INTERVIEW: So Is Trump Eligible to Run?

By Reuvain Borchardt

Clark Neily discusses whether Donald Trump’s efforts to overturn the 2020 election results mean Trump has “engaged in insurrection or rebellion” that would disqualify him from running for the presidency, per Section 3 of the 14th Amendment of the U.S. Constitution.

Neily is senior vice president for legal studies at the Cato Institute. He is an adjunct professor at George Mason’s Antonin Scalia School of Law, where he teaches constitutional litigation and public-​interest law. He previously served as senior attorney and constitutional litigator at the Institute for Justice. He received a B.A. in Plan II (with concentrations in philosophy and Russian) from the University of Texas at Austin, and he received his law degree from the University of Texas, where he was chief articles editor of the Texas Law Review.

Section 3 of the 14th Amendment reads: “No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.”

The legal discussion over disqualifying Trump, particularly on the political right, has been juiced by an article in the Pennsylvania Law Review by conservative constitutional scholars William Baude and Michael Stokes Paulsen, titled “The Sweep and Force of Section Three,” arguing that Trump is disqualified from the presidency.

Is Donald Trump eligible to run for president in 2024?

The best we can say right now is that reasonable minds can differ, but that the case for the possibility of his ineligibility seems to be stronger than a lot of people would have thought.

Well, what’s your opinion of it?

It comes down to one’s view of whether it is reasonable to say that the aggregate of Donald Trump’s behavior in the wake of the last presidential election amounts to an “insurrection or rebellion.” I think an insurrection is the more plausible characterization. Rebellion typically involves an effort through force of arms to overturn a lawfully constituted government, and I think it’s a stretch to apply that to Trump, but I think “insurrection” is closer.

So you’re not arguing firmly one way or the other, but you’re leaning toward accepting Baude and Paulsen’s arguments.

Let me put it this way. Ultimately, somebody has to be the final decision maker, and we can talk about who that’s likely to end up being. I think that someone who was in a position to make that decision and concluded that Trump is ineligible under Section 3 of the 14th Amendment would have a highly defensible basis for doing so. It’d be very difficult for anybody to say no, you are categorically mistaken and your decision should be reversed.

The 14th Amendment was ratified in the wake of the Civil War, and Section 3 was obviously inspired by the issue of people who had sworn an oath to the U.S. Constitution to hold public office, then joined the Confederacy, and now after the war is over wanted to return to public office.

Alan Dershowitz has argued, in a Substack piece titled “No, the 14th Amendment Can’t Disqualify Trump,” that “a fair reading of the text and history of the 14th Amendment makes it relatively clear” that Section 3 applies only to former Confederates and not to subsequent insurrectionists or rebels. What do you think of that?

Preposterous. That argument is completely demolished in the article by Baude and Paulsen. It’s not a credible argument at this point.

The second of Section 3’s two sentences says, “But Congress may by a vote of two-thirds of each House, remove such disability.” Congress in fact did pass, as Baude and Paulsen write, “two major 19th-century statutes granting amnesty to those covered by Section Three.” Baude and Paulsen say that those laws only granted amnesty to past Confederates, not anyone who might commit insurrection or rebellion in the future.

Again, we’re getting into territory where reasonable people can disagree. But the idea that an act of Congress should be read to effectively repeal an entire constitutional provision is a stretch. And I would say it’s a claim that is sufficiently extraordinary that it’s reasonable to require extraordinary proof of anybody advancing that view. And I just haven’t seen an extraordinarily persuasive argument that in effect, Congress tacitly repealed Section 3 through those two pieces of legislation. It seems highly unlikely. I would expect a much more persuasive argument to be made in support of that position than I have so far seen.

Let’s grant that Trump lost the election and attempted to overturn that loss. Here is the key question: What exactly did he do that would be considered an insurrection or rebellion?

We don’t know the answer yet about what exactly constitutes an insurrection, because we don’t have a lot of well-developed case law on this. Case law is developed if activity that could plausibly be described as an insurrection happens sufficiently frequently that we’re litigating this all the time. But we’re just not.

