By Jack Phillips
An attempt to disqualify former President Donald Trump from appearing on 2024 presidential ballots based on a theory derived from the Constitution’s 14th Amendment was dismissed by a prominent law professor on Tuesday.
A theory that has recently been floated in the media claims that the former president could be blocked from ballots under Section 3 of the 14th Amendment via the Disqualifications Clause, which states that individuals who “have engaged in insurrection or rebellion” cannot hold office. Proponents of the claim say that President Trump engaged in “insurrection” during the Jan. 6, 2021, Capitol breach.
But George Washington University law professor Jonathan Turley stated that the new theory is “not simply dubious but dangerous.”
“The amendment was written to deal with those who engage in an actual rebellion causing hundreds of thousands of deaths,” Mr. Turley told Fox News. “Advocates would extend the reference to ‘insurrection or rebellion’ to include unsupported claims and challenges involving election fraud.”
The professor, who had served as an expert impeachment witness in favor of Republicans defending President Trump, said he didn’t favor the former president’s speech on Jan. 6. However, he said that the Jan. 6 incident was merely “a protest that became a riot” and not an insurrection against the United States.
“According to these advocates, Trump can be barred from the ballot without any charge, let alone a conviction, of insurrection or rebellion,” Mr. Turley said.
Mr. Turley added that he views that some people who proposed the theory also “argue that there is no action needed from Congress” and that “state and federal judges could just bar those who are deemed as supporting rebellion through their election challenges and claims.”
Over the weekend, Sen. Tim Kaine (D-Va.), a former Democratic vice presidential candidate, stated that there was a “powerful argument” for barring President Trump under the 14th Amendment.
“The language (of the amendment) is specific: If you give aid and comfort to those who engage in an insurrection against the Constitution of the United States—it doesn’t say against the United States, it says against the Constitution. In my view, the attack on the Capitol that day was designed for a particular purpose … and that was to disrupt the peaceful transfer of power as is laid out in the Constitution,” he told ABC News.
The former president has long denied Democrat allegations that he initiated a riot or insurrection at the Capitol. He has often pointed to a portion of his speech on Jan. 6 where he called on rally attendees to “peacefully and patriotically” protest.
Also, Rep. Adam Schiff (D-Calif.), who had promoted often false claims that the former president colluded with the Russian government during his administration, also said that the disqualification theory “fits Donald Trump to a T” during a recent MSNBC interview. He also cited the incident at the Capitol on Jan. 6, again claiming it was an insurrection led by President Trump.
Some Democrats, including state officials, have said that the theory likely doesn’t hold water.
Among them, Arizona Secretary of State Adrian Fontes told a podcast several days ago that the Arizona Supreme Court ruled that there is “no statutory process in federal law to enforce Section 3 of the 14th amendment” and that “you can’t just enforce it.”
“That’s what the Arizona Supreme Court said, so that’s the state of the law in Arizona. Now, do I agree with that? No, that’s stupid,” Mr. Fontes said, saying that he disagrees with the ruling but would follow the law in that case.
Other than Mr. Turley’s comment to Fox News, another constitutional scholar and political science professor told ABC News that the 14th Amendment theory faces an uphill battle.
“The challenge here is that the 14th Amendment isn’t necessarily self-executing. In other words, it doesn’t just automatically happen and there is some question about what it means to be engaged in insurrection or rebellion and how that is defined. The challenge for us is that historically, it hasn’t been well-defined,” Kevin Wagner, a professor at Florida Atlantic University, told the outlet.
Mr. Wagner also noted that many “have suggested that this was a protest that may have gotten out of hand” during Jan. 6 and “didn’t rise to a level of a rebellion or an insurrection.” Elaborating, he said that the provision in the 14th Amendment also “really turns on how it is that we assess what happened.”
Previously, a Trump campaign spokesperson called the possible use of the 14th Amendment to disqualify the former president as election interference ahead of the 2024 contest.
“What these undemocratic organizations are doing is blatant election interference and tampering,” Trump campaign spokesman Steven Cheung told the Washington Post last month. “They are not even trying to hide it anymore and it is sad they want to deprive the American people of choosing Donald Trump—the overwhelming front-runner by far—as their President. History will not judge them kindly.”