The Disqualification of Donald Trump and Other Legal Urban Legends

Below is a slightly expanded version of my column in The Hill on the increasingly popular theory that former president Donald Trump is already barred from office under the 14th Amendment. It is a theory that, in my view, has a political appeal that outstrips its constitutional support. In a constitution designed to protect free speech and prevent the concentration of power, this theory would allow for the banning of candidates based on fluid definitions of aiding and abetting insurrection. Such ballot cleansing is common in countries like Iran where citizens await to learn which opposition candidates will be allowed to run. While we are thankfully far from the authoritarianism of these other countries, the implications of this theory for our constitutional system are still chilling.

Here is the column:

The popularity of urban legends is a testament to the will to believe. The desire of people to keep Elvis alive or prove that a Sasquatch could exist furtively in our backyards shows the resilience of fables.

Constitutional urban legends often have an even more immediate appeal and tend to arise out of the desperation of divided times. One of the most popular today is that former President Donald Trump can be barred from office, even if he is not convicted in any of the four indictments he faces, under a long-dormant clause of the 14th Amendment.

This 14th Amendment theory is something that good liberals will read to their children at night. It goes something like this: Donald Trump can never be president again, because the 14th Amendment bars those who previously took federal oaths from assuming office if they engaged in insurrection or rebellion. With that, and a kiss on the forehead, a progressive’s child can sleep peacefully through the night.

But don’t look under the bed. For as scary as it might sound to some, Trump can indeed take office if he is elected…even if he is convicted. Indeed, he can serve as president even in the unlikely scenario that he is sentenced to jail.

Democrats have long pushed this theory about the 14th Amendment as a way of disqualifying not only Trump but also dozens of Republican members of Congress. For some, it is the ultimate Hail Mary pass if four indictments, roughly 100 criminal charges and more than a dozen opposing candidates fail to get the job done.

I have strongly rejected this interpretation for years, so it is too late to pretend that I view this as a plausible argument. However, some serious and smart people take an equally strong position in support of the theory. Indeed, conservative scholars William Baude and Michael Stokes Paulsen have argued for the interpretation and insist in a recent law review article that “the case is not even close. All who are committed to the Constitution should take note and say so.”

But some of us like to believe that we are committed to the Constitution and, for that same reason, we say no.

While I have great respect for these academics, I simply fail to see how the text, history or purpose of the 14th Amendment even remotely favors this view. Despite the extensive research of Baude and Paulsen, their analysis ends where it began: Was January 6 an insurrection or rebellion?

I have previously addressed the constitutional basis for this claim. It is, in my view, wildly out of sync with the purpose of the amendment, which followed an actual rebellion, the Civil War.

Democrats have previously sought to block certification of Republican presidents and Democratic lawyers have challenged elections, including on totally unsupported claims of machines flipping the results. If we are to suddenly convert the 14th Amendment into a running barrier to those who seek to challenge election results, then we have to establish a bright line to distinguish such cases.

The 14th Amendment bars those who took the oath and then “engaged in insurrection or rebellion against the same.” It then adds that that disqualification can extend to those who have “given aid or comfort to the enemies thereof.” According to these experts, Jan. 6 was an “insurrection” and Trump gave “aid and comfort” to those who engaged in it by spreading election fraud claims and not immediately denouncing the violence.

But even the view that it was an “insurrection” is by no means a consensus. Polls have shown that most of the public view Jan. 6 for what it was: a protest that became a riot. One year after the riot, CBS News mostly downplayed and ignored the result of its own poll showing that 76 percent viewed it for what it was, as a “protest gone too far.” The view that it was an actual “insurrection” was far less settled, with almost half rejecting the claim, a division breaking along partisan lines.

The theory that this was a rebellion or insurrection has always been highly contested. On Jan. 6, I was contributing to the coverage and denounced Trump’s speech while he was still giving it. But as the protest increased in size, some of us noted that we had never seen such a comparatively light level of security precautions, given the weeks of coverage anticipating the protest. We then watched as thinly deployed police barriers were overrun and a riot ensued. It was appalling, and most of us denounced it as it was unfolding.

Trump waited to speak, despite criticism from many of us. We now know that many aides called for him to call upon his supporters to pull back, but he waited for a couple hours.

Sulking in the Oval Office does not make Trump a seditionist. Indeed, despite formal articles of the second impeachment and years of experts insisting that Trump was guilty of incitement and insurrection, Special Counsel Jack Smith notably did not charge him with any such crime.

