I’m going to start this column by offering you a rather unconventional reading recommendation. If you have some free time and are interested in delving into 126 pages of detailed legal argument and historical analysis, I highly suggest reading a law review article titled “The Sweep and Force of Section Three.” Don’t let the lackluster title fool you, as it presents a thought-provoking argument: that Donald Trump is constitutionally disqualified from serving as president.
Authored by two esteemed conservative law professors, William Baude and Michael Stokes Paulsen, the article delves into the text, history, and tradition of Section 3 of the 14th Amendment. This amendment, passed after the Civil War, prohibits former public officials from holding office again if they were involved in insurrection or rebellion, or provided aid and comfort to those who did. Baude and Paulsen make a compelling case that Trump’s actions and involvement in the events of January 6, 2021, render him ineligible for the presidency. Unless a two-thirds congressional amnesty vote takes place, they argue that Trump’s ineligibility is as absolute as if he were underage or not a natural-born citizen.
It’s truly captivating to see how Baude and Paulsen build their argument with meticulous research on every page. However, while their substantive argument is undeniably powerful, the timing poses a significant challenge. By the time any legal challenge to Trump’s eligibility reaches the Supreme Court, voters may have already started casting their votes in the Republican primaries. This late stage makes it unlikely for the Supreme Court to strike Trump from the ballot or allow state officials to do so. The court is generally reluctant to alter election procedures so close to an election, and removing a candidate after they may have secured a primary victory would be an even more complex matter.
While I firmly believe that the court should intervene, even if it’s late in the game, we must remember that this situation arises due to the comprehensive failure of congressional Republicans. Let me be clear: there was no way for the Democratic Party alone to remove Trump from American politics. It required the cooperation of Republicans, who, unfortunately, have neglected their constitutional duties, often out of sheer cowardice. They have evaded responsibility by passing it on to other branches of government or simply cowering in fear of the repercussions.
Looking back, the Republican inaction following the events of January 6 is truly puzzling. Rather than holding Trump accountable through a conviction in the Senate after his second impeachment, Republicans chose to transfer their responsibilities to the legal system. As Mitch McConnell expressed when he acquitted Trump, “We have a criminal justice system in this country.” However, even a successful prosecution and felony conviction in multiple venues would not disqualify Trump from assuming the presidency. Thanks to the cowardice of the GOP, our nation is now facing the eerie possibility of a president taking the oath of office while simultaneously facing one or more substantial prison sentences.
Republicans have also shifted the burden to American voters, suggesting that any concerns regarding Trump’s fitness for office should be resolved through the ballot box. While this recommendation may sound appealing, allowing politics to solve the problem of Donald Trump, it neglects the important role of checks and balances in the Constitution. The founders of our nation and the authors of the 14th Amendment understood the need to occasionally restrain popular will, which is why they implemented various safeguards to protect American democracy from runaway majorities. If voting alone was sufficient to safeguard the nation from insurrectionist leaders, Section 3 would not have been necessary.
Why are Republicans in Congress opting to defer to voters and the legal system? The answer lies in their fear. Firstly, there is the simple fear of political consequences and the risk of losing a House or Senate seat. In today’s polarized, gerrymandered America, many Republican politicians only face political risks from the right, which happens to be overwhelmingly populated by Trumpists.
But there is another fear at play – the fear that holding Trump accountable will further exacerbate political divisions, giving rise to a never-ending cycle of prosecutions and disqualifications. While this fear may seem dubious, given that conservative pundit Ben Shapiro raised it while previously advocating for racketeering charges against Barack Obama, it nevertheless holds a certain degree of credibility. Michael McConnell, a conservative professor whom I greatly respect and who is no fan of Trump, expressed concerns about the Section 3 approach to disqualifying Trump. He worried that this theory could empower partisans to seek disqualification every time a politician supports or praises the objectives of a political riot. In other words, bad actors could exploit this theory for their own nefarious purposes.
Essentially, the fear is that holding Trump accountable might invite revenge and further abuse of our nation. I agree with Professor McConnell’s warnings, as we have already witnessed Trump and his allies openly discussing their plans for retribution. However, based on past behavior, it’s clear that Trump and his allies will continue to harm our nation whether or not we hold him accountable. The abuse is an inherent part of Trump’s movement. The only variable that can potentially put an end to this abuse is accountability, which relies on the courage and determination of key American leaders. Without accountability, every triumph will eventually turn to defeat, undoing all the progress achieved.
One fundamental reality of human existence is that virtue often finds itself with limited options when faced with vice. Evil individuals can attach catastrophic risks to almost any course of action, no matter how admirable. However, history teaches us valuable lessons that we can learn from. George Washington and Abraham Lincoln, two of the greatest presidents in American history, both confronted insurrectionary movements, and their examples should guide us today. When Washington faced the Whiskey Rebellion in 1794, he didn’t appease the rebels; instead, he employed overwhelming force to quell the uprising and eliminate the threat.
In 1861, Lincoln disregarded advice to abandon Fort Sumter in South Carolina in order to avoid direct conflict with the Confederate Army. Instead, he ordered the Navy to resupply the fort. The Confederates attacked, resulting in the deadliest war in American history. However, at no point was Lincoln willing to let rebels hold the United States hostage.
For those who believe that comparing Trump’s actions to the Whiskey Rebellion or the Civil War is an exaggeration, it’s essential to consider the consequences if Trump’s plan had succeeded. I have previously described January 6 as “America’s near-death day” for good reason. If Mike Pence had declared Trump the winner or if the certification of the election had been delayed, we can only imagine the chaos that would have ensued. We would have faced the possibility of two presidents assuming power simultaneously, with the Supreme Court, federal law enforcement, or even the Army tasked with deciding the legitimate leader of our nation.
Thankfully, the American legal system has proven effective in reining in the MAGA movement. Numerous January 6 rioters are facing criminal charges, and corrupt lawyers associated with the movement will have their day in court. Trump is also indicted in multiple jurisdictions. However, all the progress made can be reversed, and every victory can turn into defeat if a disqualified president regains power through the fear of his adversaries.
The stories of Washington and Lincoln don’t end with their decisive victories. Only two out of the ten individuals tried for treason during the Whiskey Rebellion were convicted, and Washington eventually pardoned them.
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