According to a legal theory gaining traction among Democrats and anti-Trump Republicans, former President Donald Trump may be disqualified from holding office again due to his actions leading up to the Capitol attack on January 6, 2021. This theory revolves around the “insurrection clause” in the 14th Amendment, which prohibits individuals from holding public office if they engage in insurrection or rebellion after taking an oath of office to defend the Constitution.
There are two ways this theory could be tested. One approach is for lawsuits to be filed by politicians, advocacy groups, or voters seeking judicial declarations of Trump’s ineligibility to run. Two lawsuits have already been filed in recent days in New Hampshire and Florida, though still in the early stages. The other option would be for states to refuse to list Trump on their ballots, which would potentially prompt Trump to file his own lawsuits to restore his candidacy. So far, no state has taken steps to bar Trump from the ballot, but secretaries of state are discussing the issue.
If either scenario were to unfold, it could lead to a debate over the meaning of the insurrection clause, a provision that has rarely been interpreted or invoked since its ratification in 1868. The clause was originally intended to prevent former Confederate officers from being elected to Congress.
Proponents of the theory argue that the disqualification is self-executing, meaning it automatically applies to anyone who meets the criteria described in the amendment, without requiring a criminal conviction. The only way to bypass the disqualification is for Congress to grant amnesty through a two-thirds vote in each chamber.
Prominent constitutional scholars, including conservative law professors William Baude and Michael Stokes Paulsen, as well as former federal judge J. Michael Luttig and liberal constitutional law professor Laurence Tribe, have endorsed the theory. They believe that Trump’s actions during the election and the Capitol attack clearly fall within the scope of the disqualification clause.
However, not all legal scholars agree with this interpretation. Some argue that the recent interpretations are overly broad and that the criminal justice system should be the appropriate mechanism for preventing individuals who participated in an insurrection from holding office. Others express concern about secretaries of state unilaterally disqualifying candidates from the ballot, as it may be seen as undemocratic.
To put the theory into practice, it would most likely require a lawsuit to be filed. A candidate running against Trump in the primary or general election could argue that they are directly harmed by his presence on the ballot. Interest groups or individual voters could also sue to prevent Trump from appearing on the ballot in specific states.
This legal theory presents a potential avenue for disqualifying Trump from holding future office, but it remains to be seen how it will play out in practice and whether it will ultimately be decided by the courts.