The reason is obvious. The evidence and constitutional standards would not have supported a charge of incitement or insurrection.

Yet these experts still believe that Trump can be barred from office without any such charge even being brought, let alone a conviction. Just judicial fiat that certain challenges were made in bad faith or were rebellious in character.

There is no limiting principle to avoid a slippery slope of partisan disqualifications. Would Trump not be disqualified if he had called for his supporters to withdraw an hour earlier?

Would it have been disqualifying if the security was stronger (as suggested days earlier) and there was no entry into the Capitol?

Putting aside the lack of evidence, there is a lack of logic to these claims. A relatively small number of individuals have been charged with seditious conspiracy, a widely misrepresented charge that can amount to as little as preventing the execution of any law (as opposed to outright rebellion or insurrection).

If Trump supported a rebellion or insurrection, what was the plan? Not only did Smith not charge him with any such crime, but there was little evidence that even the most radical defendants charged were planning to overthrow the nation’s government or were part of a broader conspiracy. There were no troops standing by, no plan for a post-democratic takeover by Trump or his alleged minions. The courts had already ruled against the President and would likely continue to do so. Many congressional Republicans had already joined Democrats in supporting certification and would continue to do so.  Military leaders had already said that they would support the transition and would continue to do so.

Trump was clearly not willing to concede. According to some witnesses, there was a despondent and defiant president who may have gotten satisfaction from the chaos in Congress. Yet, even halting the certification, would not stop the certification or result in the seizure of the government.

That leaves us with the argument that any effort to stop a constitutional process is akin to an insurrection or rebellion under the 14th Amendment. If that were the standard, any protests — including the anti-Trump protests and the certification challenges to electoral votes in 2016 — could also be cited as disqualifying. If that were the case, figures such as Rep. Jamie Raskin (D., Md) could be summarily purged from office for having sought to overturn an election.

We would be left on a slippery slope, as partisan judges and members would seek to block opposing candidates from ballots, all supposedly in the name of protecting democracy.

There is a simpler and more obvious explanation for what occurred on Jan. 6, 2021: A political protest became a political riot, and a constitutional theory became constitutional legend.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University.

224 thoughts on “The Disqualification of Donald Trump and Other Legal Urban Legends”

  1. Fraudulent Elections, how does one go about challenging results when the parties who control the elections will not allow an audit of the results? When voting is allowed regardless registration, identification, haphazard tabulation, and challenges are swatted away by judges, how can there be trust in the results. Oh: you must trust the results posted by partisans who control the results (regardless of party affiliation) [Yea Right]. The last two elections have gone beyond the boundaries of trust and have made our current election process the laughingstock of the absurd.

    Insurrection by definition of Black’s Law Dictionary 2nd Ed. “Insurrection shall consist in any combined resistance to the lawful authority of the state, with intent to the denial thereof, when the same is manifested, or intended to e manifested, by acts of violence”. Code Ga. 1882.

    Following is a need to define Insurgent also from Black’s: “One who participates in an insurrection; one who opposes the execution of law by force of arms, or who rises in revolt against the constituted authorities. A distinction is often taken between “insurgent” and “rebel”, in this: that the former term is not necessarily to be taken in a bad sense, inasmuch as an insurrection, though extralegal, may be just and timely in itself; as where it is undertaken for the overthrow of tyranny or the reform of gross abuses.”

    Kurt Lewin “Lewin’s Equation” postulates on a possible explanation for the behavior of insurgent: what is their motivation, opportunity (risk/reward and the efforts necessary), overcoming physical and environmental problems, but looks primarily at the person objectives. The theory also notes that the majority of rebellious belong to the upper and middle class having strong political and or religious grievances, but and this is big but, they do not take up arms.

    Next, we could consider David Kilcullen’s theory of an “Accidental Guerilla” or the adage ‘opportunity makes the thief’: there is no need to describe these points there self-explanatory.

    With these simple examples I question did President Trump incite, or did those that endeavored to make their point take it upon themselves that they did not believe the elections were legitimate? Additionally, can anyone rightly say that those entering the Capital were rebellious or insurrectionist or just citizens who were caught up in the moment?

