Constitutional lawyer explains why Trump shouldn’t be removed from ballot

Can former President Donald Trump be banned from the 2024 presidential election ballot over his actions surrounding the Jan. 6, 2021 riot at the United States Capitol building? Some legal scholars and politicians are trying to make that case. 

Advocates for removing Trump contend the Jan. 6 riot was an insurrection and that Trump should be disqualified as a a result.

Section 3 of the 14th Amendment states in part: “No person shall…hold any office…having previously taken an oath…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.”

Now some secretaries of state are wondering how they should legally move forward with Trump on the ballot. 

However, a number of constitutional law experts argue the 14th Amendment does not apply to Trump. That includes the director of the Constitutional Law Center at Stanford Law School, Professor Michael McConnell, who joined Straight Arrow News to explain. 

Ray Bogan: 

You wrote that Jan. 6 was not necessarily an insurrection or rebellion, and that the former president did not engage or give “aid” or “comfort” to it in the way that the framers [of the Constitution] meant. Why not? What was the intent of the 14th Amendment?

Professor McConnell: 

The 14th Amendment was enacted immediately after the Civil War. And the purpose of Section 3 was to make sure that people who had been officials of the United States government and taken an oath of loyalty and then abandoned that and supported the Confederacy would not be able to hold office until Congress gave them permission to do so.

Bogan:  

People who support using the 14th Amendment to remove Trump from the ballot say it’s self-enforcing, meaning a secretary of state can remove him on their own without a court ruling or conviction. What do you make of that argument?

McConnell: 

Well, nothing is self-enforcing. That would be enforcement by a state secretary of state, and the authority of state secretaries of state varies from one state to another. So in the first instance, that’s a question of state law. I have very little doubt that if a state election official were to remove Mr. Trump or anyone else from the ballot, under Section 3, that would be taken up to the United States Supreme Court pretty fast.

Bogan:

To that point, I want to ask you about Arizona and Michigan specifically — those are two states that Trump won in 2016 and lost in 2020. They could be deciding factors in 2024. And they also both have Democratic secretaries of state. So what do you think of the possibility of a Democratic secretary of state removing Trump from the ballot in a crucial swing state?

McConnell: 

Well, I think that’s not unlikely. There’s a lot of political pressure to do that. And there is a, you know, a colorable legal argument for it. And these days, it seems as though everybody on both sides pushes every power they have to the limit.

Bogan: 

The House January 6 investigative committee made a recommendation to the Justice Department that Trump be charged with “Incite,” “Assist” or “Aid” and “Comfort” an insurrection. But Special Counsel Jack Smith did not charge him with that. And the Justice Department has prosecuted hundreds of people for their involvement in the Jan. 6 riot but has not charged anyone with insurrection. So let’s say, for purposes of this conversation, Trump was charged and found guilty of insurrection, or somebody who was there on Jan. 6 was found guilty and that there was an official court finding that Trump gave them aid or comfort. Does that change anything? Could he be removed then?

McConnell: 

So the criminal statute of insurrection does state that anyone convicted of insurrection becomes ineligible to hold office. So there could indeed be an effect from that. Now, I don’t believe that Section 3 necessarily requires a criminal conviction. But I think it’s very significant that the Department of Justice must have thought about this. They have all the evidence, they know more about this than any of us do, and they chose not to bring a charge of insurrection against Mr. Trump or anybody else involved with Jan. 6.

Bogan: 

I would like to ask you one question about former Attorney General Michael Mukasey’s op-ed in the Wall Street Journal. He said Trump cannot be disqualified under the 14th Amendment because that only applies to officers, not elected officials. And as president, he took a different oath of office than appointed officials. But let me ask you this: Is it plausible to argue that the president is not only an officer of the United States, but he is the chief executive officer?

McConnell: 

So I’m not sure how the courts are going to rule on this or even whether they would get to it. But it is the case that the word office, either officer or civil office is used in about four different provisions of the Constitution. And the others almost certainly apply only to appointed office. So for example, the president is charged with commissioning all civil officers of the United States. He does not commission himself — no president or vice president has ever been commissioned. And the explanation for that is that they aren’t officers. Similarly, members of the House and Senate cannot serve in any civil office under the United States. And yet, in the case of a vacancy in the office, the Speaker of the House is the next right after the vice president to step in. That would be unconstitutional if the presidency is in fact a civil office. So I don’t know, ultimately how the courts would resolve this. But Attorney General Mukasey’s argument is certainly not frivolous.

Bogan: 

Secretaries of state in Colorado, Michigan, Arizona and New Hampshire are all trying to get some legal clarity on this issue. The New Hampshire secretary of state said he’s going to ask his state’s attorney general, while others have said they’re going to be going to the courts for clarity. Who should the secretaries of state be getting their guidance from? 

McConnell: 

Well, in the first instance, they should be getting their guidance from their lawyer, which is presumably the state attorney general. But ultimately, this is going to be decided in court.

Bogan: 

And what happens if 50 secretaries of state each come to their own conclusions as to whether Trump can be on the ballot in their state and they all give 50 different reasons. Who settles that?

McConnell: 

Well, my guess is that this is going to go up to the Supreme Court pretty fast and that they will settle it. I don’t actually believe the Supreme Court is likely to intervene if they leave him on the ballot. But I think if any major candidate for office were removed from the ballot on the basis of some legally questionable, and I don’t mean wrong, but questionable, debatable justification, that the Supreme Court will step in. Because, after all, Americans do have a fundamental right to cast our votes for the candidates of our choice. And if that’s going to be taken away from us, I think that the Supreme Court is going to make sure that it was properly grounded.

Bogan: 

Then finally, let me ask you one more question. In Colorado, a group of voters sued to keep Trump off the ballot. And there have also been suggestions that some of Trump’s primary opponents should sue and say they would be injured or harmed with him still on the ballot, because he would take votes away from them. In your mind, is there a particular party that can show they have true standing to sue here?

McConnell: 

I do think that other candidates are more likely to be found to have standing. And I think the leading jurisdictional problem with the lawsuit in Colorado is actually the timing, what we call in the law “ripeness.” Because nothing has actually happened. And you don’t have a right just to sue in the vacuum thinking, you know, something might happen that might be unconstitutional. Nothing unconstitutional has happened. And it might never happen. And so I think it’s not unlikely the lawsuit will be tossed out.