Two conservative law professors who are active members of the Federalist Society have determined that Donald Trump is ineligible to be president again, as a Constitutional provision (Section 3 of the 14th Amendment) bars anyone "engaged in insurrection" from holding office.
This conclusion comes after professors William Baude of the University of Chicago and Michael Stokes Paulsen of the University of St. Thomas studied the issue for more than a year. "When we started out, neither of us was sure what the answer was," explained Professor Baude, via The New York Times. "People were talking about this provision of the Constitution. We thought: 'We're constitutional scholars, and this is an important constitutional question. We ought to figure out what's really going on here.' And the more we dug into it, the more we realized that we had something to add."
Although their extensive, detailed findings will be published in The University of Pennsylvania Law Review next year, Baude offers their study's conclusion in a nutshell: "Donald Trump cannot be president — cannot run for president, cannot become president, cannot hold office — unless two-thirds of Congress decides to grant him amnesty for his conduct on Jan. 6."
A law review article will not, of course, change the reality that Mr. Trump is the Republican front-runner and that voters remain free to assess whether his conduct was blameworthy. But the scope and depth of the article may encourage and undergird lawsuits from other candidates and ordinary voters arguing that the Constitution makes him ineligible for office.
"There are many ways that this could become a lawsuit presenting a vital constitutional issue that potentially the Supreme Court would want to hear and decide," Professor Paulsen said. …
There is, the article said, "abundant evidence" that Mr. Trump engaged in an insurrection, including by setting out to overturn the result of the 2020 presidential election, trying to alter vote counts by fraud and intimidation, encouraging bogus slates of competing electors, pressuring the vice president to violate the Constitution, calling for the march on the Capitol and remaining silent for hours during the attack itself.
"It is unquestionably fair to say that Trump 'engaged in' the Jan. 6 insurrection through both his actions and his inaction," the article said. …
The provision in question is Section 3 of the 14th Amendment. Adopted after the Civil War, it bars those who had taken an oath "to support the Constitution of the United States" from holding office if they then "shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof."