Two conservative legal scholars argue that former Pres. Trump is barred from holding office. They point to Sec. 3 of the 14th Amendment which bars persons who “engaged in insurrection” from holding office in the U.S. government. That section of the 14th Amendment was aimed at former Confederates who might seek elected office. But, the wording is broad enough To apply to anyone who “engages in insurrection.”

The article, written by William Baude of the University ion Chicago Law School, long known as a conservative law school, and Michael Stokes Paulsen of the University of St. Thomas School of Law, will be published in the University of Pennsylvania Law Review. Both of the authors are members of the Federalist Society and consider themselves to be originalists.

The authors point to Trump’s exhortation on Jan. 6 that his followers “fight like hell,” his attempts to intimidate state officials regarding vote counting, Trump’s efforts to persuade state legislatures to overturn election results, his attempts to pressure Congress to reject votes, and his attempt to pressure Vice-Pres. Pence to reject legitimate vote counts. And, the professors note his indifference as the Jan. 6 riot unfolded.


The professors note that in 1872 and 1898, Congress specifically issued amnesty to former Confederate officials. That indicates Congress at the time viewed Sec. 3 ban as ongoing and effective. Because Sec. 3 of the 14th Amendment came after other amendments, it would supersede prior amendments such as the 1st Amendment and its free speech clause. We must note that the plain language of Sec. 3 is straight forward. The challenge will be to show that Trump’s actions and those of his conspirators amounted to engaging in “insurrection.”

See ABA Bar Journal report here.