Boynton Beach tax attorney Lawrence Caplan filed the challenge in federal court in the Southern District of Florida citing the amendment’s “disqualification clause” for those who engage in insurrections and rebellion against the United States. The amendment was ratified in 1868 after the Civil War, during Reconstruction, and also addressed the citizenship status of freed slaves and the re-integration of the defeated Confederate states back into the Union.
Applying the 14th Amendment’s disqualification rule to Trump has been a rising talking point this month. Legal scholars, including from conservative corners, have advocated for it. And state elections officials have conceded they are having discussions about how they would respond if a challenge is lodged.
But constitutional scholar Kevin Wagner said invoking the amendment to kick Trump off the ballot is an endeavor that faces significant legal, constitutional and political hurdles.
“There’s a legitimate argument that one can make surrounding the plain wording of the 14th Amendment and the accusations of what the president did on Jan. 6,” said Wagner, a professor of political science at Florida Atlantic University. “But I think it’s a harder lift than people think and at the end of the day you have to find someone that’s willing to enforce it.”
Reconstruction era 14th Amendment punished insurrections, rebellions
The amendment’s Section 3 addresses the disqualification of any U.S. citizen from holding office if “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.”
Caplan’s filing asserts that Trump’s actions on Jan. 6, 2021 violated the amendment and asks that he be barred from seeking the presidency and from appearing on the ballot in Florida’s 2024 presidential primary next March 19.
“The bottom line here is that President Trump both engaged in an insurrection and also gave aid and comfort to other individuals who were engaging in such actions, within the clear meaning of those terms as defined in Section Three of the 14th Amendment,” the document said.
Trump has steadfastly denied wrongdoing.
On Thursday evening, before departing Atlanta following his booking on criminal charges related to the 2020 election, Trump again asserted he was simply challenging vote counts and claimed the indictment in Georgia is “election interference.”
“What has taken place here is a travesty of justice,” he said. “We did nothing wrong. I did nothing wrong and everybody knows it.
Attorney who filed challenge to Trump on ballot said issue is ‘crystal clear’
On Thursday, Caplan told the USA Today Network – Florida that his reading of Section 3 of the 14th Amendment “makes it very clear” that disqualification is a remedy “if you are accused of insurrection or interfering with the electoral process.” He said the indictment brought in Washington, D.C. by special counsel Jack Smith lays out how Trump violated the amendment.
“It’s crystal clear that that one case is exactly the kind of charges that are referenced in this 14th Amendment Section 3,” said Caplan. “It’s one of those things that if you’re an honest broker, if you’re an honest judge, and you read the amendment and you look at the facts of the case, you walk away and say, ‘He’s barred.'”
Caplan and a growing chorus of legal scholars say the amendment does not require a conviction in the courts but simply a finding that he violated the clause.
The 800-plus page report issued last year by the congressional committee that investigated Trump’s role in alleged efforts to thwart the electoral process, as well as accusations he incited the violence on Capitol Hill that day, are grounds for disqualification, they say.
Caplan’s challenge is among the first 14th Amendment-related objections lodged against Trump in a federal court. However, discussion of the 45th president’s disqualification has surged in the past week.
Legal scholars, state elections officials also mulling potential implementation of the 14th Amendment
Retired conservative federal judge J. Michael Luttig and liberal constitutional scholar Laurence Tribe on Aug. 19 wrote an article for The Atlantic in which they delineated reasons why the 14th Amendment disqualification should be applied to Trump.
Also this month, law professors William Baude of the University of Chicago and Michael Stokes Paulsen of the University of St. Thomas wrote a detailed 126-page report explaining why the 14th Amendment applies to Trump.
Intriguingly, both Baude and Paulsen are active members of the conservative Federalist Society that has been a principal player in ushering forward conservative jurists across the United States, including on both the U.S. and Florida high courts.
The topic also came up during Wednesday’s GOP presidential debate in Milwaukee. Former Arkansas Gov. Asa Hutchinson raised the potential that Trump might be disqualified under the amendment’s provisions.
Earlier that day, Michigan Secretary of State Jocelyn Benson said in an interview on MSNBC that she has held talks with election officials in other states about the potential challenges to Trump’s placement on the ballot.
Benson said that when “the time is right” she would seek an opinion from Michigan’s attorney general. She expects a constitutional challenge to Trump’s candidacy will be litigated and the courts will have the “final say” on the outcome. In the time being, she acknowledged she has been discussing the possibility with her peers in Nevada, Pennsylvania and Georgia, where Trump turned himself in on Thursday following his indictment for interfering in the state’s 2020 election count.
“We are talking with colleagues in similarly situated states … who will make a legally grounded decision, not a political one,” Benson said. “We recognize that the four of us will likely need to act in concert, if we act at all. All those discussions are happening. We recognize the seriousness of this issue.”
FAU’s Wagner agrees that the 14th Amendment may not require Trump’s conviction on any charges for it to be invoked.
“What makes it tricky is it doesn’t say you don’t have to be convicted. It just says you have to engage in it,” he said.
Nonetheless, despite the cacophony of constitutional chatter, Wagner said he thinks applying the 14th Amendment to Trump will be a challenge because of the scarcity of legal precedents.
“The problem here is that there is no real case law, there’s no dominant interpretation that we can all look at and agree that this is how it is done,” he said.
Many of the U.S. Constitution’s amendments and principles, from freedom of the press to search and seizure laws, have been amply litigated over time. As such, it’s easier to forecast how those rights might be applied or limited by court rulings.
Some of the 14th Amendment’s other provisions have been significantly litigated. For example, they served as the basis for landmark rulings like the 1954 Brown v. Board of Education school desegregation case and the 1973 Roe v. Wade abortion decision.
Notably, too, Wagner said, the 14th Amendment was invoked in the U.S. Supreme Court’s Bush v. Gore decision that ended the 2000 Florida presidential vote recount and granted the Sunshine State’s election-deciding electoral votes to Republican candidate George W. Bush.
“So, what you’re getting is legal scholars, and pretty good ones I might add, saying that if you look at how this was done historically, and what they wanted to do when they did it, then ultimately it means that he can’t run,” said Wagner. “Now, does it? I don’t know. I haven’t seen a Supreme Court case saying this and we’ve never disqualified a president that I’ve been aware of under this provision.”
http://rssfeeds.floridatoday.com/~/789509897/0/brevard/news~Palm-Beach-County-lawyer-files-legal-challenge-to-disqualify-Trump-from-presidential-race/ Florida attorney’s 14th Amendment lawsuit aims to disqualify Trump