Trump vs. the Constitution: Exploring Section 3 of the 14th Amendment

Episode Notes

Transcript

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Ron Fein: There is no constitutional barrier to someone who has been convicted of crimes from taking the presidency. In fact, there’s no constitutional reason why somebody who was currently incarcerated couldn’t become president although it would be extraordinarily inconvenient so that’s one of the reasons why we have been pointing to Section 3 of the 14th Amendment because that is the provision in the Constitution that says that Donald Trump cannot hold public office.

Male: Welcome to the award-winning podcast Lawyer 2 Lawyer with J. Craig Williams, bringing you the latest legal news and observations with the leading experts in the legal profession. You’re listening to Legal Talk Network.

J. Craig Williams: Welcome to Lawyer 2 Lawyer on Legal Talk Network. I’m Craig Williams coming to you from Southern California. I write a legal blog named “May It Please The Court” and I have books out “How to Get Sued” and “The Sled”. With primary set to starting the spring of 2024 an upcoming presidential election and a number of federal and state indictments against former president Donald J Trump including the January 6th indictment Section 3 of the 14th Amendment has taken center stage. It reads, “No person who has taken an oath as an officer of the United States can hold office if they have engaged in insurrection or rebellion against the same or given aid or comfort to the enemies thereof,” well, legal scholars have taken notice in a piece in the Atlantic Harvard law professor Lawrence Tribe and former judge of the United States Court of Appeals for the fourth circuit J. Michael Luttig, discussed how the Constitution prohibits Donald Trump from ever being president again and also featured in a New York Times article Professor William Patrick Baude and Professor Michael Stokes Paulsen who are two members of the Conservative Federalist Society, one of them the founder, had conducted research on Section 3 and have released a paper a law review article with their findings in the pages of the Pennsylvania law review supporting the disqualification of former president Trump for public office. So will Section 3 of the 14th Amendment actually impact the presidential election and eliminate Donald Trump from running?

Today on Lawyer 2 Lawyer we are going to spotlight Section 3 and what this could mean for the upcoming presidential election. And to help us better understand this issue we are joined today by Ron Fein, the legal director of Free Speech For People. Ron litigates campaign, finance, election protection, government accountability and other constitutional democracy cases in courts across the United States. He regularly testifies before state and local governments around the country and is an author of “The Constitution Demands It” the case for the impeachment of Donald Trump published in 2018. Welcome to the show, Ron.

Ron Fein: It’s great to join you, Craig.

J. Craig Williams: Hey Ron, why don’t you give us a little bit of idea about your work as the legal director for Free Speech For People, what led you there kind of background of what it is you do.

Ron Fein: Thanks so free speech for people was founded on January 26m 2010, which is the date of the U.S. Supreme Court’s decision in Citizens United versus Federal Election Commission, which as you know, unleashed a corporate political spending in elections by holding that corporations have the same rights as people to spend money on political elections in the United States and that really transformed the landscape of campaign finance and the influence of money in politics in this country. I had previously been at the United States Environmental Protection Agency and even before Citizens United I had seen how environmental policy making was time and again, not just at the federal level, but also at the state and sometimes local level stymied by the influence of big money in politics and so, that’s why I joined Free Speech For People and we focused on campaign finance reform and we continued to do so since 2010, since Trump came into office, of course that presented a new and additional in some ways more urgent threat to our constitutional democracy and that’s why when he refused to divest himself of his businesses, which put him in violation of the foreign and domestic emoluments Clauses of his businesses which put him in violation of the foreign and domestic emoluments clauses of the U.S. Constitution, we launched an impeachment campaign on the day of his inauguration in 2017 and more recently after January 6, 2021 as we’ll discuss, we filed the first challenges under Section 3 of the 14th Amendment in 150 years back in January of 2022 and brought the first trial under Section 3 of the 14th Amendment since reconstruction and that’s what brings us here today.

(00:05:05)

J. Craig Williams: Right well there has been, I think a trial in the meantime, wasn’t there a senator that got bounced and then overturned in the Supreme Court to be able to get back into Congress?

Ron Fein: I’m not sure if that’s exactly how it played out there was a case involving a member of the house called Victor Burger in 1919 and that’s why when I say we filed the first lawsuit to disqualify a candidate in 150 years, Victor Burger was a case where the house used its power to be the judge of the qualifications of its members to exclude him and most people agree that that wasn’t the best use of Section 3 of the 14th Amendment at this point and then ultimately, he was later admitted.

