The mug shot is an ominous warning of what’s to come should Trump win the election

A forthcoming major law review article (The Sweep and Force of Section Three) by William Baude & Michael Stokes Paulsen to appear in 172 U. Pa. L. Rev. in 2024, argues that Section Three of the 14th Amendment “forbids holding office by former office holders who then participate in insurrection or rebellion.”

Notwithstanding a “range of misperceptions and mistaken assumptions” the section’s full legal effect has not been appreciated or enforced. Their article seeks to correct those “defects by setting forth the full sweep and force of Section Three.”

The arguments in support of the Baude and Paulsen assertions are: (1) The section remains enforceable even today, (2) the section is “self-executing, operating as an immediate disqualification from office, without the need for additional action by Congress, to be enforced by every official, state or federal, who judges qualifications”; (3) to the extent of any conflict with prior constitutional rules (it) repeals, supersedes, or simply satisfies them …; (4) the section “covers a broad range of conduct against the authority of the constitutional order, including many instances of indirect participation or support as ‘aid or comfort. It covers a broad range of former offices, including the Presidency. [And] in particular, it disqualifies former President Donald Trump, and potentially many others, because of their participation in the attempted overthrow of the 2020 presidential election.” (Emphasis added)

The authors of the law review article conclude affirmatively that those who engaged in conduct directed at overthrowing the result of a lawful presidential election or who supported an attack on Congress and the Capital “should face serious inquiry under Section Three and be prohibited from holding future office.”

In this timeframe, there is a possible scenario that if Trump is convicted of multiple charges having already won the 2024 election, charges that can carry a significant prison term and fines in Georgia, considering the limited pardon powers in that state, Trump and the other defendants nevertheless will have to serve the sentences imposed and are in legal jeopardy in connection with this case.

Under Georgia state law (not preempted by federal law), if a person is convicted and handed a custodial sentence under RICO charges there, they must serve a minimum of five and a maximum of 20 years behind bars.

It is believed that the prosecutors will be seeking to convict Trump and his allies using Georgia’s Racketeer Influenced and Corrupt Organizations (RICO) Act commonly used in organized crime cases. These would allow prosecutors to charge multiple people with separate offenses while working towards a common goal and bringing these cases to trial in that state.

Should a jury find Trump guilty in Georgia after winning the election, but prior to entering office in January 2025, there is a good chance Trump will attempt to use the courts and legal arguments to try to delay his sentencing until he again becomes president, under the assumption that he will then no longer have to serve time. So far, notwithstanding Trump’s numerous attempts to evade his fate, the judges have not been sympathetic.

If Trump is found guilty after having already entered the White House, a whole new range of non-hypothetical questions and arguments would be raised about whether a sitting president can be convicted and sentenced for state crimes – a prospect that has never been seen in U.S. history. The new charges against Trump, and especially followed by a conviction, would bolster the case that Trump should be disqualified under the 14th Amendment.

But much is uncertain here, and I expect attempts to disqualify Trump to increase and go forward regardless of what the outcome (short of action by SCOTUS unfavorable to him in its entirety). Because of the two different jurisdictions (state and federal) conviction and sentence under Georgia law would not be affected by his assumption of office under the election laws.

Last year, a judge in New Mexico used the 14th Amendment to remove a county commissioner from his post after the individual was found guilty on federal charges related to January 6. Seemingly, it was the first time since the civil war that an official had been removed from office for engaging in an insurrection.

If Trump takes office while the charges are still pending against him, he’s likely to move to quickly get rid of them. He would almost certainly appoint an attorney general who would fire Smith. If he has already been convicted, Trump could theoretically attempt to pardon himself, an untested legal idea.

A Trump win would also throw the justice department into uncharted legal territory. While the department has long held that a sitting president can’t be prosecuted, it’s unclear how that would affect a prosecution of a former president that began when he was out of office.