    1. The “parties who control elections” are the Secretaries of State–in 2020, 26 of whom were Republicans, like Brad Raffensberger of Georgia. Name a single instance in which an “audit” was denied. You can’t. What Secretaries of State cannot do is allow Trump allies to go through ballots and tie them to voter registrations in order to identify people–there is a right to privacy, but they still tried to do this–they actually showed up at people’s houses and demanded to know who they voted for. And, what would be the basis for any more “audits”, recounts, re-recounts–other than Trump’s ego? He made up lies about dead people voting, fraudulent ballots, tabulating machines changing the results and all of the other lies claiming fraud, and began spewing the lie that the election would be “rigged” even before Election Day. Trump was predicted to lose by every single poll. He did a terrible job as President–our economy, public health and relations with allies were in shambles. How could any reasonable person believe that he still could have “won”?

      1. Having lived in New Mexico throughout periods of my life I can attest that it is bastion of leftist ideology. All government controls are in the hands of the democrat party. Dare not to confront or you may forsake yourself!

  2. Trump authorized, in the previous day or two, ten thousand national guard to be used for security at the Capitol during the protest. Pelosi and Milley delayed by many hours the use of any troops, until long after the protest turned into a riot.
    Trump’s authorization makes for a very puzzling insurrection, where the person intending to take over the government tries to fill the space with soldiers who would prevent an insurrection.
    Pelosi’s and Milley’s malfeasance in defense were clearly intended to make the protest as violent as possible, for political gain afterward.

    1. Geezer, you are right about what Trump suggested, at least according to some of those present. You are also right that Pelosi did not authorise the use of the national guard prior to the breach of the Capitol, despite Sund’s requests in the days before January 6. Whether this was motivated by a desire to permit a violent breach for political advantage is hard to know. The reason given was “optics.”

    2. Geezer: According to Snopes, this is false:

      “Pelosi did not prevent the National Guard from responding to the attack on the Capitol. Pelosi does not have direct control of the National Guard.

      Jane L. Campbell, president and CEO of the U.S. Capitol Historical Society, told CNN: “The Speaker of the House does not oversee security of the U.S. Capitol, nor does this official oversee the Capitol Police Board.”

      There are still some questions as to why Capitol Police appeared ill-prepared for the attack and why the National Guard’s response was delayed. We looked more into those questions here. Generally speaking, however, the National Guard in Washington, D.C., reports to the president of the United States. Neither the speaker of the House (Pelosi), nor the minority leader of the Senate (Mitch McConnell), has control of the National Guard.

      The D.C. National Guard writes on its websites (emphasis ours):

      Today’s D.C. National Guard remains strong with more than 2,700 Soldiers and Airmen available to execute its missions. D.C. National Guard Soldiers and Airmen resides within the District of Columbia, Maryland and Virginia, and are proud to be from the communities in which we protect and serve.

      The D.C National Guard was formed in 1802 by President Thomas Jefferson to defend the newly created District of Columbia. As such, the Commanding General of the D.C. National Guard is subordinate solely to the President of the United States. This authority to activate the D.C. National Guard has been delegated, by the President, to the Secretary of Defense and further delegated to the Secretary of the Army. The D.C. National Guard is the only National Guard unit, out of all of the 54 states and territories, which reports only to the President.

      The D.C. National Guard provides mission-ready personnel and units for active duty in the armed services in the time of war or national emergency. The D.C. National Guard also retains the mission as protector of the District of Columbia.”

      There wouldn’t have been any violence on Jan 6th if Trump hadn’t lied about losing, hadn’t gone on “Stop the Steal” rallies and lied to his followers.

      1. If Snoopes is your source, then you have already lost the argument.
        They have been debunked as a biased far left-wing hacks.

        1. Nutchachacha, gee-gee, and Snoops are ill-adjusted, covetous (Thou Shalt Not Covet) and thieving (Thou Shalt Not Steal), ignored-by-daddy, attention-seeking, psychotic, anarchist, communist minions and government-dependent delivery boys.

          Like Obama, the only thing they could accomplish in life, or attempt to, was suckling at the government teat and “community organizing.”

      2. Pelosi does not have direct control of the National Guard.

        Since you felt the need to include this, I know you have zero knowledge of the facts. Pelosi does not control the NG

        She was in fact in control of security at the Capital. Or more precisely. Those in control of Capital security answered to Pelosi. Pelosi’s approval was an unwritten rule.

        1.’s not ‘ludicrous’ Anonymous.. why not do the research on the responsibilities of the Speaker before you make your ridiculous spin…

        2. She is the “boss” of the Capitol police Cheif via the Sargeant at arms, in terms of this day. Obfuscate if you want. Lie if you must. Nobody said she was in charge of the National Guard, Red Herring. The NG commander was ready ansd willing. Pelosi said NO. End of story.