J. Craig Williams: Right for three terms. I believe.

Ron Fein: The important thing about the Victor Burger case is that in that process, Victor Burger argued unsuccessfully to the U.S. House that Section 3 of the 14th Amendment only applied to the Civil War and had no lasting implications and the House quite rightly rejected that and said that it was written prospectively in language to apply for all time.

J. Craig Williams: Right and it seems that Congress has a separate right to be able to enforce the 14th Amendment the Section 3 apart from either the state collectors and also apart from the state from federal and state courts. In fact, there’s a decision I think in New Mexico preventing a New Mexican Congressman, I believe or state senator from taking office because of his participation in the election. Actually a conviction, is that correct?

Ron Fein: It’s slightly different but that’s the general thrust of it. That was a case that was launched by a different organization called Crew against a county commissioner in New Mexico named Qui Griffin for his involvement in the January 6th Insurrection and it wasn’t a challenge to him as a candidate. He was already in office, it was using a different legal procedure called a quo warranto, which is a sort of ancient Latin procedure that still exists in most states as a means to challenge a state or local official’s ability to hold office and they succeeded in that case and he was removed from office.

J. Craig Williams: Right and there seems to be little question that the 14th Amendment the third section was enacted in 1868 in order to prevent the reconstructionists or the southerners from actually coming back and I think the some of the Civil War people that were sent to Congress including a vice president of the Confederacy along with generals and so forth, what was the idea behind the the original enactment of the this section?

Ron Fein: Right after the Civil War ended several leading ex-confederates showed up to Congress and said, “Hey I’ve just been elected,” and presented their credentials as if nothing had happened. As if they hadn’t been disloyal and hadn’t launched a bloody war that you know led to hundreds of thousands of deaths and Congress the Republican Party was quite rightly outraged and that included as you said a former vice president of the Confederacy, Alexander Stevens, several ex-confederate generals and members of the Confederate Congress and so the Republican Congress, the United States Congress I should say the Union at that time refused to seat them on the grounds of disloyalty and they began a process that’s known as reconstruction, where they realized that the leadership of the Confederacy was too dangerous to allow to remain in power because if they stayed in power then they would just go on as if nothing had happened and resumed their old ways so the idea of reconstruction was to some extent, radical.

It was to remake that society but a key part of that was to say that the leadership of the slave power could not come back into power and as part of that, they enacted the 14th Amendment. Most people are more familiar with the Section 1 of the 14th Amendment, which includes the due process clause, which requires states to guarantee due process of law and the equal protection clause, which requires states to treat people equally, but Section 3 was actually more important to Congress at the time because they saw it as essential to preventing another rebellion and it says that anyone who should have known better, who held a position that required them to support an oath to the Constitution and then engaged in insurrection or rebellion against the United States couldn’t be trusted to hold public office unless and until two-thirds of both houses of Congress would vote to grant them amnesty.

(00:10:17)

And so while this provision was in his greatest effect which was for until about 1872 there were tens of thousands of ex-confederates who were kept out of the halls of power and that’s really when the south was able to begin to build a more inclusive democracy. Unfortunately, at some point, the north got basically tired of reconstruction and ended it prematurely and granted a widespread amnesty that allowed most of those ex-confederates to return to power and that’s why we saw the rise of Jim Crow and so forth but during the time when it was actually implemented, it was effective at preventing the return to power of those who had led the rebellion against the United States.

J. Craig Williams: And how is January 6th any different?

Ron Fein: Well in many ways January 6th isn’t that different so obviously the number of deaths of January 6th is smaller than the Civil War and we can put that aside because one thing that we do know is that although obviously the Civil War was front of mind when Congress was enacting Section 3 of the 14th Amendment, the sponsors repeatedly said that this applies to all insurrections. There had been insurrections against the United States before the Civil War. You may have learned in American history about Shay’s Rebellion also called Shay’s Insurrection or the Whiskey Insurrection and these were actually about the same size as January 6th. They were loosely organized, they weren’t you know, the people marching in formation and uniforms, they had comparable numbers of fatalities to January 6th but what’s most important about January 6th unlike the Whiskey Insurrection, unlike Shay’s Insurrection and arguably unlike the Civil War is that January 6th was a violent attack on the U.S. Capitol, which is certainly farther than the Confederacy ever got with the intent of stopping the peaceful transfer of power, which succeeded at doing if only temporarily and came close to assassinating the vice president of the United States and under any definition of insurrection that the people who enacted the 14 Amendment would have used January 6th qualifies as an insurrection.