Again, reasonable people can disagree about the meaning of insurrection. But I think at a minimum, it describes conduct that has the goal or objective of disrupting the lawful proceedings of the United States government, the goal of which is for somebody who does not lawfully possess some power to seize that power over the United States government. That is a reasonable definition of insurrection — essentially to take power over the government that one does not lawfully possess.

According to Paulson and Baude’s “working definitions,” rebellion is “an effort to overturn or displace lawful government authority by unlawful means,” while insurrection is “concerted, forcible resistance to the authority of government to execute the laws in at least some significant respect.”

I think that the two terms are to some extent overlapping. And we have to be careful about embracing a definition of “insurrection” that simply says interfering with the operation of government, because that could sweep in too much conduct, including some plausibly constitutionally protected conduct, like holding a public protest outside of a government building that makes it somewhat more difficult for people who work in that building to get to work. Is that “insurrection”? In my book that’s a lawful protest.

Baude and Paulsen do say an insurrection would means resisting government’s authority to execute its laws in a significant respect, so that wouldn’t seem to include a typical protest in front of a government building. But if people are upset at a particular proposed law and decide to do a sit-in at the Capitol that blocks the lawmakers from taking a vote, according to Baude and Paulsen’s definition wouldn’t that be obstructing execution of the law in a significant respect, rendering those protesters insurrectionists?

Yes, I think, according to the definition that’s given in the paper. But that makes me very uncomfortable. And I would be very surprised if that bare definition were considered in this context. When you’re talking about preventing a major party’s chosen candidate from being on the ballot in a given state, I would be very surprised if many people would say that if, for example, Donald Trump had hypothetically simply encouraged some people to sit in the rotunda of the Capitol, making it more difficult for the Congress to do its business, that is sufficient, prudentially, to constitute an insurrection.

Are you saying that what makes the Jan. 6 protest an insurrection is specifically that it was seeking to prevent the business of certifying the election and upholding democracy with a transfer of power; and that if it had instead merely prevented the Congress from doing its regular business, it would not have been an insurrection in your book?

I’m going to be very precise here: In my book, it would not reach the prudential standard that I would find advisable — I don’t know about necessary, but at least advisable, and desirable, maybe necessary — to find that a presidential candidate isn’t eligible based on the 14th Amendment.

It’s a really, really big deal, and we have to be very careful not to interpret any of the words of the 14th Amendment in such a way that it could be invoked against political candidates who have engaged in perhaps some unseemly conduct, potentially even conduct that in some way interfered in the smooth operation of government, but wasn’t really aimed at either preventing the peaceful transfer of power or aggrandizing one’s own power unlawfully.

So although you think that Paulsen and Baude have too low a bar for insurrection, even by your narrower definition, Trump is guilty of insurrection.

Yes, in the aggregate, it is a fair characterization.

Trump engaged in a concerted effort to unlawfully interfere with the peaceful transfer of power after losing the election. That conduct occurred over a period of a couple of months, at least. So I would not look at any one action on his part in isolation. It’s not just a phone call to Brad Raffensperger in Georgia, it’s not just the speech on the Ellipse. We would need to look at that conduct in the aggregate.

You’ve used the term “prudential” a couple of times — what exactly do you mean by that?

In this context, I use the word “prudential” to describe a way of interpreting ambiguous or imprecise constitutional text that considers the likely consequences of choosing one plausible interpretation over another essentially equally plausible interpretation. If the application of standard interpretive methodologies — and there are many — does not point clearly towards one interpretation over the other, then prudence would suggest choosing the interpretation that is less likely to produce potentially disastrous consequences.

By way of illustration, one certainly could interpret the word “arms” in the Second Amendment to include nuclear weapons. But I think the term “arms” is sufficiently imprecise that it does not compel that interpretation. If so, then plainly the more prudent approach would be to embrace the interpretation that does not result in private citizens having a constitutional right to possess nuclear weapons. By contrast, the requirement that someone be 35 years old to be president is so precise and unambiguous that it’s difficult to see any role for prudence in interpreting and applying that provision — it means what it plainly says on its face, and there’s little if any room for considering potential consequences, even if they could somehow appear potentially dire.

