It’s been more than two-and-a-half years since Donald Trump executed a multi-layered plot to overturn the outcome of the 2020 presidential election, culminating with the deadly Jan. 6 insurrectionist assault on the U.S. Capitol that resulted in five deaths and hundreds of injuries. After The House Select Committee pursued their investigation into the failed coup attempt, Trump and many of his allies now face a federal and Georgia indictment for their role in the plot.
Because of Trump’s unprecedented efforts to subvert the Constitution and American democracy, there are growing calls for the disgraced former president to be barred from running for public office ever again under Section 3 of the 14th Amendment, adopted after the U.S. Civil War. That provision bars from office any person who swore an “oath … to support the Constitution of the United States” as a federal or state officer and then “engaged in insurrection or rebellion…”
Many constitutional scholars agree on this interpretation of the 14th Amendment, including conservative former Judge J. Michael Luttig and law professors William Baude of the University of Chicago and Michael Stokes Paulsen of the University of St. Thomas, both members of the right-wing Federalist Society. Between The Lines’ Scott Harris spoke with Donald Sherman, vice president and chief counsel of Citizens for Responsibility & Ethics in Washington, who explains the process of enforcing Trump’s disqualification from the 2024 election ballot.
DONALD SHERMAN: Section 3 of the 14th Amendment, as you said, was passed and ratified in the aftermath of the Civil War and was a tool to ensure that people who violated their oath to defend the Constitution were not afforded the opportunity to serve in the government that they sought to overthrow again.
And so in the aftermath of the Civil War, we saw several people disqualified once this provision became the law of the land. So largely between the post-Reconstruction era and Jan. 6, 2021, this provision of the Constitution was dormant. And then when Donald Trump fomented an insurrection against the United States to overturn the free and fair election, people started to ask questions about whether it was still applicable.
And, you know, my my organization was focused not on Donald Trump at the time, but but simply on ensuring that insurrectionists, wherever they were, did not serve in government. And so we brought a case in New Mexico and we won a case in New Mexico removing someone from office, a man named Clay Griffin, who was part of the insurrection. He recruited people to come to Washington and recruited men to join the battle in Washington to overturn the election. And we brought a case against him in New Mexico, and we won that case.
And, you know, there’s lots of other people who engaged in insurrection who you would seek to remove from office or prevent from being put on ballots. But the moment that we find ourselves in is that Donald Trump, the inciter of the insurrection, the chief insurrectionist, has put himself forward again to serve as president. We believe that the Constitution bars him and other insurrectionists from serving in government office, including the office of the president.
And so we are prepared to meet that moment. And, you know, I would just add that this is not a partisan position. Obviously, in recent weeks, we’ve seen legal experts across the ideological spectrum reach the same conclusion that we have.
SCOTT HARRIS: Well, Donald, I wanted to move on to how this thing will work on the ground.
DONALD SHERMAN: Sure.
SCOTT HARRIS: From what I’m hearing, each state will address the question of whether Donald Trump will appear on their state ballot in the 2024 presidential election that November. And I assume that whatever decision the state government makes through their secretaries of state, that those decisions could be appealed to the U.S. Supreme Court. Is that the scenario we have coming up for us?
DONALD SHERMAN: In substance, either secretaries of state or election officials are going to put Trump on the ballot and they’ll likely be sued or they will refuse to put Trump on the ballot and they will likely be sued. I can’t imagine that too many of them will end up getting sued because I think, at the end of the day, this issue needs to be resolved and it will be elevated to the Supreme Court probably sooner than later, depending on when the first suit is filed and how that resolves.
But yeah, I mean, I imagine this is going to start as a trial court and move its way up. And somewhere along the way, somebody is going to sue the secretary of state.
SCOTT HARRIS: So we have a supermajority of extremist right-wing judges on the Supreme Court currently who really don’t seem to adhere much to precedent and some of them refer to themselves as originalists. What’s your prediction about how the U.S. Supreme Court, with this super right-wing majority, how they’ll come down on this question?
DONALD SHERMAN: Well, I won’t characterize the court except to say that to the extent that there are originalists on the court, I think the originalist argument for Donald Trump’s disqualification is pretty strong, right? As professors (William) Baude and (Michael Stokes) Paulson laid out in their excellent law review article, as my team and our co-counsel at CREW litigated in New Mexico, there is a strong case, stronger than most to be made against the former president because most of the former president’s conduct happened in the light of day or was documented by the Jan. 6 Committee, but also means that there is ample evidence that can be acquired by a court to make that determination. And hopefully, will be considered by the Supreme Court when the issue reaches them.
I’ll just say this is not just about the 2024 election, but whether we have safe and fair elections for the next 50, 100, 250 years.
For more information, visit Citizens for Responsibility & Ethics in Washington’s website at citizensforethics.org.
Listen to Scott Harris’ in-depth interview with Donald Sherman (26:29) and see more articles and opinion pieces in the Related Links section of this page.
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