J. Craig Williams: Ron, we are going to take a quick break to hear from a word from our sponsors, we’ll be right back.

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J. Craig Williams: And welcome back to Lawyer 2 Lawyer. I’m joined by Ron Fein. He is the legal director for the Free Speech For People. We’ve been talking about the third section of the 14th Amendment. Ron, you have a campaign going on called 14.3., can you tell us about that?

Ron Fein: Yeah, there are two ways that we are seeking to enforce Section 3 of the 14th Amendment. and I should say that there are many ways that it can be enforced but these are the two tracks that we are pursuing. First, we are calling on secretaries of state or depending on the particular state, it might not be the secretary of state, but some other elections, board or other chief elections official, to exercise the powers that they have under state law to exclude ineligible candidates from the ballot to apply that to Donald Trump.

(00:15:00)

This actually happens all the time. It’s usually not as high profile, but there are many cases where someone who’s you know not old enough to run for president or who’s not a natural born citizen nonetheless you know files paperwork to run for president and these state officials ruled, that “No, you’re not eligible, you can’t appear on the ballot,” interestingly enough none other than the Supreme Court Justice Neil Gorsuch back when he was a court of appeals judge upheld this practice and said this is something that state secretaries of state or other chief election officials absolutely can do.

So back in 2021, we sent letters to the chief election officials of all 50 states plus the District of Columbia laying out the case for why Trump was disqualified under Section 3 of the 14th Amendment. Since then, we’ve renewed that call with more focused outreach towards a particular secretaries and chief election officials but really it’s the mandate of the Constitution that applies to all of them because these election officials have themselves taken an oath to support the Constitution and even if they didn’t realize it at the time Section 3 of the 14th amendment has been a part of the Constitution for all this time. That’s the first track. The second track is that most states provide a procedure by which voters can file a formal legal challenge to a candidate eligibility for office the structure of that type of challenge, the timetable is different in every state but most states provide some legal challenge opportunity like that and in multiple states, we are representing voters who will be challenging Trump’s eligibility to appear on the ballot.

J. Craig Williams: Let’s talk about this self-executing aspect of this you know, it’s pretty easy to determine whether a person is 35 years old and is eligible to run as president that is an objective determination. Seemingly as easy to determine there’s been an insurrection, but it’s still subjective, how is it that that these state election officials are going to make this determination and who gets to challenge it and in what form if the decision doesn’t go the way that you’re asking it to go?

Ron Fein: Well first of all, I wouldn’t say it’s subjective. I would say that it might be harder than determining age but just because something is hard doesn’t mean that the Constitution doesn’t require it. There’s a question of fact and applying fact to law but the legal terms involves insurrection, what does it mean to engage? Those all have definitions and so someone who has the authority to make this determination has to apply the law to the facts. That’s what courts do, that’s what government officials do every day in some cases with legal questions that are much harder than this one.

So the way this would play out to separate those two tracks I spoke of earlier is, if let’s say a secretary of state is in the particular state is the one who makes this determination we have actually provided them with a model declaration that they could use that lays out the facts and the law and provides why Trump is disqualified. If they issue that declaration and announced that they’re refusing to include Trump on the ballot in some states, there’s a path first in state law specifically for the excluded candidate to challenge the secretary’s decision but certainly in any case Trump could go to Federal Court as those candidates I mentioned before like, in the case involving the Neil Gorsuch as the judge not as a candidate and he could challenge that decision and he has every right to have his day in court to challenge that type of decision.

On the other hand, if we’re talking about the second track where it’s a formal legal challenge that we filed, those are set up differently in every state. In some states that type of challenge occurs directly in court, in some states that’s before a State Board of Elections which hold the hearing, which could then be appealed to court and so on. So, in every instance there will be an opportunity for a neutral judicial decision maker to either be the first one to answer the question or to review it on appeal but the key point is, this is maybe more factually complex certainly more high-profile than previous cases but it fits into the general pattern of candidate eligibility challenges and determinations by the state entities that are empowered to make those decisions.