Speaking of the events preceding January 6, which include all the lawsuits Trump filed challenging the election results: Most people probably think the lawsuits were frivolous, but they were legal proceedings brought under the laws of the various states. Can it be considered insurrectious to file lawsuits, even frivolous lawsuits?

That, would be, again, a question about which reasonable people can differ. It’s difficult to answer in the abstract. But if the only thing that the candidate in question has done is to file legal actions, seeking to raise questions about potential irregularities in an election that they appear to have lost, it would be a stretch to render them ineligible based solely on that.

Even if the lawsuits were based on what most people consider quacky legal theories?

I think that’s right.

But again, look, I’m just one guy with an opinion, and a lot of this is more a matter of prudence than just pure legal analysis.

If a person avails themselves of a legal process, perhaps even in bad faith with a series of frivolous lawsuits, most of us have some faith that the system is resilient enough to essentially shrug that off — which is exactly what happened. He and his supporters did file a series of mostly frivolous cases, and the judiciary acquitted itself admirably in throwing off all but one or two of those where there may actually have been some plausible concern about the handling of the election. But we’re a country of 365 million people; every election is going to produce some irregularities.

I don’t think the question is whether there might have been an irregularity in one or two states; it’s whether the irregularities were anything close enough to actually overturn the result.

That’s exactly right.

You could make an argument that he’s entitled to try to figure that out through litigation. But you could also make an argument that there was at least a sort of baseline requirement of some minimal level of good faith that was arguably absent here.

I’m glad you brought up the issue of good faith, because I was actually about to ask about that. What if Trump — whether because he’s crazy, narcissistic, getting bad advice or for any other reason — believed that he won the election just as fervently as you believe that the sun will rise tomorrow morning. In his mind, his lawsuits are not frivolous and he is not overturning the election but ensuring that the correct result is borne out.

Paulsen and Baude write, “It … is no defense that an individual believed (even if mistakenly) that the election had in fact been stolen.” What do you say? Would having such belief be a defense here to having engaged in insurrection?

Not under the facts as we know them to be, and let me give you an analogy for this: Imagine somebody throws cinderblocks off an overpass, and this person has a good-faith belief that cars on the road today are required to have a forcefield around them that that will protect them from cinderblocks being thrown off an overpass. That might be a sincere belief, but not a rational one. If they were to kill somebody with one of those cinderblocks and be charged with reckless homicide, the jury wouldn’t be required to credit the defendant’s subjective irrational belief that they weren’t putting anybody at risk because all cars have a forcefield around them.

You can get down in the weeds here. And it can matter whether your belief about a given thing is reasonable or unreasonable. But generally speaking, when we’re talking about the legal term “recklessness,” we focus not on the mental state of the person engaging in the conduct, but on objective reality as we know it: did the person disregard a substantial risk that what they were doing would hurt somebody?

In the cinderblock example, nobody is hurt by the person choosing simply to not throw the cinder blocks. But an election is a zero-sum game: the more Biden and his supporters are hurt, the more Trump and his supporters gain, and vice versa. Therefore, Trump could say that by challenging the results, yes there is a risk that he’s unlawfully harming Biden and his voters, but by not challenging the results, there’s a risk that he is hurting himself and his voters.

That is one way to look at it. But the idea that as long as Trump had a sincere belief that he had won — even if it was a delusional belief, which I think would be a fair word to use here — that he, in effect, gets a free pass, is problematic. I would say that how rational that belief is should matter in this circumstance.

Moving on to the events of January 6: There was Trump’s speech encouraging the protest — though he did say it should be done “peacefully and patriotically” — followed by his inaction for hours as his supporters rioted. In context of everything else that happened in prior months, you consider that to be Trump engaging in insurrection?