      3. There is nothing anywhere to suggest that this is not true. The Chief of the Capitol Hill Police says you and Snopes are lying.

      4. “The D.C. National Guard writes on its websites (emphasis ours)”

        Emphasis whose, ya big fat liar??
        Another cut and paste from the infamously lazy reporter Gigi.

        Cut and pasted from some left wing rag, no doubt.

        First of all, just how many “websites” does the dc guard have.

        Secondly, by actually going to their website, it took me 30 seconds to find this:

        Additionally, at the request of the MAYOR OF THE DISTRICT OF COLUMBIA and at the approval of the Secretary of the Army, the D.C. National Guard forms the Joint Task Force to support both federal and local law enforcement, emergency response and emergency management agencies

        Emphasis mine, for the sake of the brain dead.

        Being misinformed is your right. Being too lazy to find the truth for yourself and repeating that filth her makes you a LIAR

        Why dont you go read the capitol police chief’s account of that day (you know, someone who was actually there) and come back here and tell us all what you learned.

      1. “No Pentagon officials deliberately held off on sending the National Guard to the U.S. Capitol during the attacks of Jan. 6, 2021, the House committee investigating the insurrection said in its final report. Rather, it said conflicting messages caused a delay.”

        Bill, you must start reading the raw documents because you have been wrong about almost everything. The raw documents contemporaneously state the truth as seen at the time everything occurred. J6 was a Hollywood production that started with an erroneous conclusion that didn’t fit the raw facts. That is why so much was left out of the J6 interviews, and much of it was presented on tape where things could be spliced and discarded.

        J6 rules were to exclude testimony from the 3 most important people, Sund, the head of the Capitol Police, the Sergeant at Arms, and Nancy Pelosi, who was the final authority. There is documentation that there was concern over the optics of bringing in the troops, and intel was withheld from Sund.

        Don’t believe me and instead listen to Sund’s interview and then look at the transcripts. TDS has destroyed many brains, don’t let it destroy yours.

  3. Jonathan
    I bet your classrom is a disgusting, untidy mess, with McDonalds wrappers strewn hither and yon. Left is moderate and right is fascism and you should know that. Too busy counting all that money that Fox is paying you no doubt (you’ve probably bought 2 huge houses in Delaware with all that cash). Sure, the D wants to pack the Supreme Court, add 4 Dem senators, and abolish the filibuster, but its the R’s who have a thirst for power. I am so mad that the Constitution doesn’t seek to invade every single aspect of my everyday life. Also, why can’t we just make customs into laws? I know I sound completely ctynical and unhinged, but its really you that is.
    Trump Trum Trump Trump Trump Trump Trump Trump Trump Trump

    Theres a red under my bed
    And there’s a little orange man in my head
    And he said, “you’re not going crazy, you’re just a bit sad”
    “‘Cause there’s a man in ya, gnawing ya, tearing ya into two”

    My expert lawyer spidey sense tells me that the next charge coming from Smith is Insurrection and rebellion, because he did “more than enough” to be considered to have.
    I don’t know why I even come to this site because I think you’re a hack and a traitor, and I disapprove of everything you have to say. I guess hold out hope that anyone here beside Dennis wants to read my drivel.


  4. On Jan 7, I would have gone after Trump, Pelosi and all others with the power, for not protecting the capital with troops ahead of time.

    First they failed to protect the capital and then they failed to defend the capital as evident by only 1 death.

  5. The question of Trump’s name appearing on a Ballot ‘Post-Conviction’ will be determined by the County’s ‘Board of Elections’ in most cases.

    The County’s – Board of Elections typically have a:
    Deputy Director,
    Board Members, (Number of Members vary)
    Vice Chair

    Depending on the Size of the Population and Area (Major City to Township) this will vary.
    All will Approve a Final “Ballot” Design for an Election.

    This is where the contention that:
    1. Similar to that of County Sheriff’s taking a Stand (*see references as to Sheriff reactions to Gun Laws below), a County’s Board of Elections may see to it that Trump is a valid candidate and place his name on the Ballot. (defying any superior-superseding law)

    2. Opponents will hold that Trump (Post Conviction) is ineligible to be listed on the Election Ballot as per the 14th Amendment or other Theory of Law (perhaps State & Local Laws).

    Thus the debacle is set for an Election to be a Mix-N-Match of Ballot’s designed; With or Without Trump’s name on them, across the Country.
    A fiasco waiting to happen.
    Given the nature of the Democratic Party, they will push the ‘false narrative’ of Trump’s ineligibility as a viable Candidate to the maximum.
    There is sure to be conflict and contest.

