The state of exception to which Donald Trump has brought his country, with his four indictments for a total of 91 charges, is such that even the legal debates serve as headlines in the newspapers. The discussion, more intense every day, is this time about whether the fourteenth amendment to the Constitution hides the answer for those who consider that the involvement of the former president in the attack on the Capitol on January 6, 2021 – calling a rally and haranguing the mass to march on Congress and prevent the peaceful transfer of power to Joe Biden – should be enough to prevent him from running in next year’s elections, in which he is the favorite of the Republicans.
The fundamental text does not prohibit someone investigated for a federal crime from being president; nor aspire to it. Not even if he ends up in jail. But the aforementioned amendment does provide a reservation in its third section, known as the “disqualification clause,” which reads: “No person may be (…) president (…) if, having previously taken an oath of support for the Constitution of the United States, has participated in an insurrection or rebellion against the same, or given aid or comfort to its enemies.” The text also says that Congress can lift that veto if it meets a two-thirds majority.
Approved in 1868, the most far-reaching effects of the Fourteenth Amendment were to grant citizenship to every person “born or naturalized in the United States,” including those who had been enslaved, and to guarantee the equality of all citizens before the law. The third section was designed to prevent the recurrence of the Confederation rebels, defeated in the Civil War (1861-1865). In the years after peace, known as the Reconstruction era, it was applied in a handful of cases, and then, for more than a century, it was forgotten.
When Trump’s accusations began to occur in April, the experts consulted by this newspaper cited this alternative as a distant option, almost impossible to apply. Everything seems to have changed with the fourth accusation, for the role of the former president and 18 of his allies in “organized crime” to pressure Georgia election officials and alter the result of the 2020 elections.
But, above all, after the dissemination prior to its publication of a 126-page scientific article for the legal review of the University of Pennsylvania. Entitled The Extension and Strength of the Third Section, it is signed by William Baude and Michael Stokes Paulsen, two renowned conservative academics, who argue that the disqualification clause is far from being a nineteenth-century anachronism and that there is no doubt that Trump’s actions , especially the harangue to the mob and the pressure on his vice president Mike Pence to interrupt the transfer of power, fit his description.
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A large group of jurists and columnists from the main media have since agreed with them. “The former president’s efforts to overturn the 2020 presidential election and the subsequent attack on the Capitol place him squarely within the scope of the disqualification clause and therefore disqualify him from serving as president,” they wrote in The magazine Atlantic Laurence Tribe and Michael Luttig.
This week, a Washington organization called Citizens for Responsibility and Ethics (CREW), with extensive experience in courting Trump, decided to go a step further in demanding the validity of the section. third by filing a lawsuit in Colorado to ask the Secretary of State not to include Trump’s name on the ballots. “There is overwhelming evidence that the clause can be activated in this case,” CREW vice president Donald Sherman, one of the lawyers signing the lawsuit, explained in a telephone conversation on Friday. “The concept is simple to understand, although the litigation is not going to be. We hope that the judge agrees with us and we hope to convince the appeal authorities, including the Supreme Court.” That won’t be easy either: the high court has a conservative supermajority of six justices, three of whom were appointed by Trump.
The plaintiffs hope that the matter is resolved before the primaries, so that voters “are not misled and vote for an ineligible person,” according to Sherman. When asked why they have filed it in the rather Democratic state of Colorado, the lawyer attributed it to the fact that they had “a group of brave complainants, four Republicans and two independents, among them, Norma Anderson, who was the leader of the conservative majority in the state Senate.” He also recalled that it is not necessary for Trump to be found guilty in the four trials that he has open to activate the nuclear button of the fourteenth.
Cuoy Griffin, leader of Cowboys for Trump, in an image from 2021. Morgan Lee (AP)
In New Hampshire, the scene of the earliest primaries, New Mexico, Ohio, Florida and Wisconsin, similar disqualification processes have recently been opened. CREW has at least the precedent of having managed to apply last year the clause to prevent a guy named Cuoy Griffin, founder of the group Cowboys for Trump, from holding public office in New Mexico. “The court understood that, since (Griffin) recruited people for the assault on the Capitol, he could not show up, even if he did not commit any violent act, nor did he enter the building,” Sherman clarified, adding proudly that “it was “the first time since Reconstruction that the third section was carried forward in court.”
Beyond the lawyer’s faith in his crusade, it is inevitable to think, knowing the American judicial system, that perhaps he has embarked on one of those useless efforts that lead to melancholy. The former president is applying in his four pending cases (in addition to Georgia, he has to answer in New York for the alleged payment of black money to the porn actress Stormy Daniels to buy her silence; in Miami, for the secret papers that The same delay strategy that could muddy the demands of Colorado or New Hampshire was carried out from the White House and in Washington, also on January 6.
And then there are those who believe that the judicial theory that has been gaining strength among anti-Trump Democrats and Republicans is simply a mistake. The most furious attacker is George Washington University professor and Fox News contributor Jonathan Turley, who considers it “the most dangerous theory in recent decades” and an “urban legend” on par with the “desire of some to keep alive.” to Elvis.” “It’s a story,” Turley considers, “that good liberals will read to their children at night so they can sleep peacefully knowing that Trump won’t be able to run again. You better not look under the bed. As scary as he may seem to some, Trump can take office if he is elected…even if he is convicted. In fact, he can serve as president even in the unlikely scenario that he ends up in jail.”
Others, like Russell Riley, co-director of the Miller Center for Oral History of Presidents at the University of Virginia in Charlottesville, fall somewhere in the middle. Riley explained in an email last Friday that he believes “there are compelling reasons for (Section Three) to apply, especially given the sentences handed down to participants on January 6, including the Proud Boys (whose ringleader , Enrique Tarrio was sentenced this week to 22 years in prison, the highest sentence so far). But he is still “undecided” about whether to do so. “Mainly, because many Republicans seem completely convinced that resorting to the 14th Amendment would amount to an illegitimate use of the Constitution as a weapon to disable an opponent. If some states decided not to include Trump on the ballot, his supporters would surely use that same trick to undermine the options of Democratic candidates. This is a recipe for escalating political tension that, in the long term, would end up damaging our democracy. Therefore, it may be that the smartest option is not to activate that mechanism.”
That scenario would leave the way open for Trump to return to the White House, which, given what has been seen, could also pose a threat to American democracy. However, Riley prefers to trust the voters’ understanding rather than disqualify the candidate. “It is the healthiest option, but perhaps also the riskiest.”
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