J. Craig Williams: Now there are some conservatives who would certainly whitewash your efforts and say this is just a liberal plot to take over the world but you’ve got to pretty conservative professors on your side.

Ron Fein: That’s right so recently Professors William Baude and Michael Stokes Paulsen who are both extremely conservative involved with the Federalist society and I would say really sterling conservative credentials issued a groundbreaking law review article.

(00:20:14)

It’s a good read even for non-lawyers and it sets out the case from an originalist perspective, which I think in this case is certainly appropriate that Section 3 of the 14th Amendment it may look like it has big implications and that’s exactly because it was written and intended to have big implications and so that helps demonstrate that this is not a partisan issue application of the Constitution should never be a Partisan issue. This is a neutral constitutional principle. Section 3 of the 14th Amendment is just as much a part of the Constitution as anything else and applying the Constitution should never be seen as a partisan or inappropriate action because the Constitution is what binds us as a country.

J. Craig Williams: So if you perceive along these lines and you lose and Trump gets elected to office, does Congress then have the power to impeach under Section 3?

Ron Fein: Congress certainly could arguably they already did and of course a majority believed 57 in the Senate voted to convict although that conviction requires two-thirds majority in the Senate. What was interesting is that of the senators who voted essentially not guilty in Trump’s impeachment proceeding, many of them said that it was a jurisdictional decision that they felt they couldn’t vote guilty in an impeachment trial because he wasn’t in office at the time and that might not apply in a second impeachment while he’s in office. But I think everyone would agree that the best time to resolve this is now before primaries and before the general election and certainly before the inauguration of whoever the next president is and so that’s why we will be prepared to file challenges in the near future to Trump’s eligibility again in multiple states using these candidate eligibility challenge processes.

J. Craig Williams: Ron, it’s time for us to take another quick break to hear a word from our sponsors. We’ll be right back. And welcome back to Lawyer 2 Lawyer. I’m back with Ron Fein. We’ve been talking about 14th Amendment Section 3. Ron, your organization I believe has already mounted two challenges, one, the representative Matthew Cawthorn and the other one to Marjorie Greene. The one Cawthorn became moot because he lost the election but what happened with Marjorie Green?

Ron Fein: What was interesting about both of those challenges is that we actually set important legal precedent that helps us in these cases against Trump. For non-lawyers they might look and say precedent but you didn’t manage to get either one of them disqualified but lawyers certainly understand that the actual nature of a judicial decision or a series of decisions can set good legal groundwork so in the Madison Cawthorn case what happened was that he argued. So we filed a challenge before the North Carolina State Board of Elections that Cawthorn was disqualified and that’s how you do it in North Carolina and he went to Federal Court and sought and obtained an injunction against the North Carolina State Board of Elections on the basis that supposedly an 1872 congressional amnesty for ex-confederates actually applied for all time to future insurrections including January 6th, including Madison Cawthorn and a federal district court actually believed that and granted a preliminary injunction. We appealed that to the U.S. Court of Appeals for the fourth circuit which resounded reversed it and said no, the 1872 amnesty did not apply to insurrections that hadn’t happened yet but by that time Madison Cawthorn had lost his primary, but we’ve still got that fourth circuit precedent so if Trump tries to raise that same argument, we now have a good appellate precedent.

In the case of Marjorie Taylor Greene she tried to block the state process in Georgia. That was a filing that was heard by a Georgia judge. She ran to Federal Court to try and stop it. She didn’t succeed in stopping it in Federal Court and the federal judge rejected all of her arguments so we’ve got a good decision there. The state judge that heard the challenge to Marjorie Taylor Greene’s candidacy lead down some important precedent even as he ultimately ruled against us on the facts and the precedent that he laid down is applicable to Trump and it’s about things like, what does it mean to engage in insurrection? What is the legal definition of engage, what’s required? What’s not required and so his opinion is actually quite useful in challenges against Trump.

(00:25:04)

That New Mexico case that we talked about actually relied in part on the Georgia opinion and even though in the end the judge said Marjorie Taylor Greene personally there isn’t sufficient evidence that she engaged in insurrection. His decision actually laid out useful building blocks for us in the legal case against Trump.