    At least 13 county sheriffs in Washington refuse to enforce new gun law
    By: Owen Daugherty – February 11th, 2019

    North Carolina County Sheriff Says He Will Refuse to Enforce ‘Unconstitutional’ Gun Laws
    By: Zachary Evans ~ January 17th, 2020

  6. Just how far can Turley jump the shark, well, at this rate, he’s going all in. And making himself a laughing stock in the legal profession, and world opinion. Sad, just sad…….

    1. Only in your mind.
      Most of the legal profession, those who are not afflicted with TDS, see him as a reasonable Democrat and sane person.

        1. No more so than Fishwings and his assertion the good professor is a laughing stock.
          Then again, as the good professor notes, this column was featured in The Hill. Other news outlets that seek out the good professor are USA Today, the NY Post, The Messenger, and Fox News.
          The good professor also has speaking engagements through out the US and has given testimony before Congress on more than a few occasions.
          Then there is the popularity of his blog.
          So, with that body of evidence, yes.

    2. Thank you so much Fishlips, for giving us your opinion for the two thousand, seven hundred and seventy second time. May I suggest you could save yourself keystrokes by just saying “same as yesterday”.
      Of course, it could be that you wax so eloquent in hopes of attaining your own professorship and paid legal analyst position.

      1. My opinion is not written for the deplorables. My comments are to others that know just how delusional the Trump cult is. And Turley feeding the rage is not helpful.

          1. The extremists are the ones who back Trump, who said our war dead were suckers and losers. The extremists who still back Trump after his lies and misinformation that caused 500.000 Americans to die. Who stood in front of the world and got laughed at, and also stood next to Putin and told the world he believed Putin over our experts. The so-called Americans who still will vote for a man who said he would terminate the constitution.

              1. Governor Cuomo was more responsible for those deaths than Trump. Cuomo sent thousands of infected senior citizens from hospitals back to nursing homes to infect those there.
                Our experts? Really?

            1. “The extremists who still back Trump after his lies and misinformation that caused 500.000 Americans to die.”

              That is an utterly insane and psychopathic lie. No sane person could possibly believe that Trump made the virus virulent. But you do.

        1. Fish You just don’t get it do you. Now quit playing with that biased brain, and put it back in.

  7. “I have strongly rejected this interpretation for years, so it is too late to pretend that I view this as a plausible argument. However, some serious and smart people take an equally strong position in support of the theory. Indeed, conservative scholars William Baude and Michael Stokes Paulsen have argued for the interpretation and insist in a recent law review article that “the case is not even close. All who are committed to the Constitution should take note and say so.”
    Is there anyone alive and over the age of 18 who still believes that academics only write what they believe to be true? More likely they write something controversial to be noticed (as they say “if you’re not talented you’d better be outrageous.”). Ego abounds in every profession but law professors (with present company excluded) seem to have a monopoly on the worst kind. There is nothing rational about this positon except the rationale to “write or die” and get grant money to fund some inane research.

    Here’s the pertinent clause 3 of the 14th Amendment:

    “Section 3.
    No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.”

    No insurrection, no rebellion and thus no case. These guys should know better. Our country is facing the largest constitutional (and otherwise) crisis of its history and they want to do the very unlawerlylike thing in throwing gas on the fire.

    This little legal hellraising reminds of the genius of Alexis de Tocqueville when he wrote:

    “The more we reflect upon all that occurs in the United States the more we shall be persuaded that the lawyers, as a body, form the most powerful, if not the only, counterpoise to the democratic element. In that country we easily perceive how the legal profession is qualified by its attributes, and even by its faults, to neutralize the vices inherent in popular government. When the American people are intoxicated by passion or carried away by the impetuosity of their ideas, they are checked and stopped by the almost invisible influence of their legal counselors. These secretly oppose their aristocratic propensities to the nation’s democratic instincts, their superstitious attachment to what is old to its love of novelty, their narrow views to its immense designs, and their habitual procrastination to its ardent impatience.” (Ch. XIV, Democracy in America)

    Amen, brother. You know us better than we know ourselves and yes lawyers like Baude and Stokes ought to know better.

  8. There are several issues here.

    First, is Section 3 self-executing, in that a person who violates his oath by engaging in insurrection or rebellion against the US or by giving aid and comfort to those who do is disqualified from holding office without regard to a judicial or congressional determination? I think there is a strong textual argument that it is, despite the Chase decision in In re Griffin holding otherwise. But as discussed below the consequences could be dire.

