The one Trump ban that might actually work
With 2022’s election night in the rearview mirror, the 2024 presidential election will soon dominate the headlines. Donald Trump is still popular among Republicans and will likely run. As he said earlier this month, “in order to make our country successful and safe and glorious, I will very, very, very probably do it again,” and last week, he promised to make a “special announcement” at Mar-a-Lago on Nov. 15.
Given Trump’s dangerous refusal to accept the 2020 presidential election results, it’s appropriate to consider all options for how to address his potential candidacy.
Many think Trump’s sprawling legal troubles will prevent him from retaking the presidency. But this is wishful thinking. The United States Constitution requires a unanimous jury verdict to convict someone of a serious crime. Given that so many Republicans steadfastly support the former president, the odds of such a verdict — even in the face of clear legal violations — are low.
Moreover, since the Senate acquitted Trump after he was impeached — twice — disqualification under the Impeachment Clause of the Constitution is off the table.
But these facts do not necessarily mean that Trump is eligible to be president again. Section 3 of the 14th Amendment to the Constitution prevents officials from holding office again who have “engaged in insurrection” against the United States. Trump’s actions on and around Jan. 6,
2021 — when he mobilized a deadly mob to ransack the United States Capitol — may qualify as insurrection under Section 3.
The precedent is there. In September a federal judge removed a New Mexico County Commissioner from office under Section 3 because the commissioner participated in the Jan. 6 riot. The judge formally ruled that the events at the Capitol constituted insurrection under the Constitution. If a mere participant in the riot committed insurrection, then a strong argument can be made that Trump — who mobilized the mob and also pressured government officials to overturn the election results — did so too.
Individual states, which primarily administer their own elections, can thus attempt to keep Trump off the presidential ballot on the basis that he violated Section 3. If enough states did so, the effort could effectively prevent him from winning the Republican nomination.
The inevitable litigation flowing from such an initiative would likely reach the United States Supreme Court. Instead of a surface-level political fight, as we saw during Trump’s second Senate trial, the court would render a reasoned constitutional determination. Its decision, moreover, would be based on a fully developed set of facts — unlike the thin evidentiary record in the Senate trial, which was conducted shortly after the Jan. 6 Capitol riot. Indeed, the Jan. 6 Committee in Congress has built an impressive record of Trump’s election-related behavior, all of which could potentially be used in litigation to establish he committed insurrection.
What would the Supreme Court ultimately decide?
While the court has veered sharply to the right after Trump appointed three justices, the narrative that the current conservative majority is merely a pack of pro-Trump partisans is too simple. The conservative justices have repeatedly ruled against Trump in major cases, including those relating to immigration, LGBTQ rights and whether Trump’s records could be accessed by a New York prosecutor and the Jan. 6 committee. And, of course, the court rejected Trump’s broad litigation effort to overturn the 2020 presidential election results.
Attempting to ban Trump under Section 3 would be a monumental step. American democracy is premised on the essential principle that the people have the right to choose their president in free and fair elections. But that right is not absolute. The Constitution sets forth numerous limitations on who is eligible to be president. And Section 3 — duly enacted by the American people within a constitutional amendment — prohibits an official who has committed insurrection from holding public office again.
If one or more states try to ban Trump from running under Section 3, the Supreme Court will likely decide whether he committed insurrection against the United States. Given the dangerous and destructive nature of his behavior, the court just might rule against him again.