J. Craig Williams: It seems though you’ve established that insurrection existed and the New Mexico decision convicted that gentleman on participating in January 6th insurrection so isn’t that sufficient person enough?

Ron Fein: These are all valuable precedence so I think that there are really two issues that we need to prove in the in the trials against Trump. One, is that January 6th constituted an insurrection. Now I’m going to say no serious person disputes this. I will admit that you know, there will be some unserious people who dispute it and it is an element of proof of our case so we’re going to need to go through it and establish it to the satisfaction of the decision-maker and then the second element that we really need to prove is that Trump himself engaged in that insurrection and of course much of that is based on publicly available information that was known if not that day. Then you know immediately afterwards and that’s really the bulk of the case where the rubber meets the road and so that’s what we’re prepared to prove before these decision-making bodies.

J. Craig Williams: If Trump is convicted in the Georgia case of participating in the insurrection, is that an automatic disqualification?

Ron Fein: So the interesting thing is that the criminal justice system is totally different and doesn’t really intersect with Section 3 of the 14th Amendment. The criminal justice system is designed to inflict criminal punishment. Section 3 of the 14th Amendment is designed to keep people out of office and that’s not a punishment anymore than Arnold Schwarzenegger is being punished because he can’t run for president because he wasn’t born in the U.S. or that Taylor Swift is being punished she can’t run for president cause she’s not old enough so in the various trials that Trump is facing, two of which do involve his actions leading up to January 6th. Of course, if he is convicted he’s going to face criminal punishments but the outcome of those criminal trials doesn’t actually thereon question under Section 3 one way or the other.

J. Craig Williams: Could Trump still take office if he was convicted?

Ron Fein: It’s an interesting scenario to think of but there is no constitutional barrier to someone who has been convicted of crimes from taking the presidency. In fact, there’s no constitutional reason why somebody who was currently incarcerated couldn’t become president, although it would be extraordinarily inconvenient so that’s one of the reasons why we’ve been pointing to Section 3 of the 14th Amendment because that is the provision in the Constitution that says that Donald Trump cannot hold public office.

J. Craig Williams: Right well if I remember my history correctly, Congressman Dan Flood from Pennsylvania was in jail when he was serving in the United States Congress.

Ron Fein: I don’t know that particular example but there have been other examples of officials in various levels of government to refused to resign and yeah and served part of their term in prison and in a more dignified era perhaps something like that would have led to resignation. I think in a more dignified era perhaps upon being indicted and charged in even one criminal prosecution Trump would have dropped out of the race but nothing in the law required him to do so and certainly Section 3 of the 14th Amendment is the only part of the Constitution that says that he can’t return to office.

J. Craig Williams: Right well Ron it looks like we just about reached the end of our program so it’s time to wrap up and get your final thoughts and your contact information so our listeners can reach out to you if you would like to get involved in your campaign.

Ron Fein: Well thank you for that opportunity, Craig. I think it’s important for people to come together and realize that this is not a partisan effort. This is not about trying to help or hinder particular candidates or parties but rather to enforce a provision of the Constitution that our predecessors left for us with a sign that says in case of emergency break glass because they knew that anyone who had broken an oath to the Constitution and engaged in insurrection if allowed back into power, would do it again or worse and that’s why it’s so important that we enforce Section 3 of the 14th Amendment. Our website is www.freespeechforpeople.org.  We also have a special site set up called trumpisdisqualified.org where people can learn more about this and we would love it if people would check those out.

(00:30:12)

J. Craig Williams: Great. Well Ron, thank you very much. It’s been a pleasure having you on our program today.

Ron Fein: Thank you for having me on.

J. Craig Williams: Well here are a few of my thoughts about today’s topic. I think I’m going to volunteer for Ron’s effort just as a full disclosure, I fully believe that former president Trump is disqualified from running again for his participation in the January 6th Insurrection seems to be a self-fulfilling prophecy, but apparently there’s a number of people who disagree. In any event if you want to get involved go to Ron’s website and sign up and sign the petitions and let your local officials know that you agree and if you disagree don’t do anything. Well if you like what you heard today please rate us on Apple Podcast your favorite podcasting app. You can also visit us the legaltalknetwork.com where you can sign up for our newsletter. I’m Craig Williams, thanks for listening. Please join us next time for another great legal topic. Remember when you want legal think Lawyer 2 Lawyer.

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