    Second, did Trump engage in the conduct that would disqualify him from office. So far there is virtually no evidence that he did. The riot on January 6 was not an insurrection or rebellion within the meaning of Section 3, in my view. Even if it were, Trump had no involvement in it. And his challenges to the recorded results of the election, which have led to two criminal indictments that don’t charge insurrection or even seditious conspiracy, were hardly insurrection or rebellion themselves.

    There are several ways this theory could be made operational, and these are highly problematic:

    1. State authorities could bar Trump from the ballot or not bar him, and either could be challenged in court;

    2. Votes for Trump could be considered invalid and not counted or considered valid and counted, and either could be challenged in court;

    3. Trump electors could be disqualified by states or allowed by states, and either could be challenged in court;

    4. Congress could not count the votes of Trump electors or could count them, and either could be challenged in court; and

    5. Congress’s determination that Trump was elected President could be challenged in court.

    I suppose there are other possibilities too. For example, the military and other national security agencies could decide that Trump wasn’t President even if Congress said he was. The same could be decided by the rest of the federal bureaucracy and by state authorities. And by the population at large. I suppose these determinations also would be decided in court.

    If you conclude that Section 3 is “self-executing,” is there any limit to how it can be made operational and by whom? This seems like a recipe for chaos.

    At some point the potentially dangerous consequences of a particular interpretation of a Constitutional provision that has been dormant for 150 years should argue against it, notwithstanding textual arguments in its favour.

    1. Daniel:
      The reason Chief Justice Chase was right and Sec. ok 3 isn’t self-executing is that somebody has to define terms: What’s an “oath”? What’s an “insurrection or rebellion.”? And what’s “engaging” for that matter? Those are judicial interpretations and only SCOTUS can do that since John Marshall got all “inky” in Marbury v. Madison. I agree with the rest of your fine comment.

    2. Daniel,
      In your opinion, would states seek to keep Trump off the ballot or electors be disqualified?
      And would the military and national security agencies decide Trump was not president despite not only Congress but a ruling by the SC?
      I find those ideas rather disturbing.

      1. I think states are more likely to try and keep Trump off the ballot than to disqualify his electors.

        If the national security apparatus defied a congressional determination that Trump had been elected it’s hard to know what else they might do. It would be a step further to defy the Supreme Court. I think it very unlikely they would do either.

        But once you abandon the notion of a prior judicial or congressional determination of association with insurrection or rebellion within the meaning of Section 3, then seemingly anyone is free to take his own view, subject to a later judicial determination if that view is challenged. It’s a recipe for chaos.

        1. Daniel,
          Thank you for your response.
          Recipe for chaos indeed.

          Invest in chickens and PMs.

        2. “If the national security apparatus defied a congressional determination that Trump had been elected it’s hard to know what else they might do.”

          Daniel, that type of statement from an intelligent person like you should scare all Americans, but it doesn’t. That tells us how far down the road to authoritarianism we have gone.

          “I think states are more likely to try and keep Trump off the ballot than to disqualify his electors.”

          Doesn’t Congress have a role, and can’t Congress deny a state’s electoral votes under certain circumstances? Wouldn’t this be such a circumstance?

      2. Trump can’t be on the ballot. Only the electors are being elected. The only way to disqualify Trump would be to disqualify the electors, but they can’t be disqualified if they don’t pledge to vote for Trump.

  9. FYI: You can’t argue with such rabid partisans as Turley and the bulk of he commentators on this page. They will always cherry pick spout lies to argue what they want. Truth and reality has not meaning to them.

  10. It is not just about Jan 6, it is about the entire effort to illegally remain in office. Trump did the first attempted coup in US history and that absolutely fits into the disqualification part of the 14A.

    1. “Trump did the first attempted coup in US history and that absolutely fits into the disqualification part of the 14A.”

      I don’t see the word “coup” in the text.

      The remedy under the 14th is simple. Charge Trump with insurrection and convict him. Otherwise, the left should stop lawyering.

      1. Tom,
        Good point.
        If it were a insurrection, or a coup, why have they not lobbed those charges at Trump?
        They know it would likely fail in court.
        Better to keep it in the court of public opinion to do the damage and inflate the “Two Minutes of Hate,” and rage.

        1. All a State Secretary of State, has to do is declare a candidate was part of an insurrection. Biden was part of the brain trust that led to the spying on Trumps campaign, Transition, and Presidency. A true insurrection.