“It would be very chaotic. It would put a lot of stress on our democratic system,” experts have said. “You certainly don’t want a situation where Donald Trump would try to use the presidency to get himself out of criminal liability.”

The “Trump saga” continues. U.S. District Judge Robin Rosenberg, who was appointed by Barack Obama in 2014, just dismissed a case challenging Trump’s candidacy only a week after the lawsuit was filed, telling the plaintiffs that their case lacked standing to bring a challenge under the Constitution’s 14th Amendment.

Former U.S. 4th Circuit Court of Appeals Judge J. Michael Luttig, a conservative, and legal scholar Laurence Tribe, a liberal, recently joined together to write an August article for The Atlantic, arguing that Trump’s actions following his 2020 electoral loss “place him squarely within the ambit of the disqualification clause.”

Given the “wild card” that SCOTUS has become, it is anyone’s guess as to the outcome from that bench should it weigh in on resolution of the issue once they get their hands on the problem. As a footnote, legal experts have predicted that SCOTUS won’t spare TRUMP from trial and conviction. We will see how that works out.

But now it seems that, for the time being, Trump’s luck unbelievably continues to hold. Suddenly, against all odds, SCOTUS has indicated that it will consider the case. Speaking of a “cat with nine lives!”

According to the careful consideration of Tribe, a renowned Harvard law professor (Democrat) and Lettig, a distinguished retired conservative federal judge (Republican), regardless of how Donald Trump’s Washington D.C. trial plays out over an alleged plot to overturn the voters’ will in the 2020 presidential election, he is already ineligible to hold office ever again.

Based upon their research of the 14th Amendment ratified in 1868, Trump’s Jan. 6 complicity and election interference plots should bar him from office…but Congress and the country need the will to enforce it.

The disqualification clause operates independently of any such criminal and impeachment proceedings or congressional legislation.

The fact that the authors of the Univ. Pa. law review article are Republicans who are members of the conservative Federalist Society, and the mixed-party affiliations of Lettig and Tribe make it more difficult for them to be dismissed as “political partisans.”

“The process that will play out over the coming year could give rise to momentary social unrest and even violence. But so could the failure to engage in this constitutionally mandated process. For our part, we would pray for neither unrest nor violence from the American people during a process of faithful application and enforcement of their Constitution,” they wrote before concluding,

As a generation, it has fallen to us to defend and protect our hallowed Constitution that has existed until now. The endurance of our Union endures only so long as we are strong and determined enough to strenuously’ defend it.

Notwithstanding those who may insist on propelling Trump back into the White House, the consensus appears to support the provisions of our Constitution which clearly prohibit that situation.”

The uncertainty in the mix here is the current propensity of the SCOTUS majority to assert its omnipotent jurisdiction across the board as and when it sees fit. Hopefully, the court will act responsibly and promptly cut off the demagogic ruminating such as that expressed by Rep. Matt Gaetz, R-Fla, to the effect that MAGA will turn to “bloodshed” if Trump’s crimes exclude him from the presidential ballot.

The answer may be buried in the outcome of the Colorado Secretary of State Jena Griswold’s response after Trump described that state’s efforts to kick him off 2024 Republican primary ballots as “election interference.” She said, “Trump is a liar with no respect for the Constitution.”

A dam may be breaking now that top elections officials in an additional six states (Alaska, Maryland, Michigan, New Hampshire, New Mexico and Rhode Island) are carefully considering legal arguments that Trump is ineligible to hold office under Article III of the Constitution’s 14th Amendment. This is because of his alleged involvement in a criminal conspiracy to steal the 2020 election and remain in power. They are aware of the ongoing legal discussion about the 14th Amendment, and are considering it carefully.

As an affirmative footnote, Prof. Tribe has noted, “if Trump doesn’t qualify for the insurrection clause, nobody would.”

Unfortunately, as unbelievable as it may seem, keep posted for the next episode(s) in the continuing saga of the “Trump Years” - past, present, and (perhaps) future.