Whether or not Section 3 bars Mr. Trump from further service is precisely the question that, currently, is unresolved in the law. Yes, some members of the Federalist Society claim that Section 3 prohibits Trump from serving again as President, but other members of the Federalist Society disagree. Likewise, some prominent constitutional law experts hold that view (like Lawrence Tribe, retired from Harvard Law), while others oppose it (like Alan Dershowitz, also retired from Harvard Law). While four members of the Colorado Supreme Court have ruled against Trump, three other members of that court consider their colleagues quite mistaken. The Colorado decision will be taken up by the U.S. Supreme Court – for Ohio to remove Trump from the ballot now seems both unnecessary and unwise.
For the matter is complex. The wording of Section 3 is not limited in its application to former Confederates to be sure. But those former Confederates were foremost on their minds. As a result, Congress has done little since the 1800s to define key terms. One related statute that Congress did enact was adopted in 1870 but repealed in 1948. The other existing legislation is quite sparse.
As a result, we have little statutory guidance for how to implement Section 3. The text is explicit in applying to members of the Senate and House, and to electors for President, but the President is not specifically cited. Does the phrase “any office, civil or military, of the United States” include the President? That is far from certain. The text refers to those who “shall have engaged in insurrection or rebellion against the same [United States], or given aid to the enemies thereof.” But was January 6th an insurrection? Hundreds of indictments related to January 6 have been issued, but none of them are for insurrection, which remains a federal crime. Would some of the behavior on January 6 qualify as an insurrection, according to the understanding of the word in the 1860s? Or does that matter, if the modern law of insurrection does not apply?
Can a state court or other state actor deem someone guilty of insurrection who has not been indicted for that crime? Does that person not have the right to due process that is also enshrined in the Fourteenth Amendment (a right that is far clearer in our judicial precedents and our statutes than the issue before us)?
A person in Section 3 is not allowed to hold office. But can that person run for the office, since the disability could be removed by Congress before January 20, 2025? And not incidentally, what does it mean to “engage” in insurrection?
All of these questions, and many more, must be addressed, and by the Supreme Court. And with so little guidance from statutes, Congress or judicial precedents, the constitutional issues appear quite ambiguous to many of us. Ambiguity is a poor basis upon which to remove a leading candidate for President.
I am doubtful that the Constitution necessitates Mr. Trump’s removal from the ballot, and I am quite confident that the republic’s “preservation” does not depend upon it. Mr. LaRose’s best course of action is prudence, and prudence would suggest waiting on the Supreme Court.
Dr. Taylor is a Professor of History at Wittenberg University, where he teaches American constitutional history. His views are his own.
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