        2. The 14th Amendment does not require a conviction. Where do you see that requirement?

          Where did I say that it did?

          But words either mean something or they don’t. This one must be on the spectrum, too.

          Too easy.

    2. Sammy, I think the first coup was when Obama, Hilary, Biden and the intelligence agencies went after Trump with lies, wire taps, spies and any attack they could muster.

      Or maybe the first coup was when the FBI gave WAPO reporters dirt on Nixon.

      Or maybe the first coup was when someone took out JFK.

      Bottom line is that Trump left office when his term expired while Nixon and JFK were actually taken out of office early. So when exactly was the first coup?

      1. The first coup was when the Mob et al. took out Nixon in 1960 and ensconced the idiotic buffoon, JFK, who almost started WWIII. What a ——- incompetent, egomaniacal idiot.

    3. It was a counter-coup to the whole “Trump Colluded with the Russians®™ to Steal the 2016 Election” propaganda campaign, which qwe now know was an illegal conspiracy to undermine his presidency.

    4. You’re a moron. He didn’t attempt a “coup”. And there was a coup already in 1963, and there was an attempted coup again in 2020-21.

  11. SPOT ON, Well Said, Prof. Turley..!! ..yes… the usual overflow of Radical Left Wing / Reactionary Right Wing TROLLS will bombard your blog with nonsense arguments from inflated egos claiming to have better arguments….simply a hazard of Free Speech we must all endure……………

  12. The Fourteenth Amendment was one of three amendments Radical Republicans pushed through Congress BEFORE the seceded states returned to the Union. (Those states did not “rebel,” they left the Union,. Not So Honest Abe claimed they rebelled to justify sending US troops to force them to come back.) The amendment was not enforced because a number of former Confederates served in Congress and in the military, including Joe Wheeler, who was a two-star general during the Spanish-American War. The amendment also provides for those affected to be allowed to return to Federal office. Trump didn’t rebel nor did he lead an insurrection. Democrats forget that Donald Trump was still president on January 6. How could he rebel against himself? As January 6, by no stretch of the imagination was it a “riot? even though Democrats have tried to make it one. If they had wanted to riot, there would have been one. Granted, things may have got a little out of hand but the “rioters” weren’t armed (except by stretches of what constitutes armament) and they left the Capitol after the trigger-happy cop shot the woman and dispersed. Democrats need to wake up and see what has happened to their party since the Sixties. Some have, others need to. Keep voting for Democrats and you’re voting for Marxism.

  13. If one has not read or recently read George Orwell’s 1984, it might be something should be added to the “to do list” as he had an uncanny insight into human nature and we seem to be living in such a warped reality or rapidly heading that way. The parallels between Emanuel Goldstein and the blinding hatred of Trump are similar. The “Two Minute Hate” began on the tele screen promptly at 11:00 when the fury of the citizens was revved up against this reviled enemy of the state.

    It could be argued that Leon Trotsky was the inspiration for this fictional character as Stalin ramped up is totalitarian control during the great purges. The media has turned President Trump into a similar enemy of the state and the “two minute hate” has become perpetual and those who are infected with the disease have blinded themselves to objective truth and some, it appears, have abandoned logic and reason and have joined the crusade to take him down regardless of the costs.

    Abandoning objective, factual truth will come at great expense. Trump, in a bizarre manner, thrives on controversy and attention. If one wanted to silence him then they would ignore him, not give him any attention. I doubt that will occur as he is great for TV ratings and in doing so, the media are giving him airtime that costs him nothing.

    1. E.M.
      Well said.
      The parallels to 1984 are shocking.
      MSM continues to focus on Trump to heighten the “Two Minutes of Hate,” and rage.

    2. Of course, Trotsky was worse than Stalin, so maybe Emanuel Goldstein deserved to be cast as the bad guy.

  14. JT posted a photo with this column that has some cryptic meaning.

    Is it Bigfoot, Sasquatch, Yeti or the shape shifting Rougarou swamp creature?

  15. The final ruling on this will likely come from a citizen-jury.

    The determining factor might be the question of “would the coup attempt have happened at all, without Trump’s participation in the months leading up to the insurrection?”.

    If Trump had merely shut up and respected the rulings of more than 60 judges, would the January 6 coup attempt have happened in the first place?”. Most people know Trump stoked up his most extreme supporters, telling them outright lies, starting in November the year before.

