-democratic. Shouldn't the people -- or at least the Electoral College -- get to decide who will be president?

But this fails to recognize that the Constitution is inherently anti-democratic, including in determining the qualifications for federal office. The Constitution also imposes other restrictions on who may be president, such as requiring that the person be 35 years old and a "natural born citizen." Those who drafted and ratified the Fourteenth Amendment made a conscious choice to limit democracy in the future by saying that those who engaged in insurrection or rebellion could never again hold government office. Like all constitutional provisions, Section 3 must be enforced.

It, of course, would be unprecedented for this clause to be used to keep Donald Trump from running for president. But it also is unprecedented for a president to attempt to subvert the results of an election to stay in power and to foment the storming of the Capitol. Certainly, if Trump is convicted in federal or state court of the crimes with which he has been charged, he should be deemed ineligible to run for president. But even if not convicted, there is a compelling case that the Constitution bars him ever holding government office again.

What seems most crucial is that this be resolved quickly and decisively. Initially the litigation will be in individual states - in state or federal court. But this is a question of United States constitutional law and ultimately the Supreme Court will need to decide. Ideally, this will happen before the primary season begins in early 2024. Otherwise, the Court faces potentially disqualifying someone who has secured, or is likely to secure, the Republican nomination. Disqualifying Trump at that point will cause chaos.

Even worse would be if the issue of Trump's eligibility is not resolved until after the November 2024 election. A nightmare scenario would be for Trump to have won sufficient electoral votes to be president, but the Supreme Court then has to hear a case about whether Section 3 of the Fourteenth Amendment makes him ineligible to serve.

All of which makes it important that the issue be litigated quickly and makes its way to the Supreme Court on an expedited basis. The stakes will be enormous, but for the Court it will be a question of interpreting a constitutional provision and deciding: did Donald Trump engage in insurrection or rebellion? If so, and the answer to that seems clear, then the Constitution makes him ineligible to hold federal office. Period.