Sorry, but we’re not getting rid of Donald Trump that easily

Frustration with the political process can lead many otherwise rational people to look for a magic solution to important problems. We saw this earlier this year in the “one weird trick” to raise the debt ceiling — a fanciful proposal in some circles to mint a trillion-dollar coin and spend all our problems away.

Now we are seeing it again in the suggestion by serious legal scholars that states “use the 14th Amendment” to remove Donald Trump from the ballot in 2024 because of his role in encouraging the Jan. 6, 2021, U.S. Capitol riots.

Section 3 of the 14th Amendment says that anyone who “shall have engaged in insurrection or rebellion” or “given aid or comfort to the enemies thereof” is prohibited from holding public office again.

What this meant when it was written in 1866 is not hard to guess: If you were a state or federal official who supported the Confederacy in any meaningful way, you were barred from office. The reasoning is understandable — people who had just broken their oaths to the Constitution should not have been put right back in charge of the government.

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However, Congress also allowed for that restriction to be removed by a two-thirds vote of each house. With an eye toward sectional reconciliation, legislators did exactly that in the Amnesty Act of 1872, which allowed all but the highest-ranking rebels to have their rights restored.

Last month, former federal judge J. Michael Luttig and law professor Laurence H. Tribe argued in an essay in the Atlantic that this provision applies to Trump every bit as much as it applied to Jefferson Davis. They cite as evidence a much longer treatment of the question by professors William Baude and Michael Stokes Paulsen in a forthcoming law review article.

It’s true that the amendment’s authors did not only exclude rebels from the war that ended a year earlier; they wrote generic language that covered any “insurrection or rebellion” against the United States. If a new civil war or revolution were to start tomorrow, this text would apply.

So, case closed? Not really.

As with every idea, execution is key, and here’s where the Section 3 gang runs into trouble.

In 1866, everyone knew who had fought for the Confederacy (they had uniforms and everything). Ex-rebels did not deny what they had done. Their culpability was not disputed.

Today, who counts as a “rebel” is less obvious. Should any candidate be removed from a ballot in any state because some voter accuses him of being a rebel or insurrectionist? That is essentially what Luttig and Tribe suggest, with all the inevitable court challenges that would follow.

When some state official “disqualifies Trump from appearing on a ballot or declares him eligible, that determination will assuredly be challenged in court,” they write. And “such a case will inevitably land before the Supreme Court, where it will in turn test the judiciary’s ability to disentangle constitutional interpretation from political temptation.”

Does that sound like a reasonable way to run an election? I hesitate to say that there is a potential for abuse. It would be more accurate to say I guarantee this process would be abused. Some voters would challenge Trump in every state — but some other voters would challenge Biden in all 50, too. Every candidate would face a passel of mostly frivolous lawsuits. Even if you think Trump is an insurrectionist, the flaws of this process should be obvious.

Fortunately, Congress in 1866 told us who would write the rules to enforce the 14th Amendment: itself. Section 5 of that same amendment is very clear: “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” If Congress wants to create a procedure to preclear all candidates’ loyalty credentials, it can do so — but it never has. (Congress invoked it once on an ad hoc basis in 1919, to deny a House seat to a socialist who opposed American participation in World War I.)

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The authors claim Section 3 is “self-executing” and waive away the only case on point (which says the opposite) as “poorly reasoned.” This gets us fully out of the legal mainstream and into hot-take territory.

This strained reading bears a striking resemblance to the arguments another law professor, John Eastman, pushed in the days leading up to Jan. 6. Eastman convinced Trump that because the 12th Amendment gives the vice president the duty to preside over the electoral vote count, Mike Pence thereby had the power to accept or reject ballots according to his own judgment.

Pence knew that was a dishonest reading of the text, a way for Trump to get what he wanted despite losing the election. It’s a lot like the motivated reasoning of the Section 3 crowd — if you can’t beat Trump, disqualify him! The 2020 election was not stolen, but this plan would ensure that the 2024 contest would be.

The best answer to Luttig, Tribe, Eastman, and the rest is that the way to keep unsavory characters from office is to defeat them at the polls. That, not arcane legal conspiracies, is what democracy looks like.