I’m not going to be put into a position where I have to determine what portion of all conduct that he engaged in constitutes insurrection. It’s like the Sorites Paradox: how many how many grains of rice amounts to a heap of rice? Well, how many democracy-thwarting actions on his part amount to an insurrection? I don’t know.

So you’re saying you can’t point to any one thing, but it’s the totality of his actions between Election Day and January 6.

Yes, in this particular instance.

If Trump had gone to the Capitol with a gun and said, “I will shoot Mike Pence if he certifies this election,”  that would be a single act constituting an insurrection. But Trump has a knack for sort of making it clear what he wants to have happen but not taking full accountability — preserving some ability to have deniability.

You add all this up — and keep in mind that this is not a court of law where somebody has been charged with a crime of insurrection and you need to prove each element of the crime beyond a reasonable doubt; this is a fundamentally political decision about whether this person has engaged in sufficiently-insurrection-flavored behavior, that adding it up together, we are prepared to use that term “insurrection” to describe it, knowing that the reason we’re asking this question is to determine whether he is eligible to hold the office of President of the United States again.

And there’s no way to suck out the prudential element from any of that. There is no strong prudential element in deciding whether to convict somebody of shoplifting: they either did the thing or they did not do the thing, and the standard of proof was either met or it was not met. There’s not a lot of prudential reasoning that goes into it. But this is the opposite. This is mostly prudential.

Baude and Paulsen say that Section 3 is “self-executing,” meaning Trump doesn’t have to be convicted of the crime of insurrection for Section 3 to take effect. They say everyone involved in the election process should implement it. For example, a state’s secretary of state who determines that a candidate engaged in insurrection and is ineligible to hold office, should not put that candidate’s name on the ballot. What’s your opinion of that?

It’s a really fascinating question. And on balance, I do believe that Baude and Paulsen still have the better of the argument.

I’ll illustrate it this way: the Constitution says that no one can be president “who shall not have attained to the Age of thirty five Years.” Let’s say Trump’s son Barron, who is 17, decides to run. It’s not hard for me to imagine a secretary of state simply saying, “You are not eligible to run for president; I’m not putting you on the ballot.” I have a hard time imagining there being a hue and cry like, “Oh wait a minute, let’s see what the state supreme court says about that, and then let’s kick it up to the U.S. Supreme Court.”

So you believe the secretary of state can make the initial decision on his own — though, as Baude and Paulsen say, the candidate can challenge it and then it’ll be up to the courts to rule on it.

It seems to me that’s the best answer, because otherwise you would have to make an argument that somehow the Section 3 ineligibility criterion is materially different from the minimum-age criterion.

These are the qualifications to be president of the United States; you meet them or you don’t.

Section 3 was obviously written to deal with former Confederates who wanted to hold public office again. One can imagine that there were many people who had first sworn an oath to the United States and then rebelled by supporting the Confederacy, and they didn’t all have to have trials before being declared ineligible to run for U.S. office; it was well-known who had supported the Confederacy, though if the person disputed being characterized as a rebel, he could sue and the courts could decide. But it’s hard to imagine they all had to go through trials beforehand.

I think that’s right. That’s a nice point.

There is an argument in Baude and Paulsen’s paper that they admit is “ominous” and “unsettling”: that since subsequent constitutional amendments supersede previous ones, to the extent the Fourteenth Amendment might conflict with First Amendment rights like free speech, the Fourteenth Amendment wins. What do you think of that?

It’s a challenging question, and there are a lot of ways to answer it. I believe they basically get to the right place.

But another way to think about it would be simply to say this: what we call the First Amendment, we’re generally actually referring to the body of legal doctrine that the Supreme Court has built, by way of interpreting the First Amendment. And so if there’s an apparent conflict, it’s not literally  a conflict with the First Amendment, but instead with Supreme Court doctrine interpreting the First Amendment — which was done, presumably, in a context where no one was considering the implications of some insurrectionism in the speech.

