All the current talk of Donald Trump running again in 2024 assumes that he’s eligible to serve as president if reelected. He’s not, or at least there’s a strong argument that he isn’t.
In fairness to America’s voters, this argument ought to be resolved conclusively in court long before voters cast their ballots in 2024—and not on January 6, 2025, when Congress next meets to count electoral votes.
Section 3 of the Fourteenth Amendment explicitly bars from the presidency, as well as any other “office, civil or military, under the United States” anyone who “having previously taken an oath … as an officer of the United States … to support the Constitution of the United States, shall have engaged in insurrection … against the same.” Given all that we now know about Trump’s role in fomenting the insurrection at the Capitol this past January 6, including the extent to which he was pushing Vice President Pence to act upon the Eastman memo—and urging the crowd on January 6 to pressure Pence to repudiate the constitutionally proper electoral votes cast for Joe Biden—there’s already a powerful case to be made that Trump “engaged in insurrection” within the meaning of this constitutional clause, thereby making Trump ineligible to be inaugurated again as president on January 20, 2025. This ineligibility argument may grow even stronger after the House select committee completes its ongoing investigation.
Assuming that section 3 of the Fourteenth Amendment does bar Trump from being president again, Trump would be in the same category as former president Obama. Both Obama and Trump would be constitutionally ineligible for the new presidential term beginning on January 20, 2025—Obama for one constitutional reason, having already served two terms, and Trump for another, having “engaged in insurrection” while sworn to uphold the Constitution.
Suppose, for argument’s sake, that Obama runs in 2024 despite his constitutional ineligibility to serve again as president—and suppose that Obama wins a majority of electoral votes. Congress nonetheless would be duty-bound to disqualify those electoral votes when it meets in joint session on January 6, 2025 to count the electoral votes. Members of Congress take an oath to uphold the Constitution; Obama being ineligible to serve as president, members of Congress would be obligated to disqualify the constitutionally invalid electoral votes cast for him.
The same point applies to electoral votes cast for Trump, on the assumption that he too is constitutionally ineligible to serve again as president, but with the reason for his ineligibility being different from Obama’s.
It’s easy to imagine Democrats in Congress on January 6, 2025 objecting to electoral votes cast for Trump on this basis. What about those Republicans, like Mitt Romney and Lisa Murkowski, who already voted to convict Trump in his second impeachment trial because of his role in inciting the insurrection this past January 6? One might think that these GOP Senators would feel the tug of constitutional duty to disqualify electoral votes cast for Trump in 2024 on grounds of his ineligibility to serve again as president having “engaged in insurrection” within the meaning of the Fourteenth Amendment.
It might seem inconsistent, or at least ironic, for Congress to disqualify Trump on January 6, 2025 because Trump participated in an effort to negate congressional confirmation of Biden’s electoral victory on January 6, 2021. But the improper grounds for objecting to Biden’s electoral votes, raised by Senator Josh Hawley among others, are very different from the appropriate grounds for objecting to electoral votes cast for a candidate ineligible to serve. The objection that Hawley made was not that Biden was ineligible to be president, but instead that the electors who cast their votes for Biden had not been validly appointed. That kind of objection to an elector’s appointment, when the state itself has not challenged the elector’s appointment (by sending to Congress some statement that the appointment was invalid under state law), is not constitutionally cognizable in Congress, for reasons cogently stated by Rep. Liz Cheney in her memo to colleagues in advance of the January 6, 2021 joint session. An objection that accepts the validity of an elector’s appointment, but claims that the elector cast an electoral vote for a constitutionally ineligible candidate, is an altogether different matter in the context of the Twelfth Amendment’s joint session of Congress for the receiving and counting of electoral votes sent by the states.
But procedurally Congress need not, and should not, wait until January 6, 2025 for a definite pronouncement on whether section 3 of the Fourteenth Amendment renders Trump ineligible to serve again as president. Instead, Congress should enact a law now authorizing the Justice Department to file a civil suit in federal court to adjudicate Trump’s ineligibility. That way, if Trump is judicially ruled ineligible—becoming constitutionally equivalent to Obama—his name can be kept off the ballots in 2024, and no voter will waste a vote by casting a ballot for a constitutionally ineligible candidate.
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