Former U.S. president and Republican presidential candidate Donald Trump smiles during a campaign rally in Windham, New Hampshire, on Aug. 8.REBA SALDANHA/Reuters
The 91 felony counts against Donald Trump in four criminal trials aren’t the only judicial challenges he faces as he seeks to return to the White House. Legal action filed in New Hampshire this week could imperil his effort to assume the presidency again.
This newest court case leans on a seldom consulted 155-year-old clause in the 14th Amendment, one of the most cherished elements of the American Constitution. The amendment, added to the country’s governing document three years after the Civil War, is best known for providing legal rights to Black people, including the formerly enslaved, and for assuring “equal protection of the laws” to all Americans – a phrase that for decades has been the keystone in countless lawsuits in the United States.
But the amendment also includes a section barring from office anyone who “shall have engaged in insurrection or rebellion” against the United States or who has “given aid or comfort to the enemies” of the country. This passage was aimed at those who supported the Confederate States of America whose secession from the rest of the country prompted the 1861-1865 Civil War.
The suit was filed by a little-known presidential candidate, John Anthony Castro of Texas, who has run repeatedly and successfully for several offices as both a Republican and Democrat. He is seeking to remove the former president from the ballot in New Hampshire, site of the first presidential primary.
Mr. Trump’s opponents are arguing that Section 3 of the 14th Amendment did not lapse with the death of the final Confederate office holder or military official “whose treasonous designs for the country inspired the provision,” according to Laurence Tribe, the prominent emeritus constitutional law professor at Harvard, and federal appellate Judge J. Michael Luttig, who advised former vice president Mike Pence to resist Mr. Trump’s 2021 entreaties to overturn the 2020 election.
“Given Mike Luttig’s involvement, there is a depth to this that I wouldn’t dismiss,” said Thomas Rath, a Republican and former New Hampshire attorney-general. “It’s a reasonable argument to make. But this will need a court adjudication that Trump was specifically involved in an insurrection.”
Mr. Castro’s argument rests on the notion that Mr. Trump is constitutionally barred for having “provided aid or comfort to the insurrectionists” who produced the Jan. 6, 2021, riot at the Capitol.
Mr. Tribe said in an interview that the first step would be a review in a state court. “They’ll have to decide whether he engaged in an insurrection or that he gave aid and comfort to those who did. Those are potentially different things. The offering of pardons to insurrectionists, for example, may be a form of aid and comfort.” Mr. Trump said on Sept. 1, 2022, that he would do so if returned to the White House. “I mean full pardons with an apology to many,” he told conservative radio host Wendy Bell.
The Trump campaign said the effort had “no basis in fact or law” and that it would be dismissed in a court action.
The 14th Amendment is the centrepiece of what Eric Foner, perhaps the leading expert on the Reconstruction period that followed the Civil War, described as the “Second Founding” of the country in an influential 2019 book of the same name. The Columbia University professor argued that the 14th Amendment and other postwar constitutional provisions “forged a new constitutional relationship between individual Americans and the national state” and were crucial in “creating the world’s first biracial democracy, in which people only a few years removed from slavery exercised significant political power.”
Some legal analysts consider the New Hampshire suit based on this amendment as much of a long-shot as Mr. Castro’s GOP presidential campaign. “A fair reading of the text and history of the 14th Amendment makes it relatively clear … that the disability provision was intended to apply to those who served the Confederacy during the Civil War,” Alan Dershowitz, a Harvard law professor who supported Mr. Trump in fighting his second impeachment, argued in his online newsletter. “It wasn’t intended as a general provision empowering one party to disqualify the leading candidate of the other party in any future elections.”
Republican activists have pressed New Hampshire’s secretary of state, David Scanlan, to repudiate this effort. Mr. Scanlan and the state’s attorney-general, John Formella, are, according to a statement, “carefully reviewing the legal issues involved” but have not ruled on the issue. It is not clear how this initiative could be enforced, and it surely would invite court challenges from Mr. Trump’s allies and perhaps from other quarters.
Much of the legal initiative is based on an article in the respected University of Pennsylvania Law Review from an unlikely source, two members of the conservative Federalist Society, William Baude of the University of Chicago and Michael Stokes Paulsen of the University of St. Thomas. In the article, the two law professors argue that the amendment’s “full legal consequences have not been appreciated or enforced” and that the insurrection language is “self-enforcing, operating as an immediate disqualification from office, without the need for additional action by Congress.” They contend the amendment “disqualifies former president Donald Trump, and potentially many others, because of their participation in the attempted overthrow of the 2020 presidential election.”
It was this provision that apparently was the basis for the remark by former governor Asa Hutchinson of Arkansas, a onetime U.S. attorney, during last week’s Republican debate that he would not support Mr. Trump if he is the GOP nominee because “I’m not going to support somebody who’s been convicted of a serious felony or who is disqualified under our Constitution.”