This point actually comes up in another setting: Akhil Reed Amar made this point on a podcast, and Josh Blackman and Seth Barrett Tillman wrote an article about it, that there are a couple of Supreme Court cases that suggest that the president is not an “officer of the United States.” Section 3 only applies to those who engaged in insurrection after having taken an oath to support the Constitution of the United States “as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State,” and since president is not an” officer of the United States,” the oath Trump took as president doesn’t qualify here to make his subsequent insurrection render him ineligible to now run for office.

It would be inadvisable to simply comb through non-factually-analogous Supreme Court cases to see if you can find a sentence that comprises the holding, and say, the Supreme Court made this observation in a completely different factual context, and that it necessarily then applies to the question of whether Trump was an officer of the United States within the meaning of Section 3.

You’re saying that the Supreme Court has over the years expanded our First Amendment rights, and some of these expanded rights may indeed be infringed upon when conflicting with the Fourteenth Amendment, but the core First Amendment protections prior to their expansions over the years won’t be affected. So due to Section 3 being invoked we may have to tweak some of the First Amendment’s newly expanded protections, but it’s not like the First Amendment is being tossed in the garbage.

Absolutely right.

There are some categories of speech that the Supreme Court has determined are not protected by the First Amendment: obscenity, most famously, but also threats, fraud, etc. It’s likely that if the Supreme Court were regularly in the business of confronting insurrection claims, we’d have another category of speech that would be considered to be outside the ambit of the First Amendment: insurrectionist speech.

The Court has not made an effort to fine-tune its First Amendment jurisprudence to make sure that it dovetails perfectly with Section 3, because it hasn’t come up.

Well if Trump were declared ineligible under Section 3, or even if there were a serious attempt to do so, you know what’ll happen: Republicans will say, “Biden engaged in insurrection by leaving the border open and allowing in illegal aliens,” or whatever, and that’s it, we’re going to start the same cycle it seems we’ve begun with impeachment, wherein each party will try to get the other party’s candidate deemed an insurrectionist.

I don’t know. It’s easier to come up with a parade of horribles than it is to predict whether they will in fact unfold. If somebody said they were absolutely certain that that was going to happen, I would say, “Give me odds, and I’ll take the other side of that bet.”

Make a prediction on what’s going to happen here: Are Baude and Paulsen’s arguments going to be accepted by the right? Is there going to be a concerted effort to have Trump declared ineligible? And what will the Supreme Court decide if it gets this case?

There was already a concerted effort to invoke Section 3; it’s going on in a number of states. I think that these are credible undertakings and that number will increase. Reasonable people can disagree, but I don’t think that they are easily dismissed with the wave of a hand, as I’ve seen many on the right try to do. Will any of the states in which Section 3 proceedings have been or will be initiated find that Trump is ineligible to be president and therefore keep him off the ballot? I would say the odds are slightly against. Let’s call it 55-45.

There’s a very good argument that the U.S. Supreme Court should stay out of this. The ultimate decision makers would probably be state supreme courts. And I think that’s an entirely reasonable outcome.

There are some questions where we do want national uniformity. And that is very much the business that the U.S. Supreme Court sees itself as being, so that, for example, some federal criminal statute doesn’t mean one thing in California and something completely different in New York. To me, this is not that kind of question. This is fundamentally a prudential question about whether someone who has engaged in the behavior that Donald Trump engaged in should be eligible to be president again — not just subjectively, how do you feel about it, but recognizing that there is a provision in the Constitution that says that some people who have engaged in certain types of conduct are ineligible. Whether that standard has been met, to me, is at least as much a prudential question as it is a legal question, and it is not at all clear to me that the U.S. Supreme Court is the ultimate repository of prudence.

We have to have some entity that gives us final answers to purely legal questions, and that’s the U.S. Supreme Court. But I don’t think we need, nor should we desire, a single institution that gives us single uniform answers to fundamentally prudential questions. And it’s entirely appropriate for one state supreme court to find that the standard is met and Trump is ineligible

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rborchardt@hamodia.com