    A citizen-jury may not buy Trump’s story on this one!

    1. The final ruling on this will likely come from a citizen-jury.

      The final ruling will come from SCOTUS. That it will not be unanimous shows the true corruption.

    2. Most people know Trump stoked up his most extreme supporters, telling them outright lies, starting in November the year before.

      Which is fully protected by the First Amendment.

      1. Most people know Trump stoked up his most extreme supporters, telling them outright lies, starting in November the year before.

        Which is fully protected by the First Amendment.

        Yep, you’re right. Which is why impeachment was the better way to go. Doesn’t have to be a crime, just has to be turning your back on the Constitution. Which Trump absolutely did to portray a fairytale that he won and was being cheated.

        He cheated the US.

        1. If you don’t think the Democrats won by cheating, you are divorced from reality. No one has ever even TRIED ti argue that he wasn’t cheated out of the Presidency. Instead, the Left always tries to change the definition of “cheating” to “manipulation of Dominion voting machines”. Well, that’s not what “cheating” means. Come back to planet earth and engage with the many ways the Democrats cheated to win in 2020.

        2. What were Trump’s lies? You must have a whole bunch so share them.

          Trump had an opinion which was substantially correct and more correct than the news you read which actually lied.

    3. If you think there was a coup attempt, you’re a moron. A coup requires control of the military and/or the media, and Trump controlled neither.

  16. This whole article is a fallacy based upon a misconception! What does it mean that a person is barred from “holding office”? Holding office has absolutely nothing to do with running for office, because you cannot run for higher office in the United States;

    [Federalist #64, “The Article 2 Powers of the Senate”, Jay c.1788

    The power of making treaties is an important one, especially as it relates to war, peace, and commerce; and it should not be delegated but in such a mode, and with such precautions, as will afford the highest security that it will be exercised by men the best qualified for the purpose, and in the manner most conducive to the public good. The convention appears to have been attentive to both these points: they have directed the President to be chosen by select bodies of electors, to be deputed by the people for that express purpose; and they have committed the appointment of senators to the State legislatures. This mode has, in such cases, vastly the advantage of elections by the “People in their Collective Capacity”, where the activity of party zeal, taking the advantage of the supineness, the ignorance, and the hopes and fears of the unwary and interested, often places men in office by the votes of a small proportion of the electors.]

    Notice this includes all Senators, the President, and the Vice President, all are chosen in a consensus choice mode of selection which is dependent on the Most Numerous Legislative Branch identifying and ranking all the persons to be considered and the ballot is then formed from the top persons on that aggregate list of persons identified by the Most Numerous Legislative Branch, and remember, the electors are exactly equal to the whole number of Senators and Representatives which each State is entitled in the congress, therefore the electors are again the People in their Collective Capacity, but it excludes any sitting Senators and Representatives in the federal congress, but that requirement is not included in a States selection process unless the People in their Collective Capacity in the State choose to exclude the sitting representatives and opt for an elector system which represents the People in their Collective Capacity for that purpose.

    So, the 14th amendment is based upon a fallacy, and again to conflate barring running for office with holding office is also a fallacy. The ballot for determining the President is not the ballots the electors use to indicate the qualified candidates they themselves have vetted, the ballot for the President is from the top candidates on the aggregate lists of candidates identified by the electors, HUGE DIFFERENCE.

    So when a candidate is barred from holding higher office, that candidate is excluded from the choices the electors can make on their two ballots, and even if an elector places their name on one of their two ballots, it would be removed and replaced before the list of candidates is certified, with a candidate that does meet all the requirements for holding office. But the candidates themselves cannot self declare, they could but it wouldn’t mean anything to the process, because only the electors identify and rank the candidates in their own State’s, and the electors must be chosen at the same time, and must gather to give their votes by ballot on the same day, a day which must be the same in every State, which makes it impossible for any State to know who the electors are that were appointed in the other States, and it makes it impossible for any State to know who the electors considered and placed on their list in other States, and no candidates know they are being considered, and it would be impossible for anyone to know if they, not only are considered, but would be in the top candidates on the aggregate list once compiled in congress to form the ballot of persons to be considered by the States, where the States make the choice after deliberating those top candidates by vote, 1 vote per State, and a majority of all the States is necessary to the choice.

    There goes your 14th amendment, another useless amendment which tries to amend something that is totally unamendable!

  17. But trump, despite his idiotic plan, is still an active seditionist and he did more than enough to be considered to have led a rebellion or insurrection.

    It is impossible to determine “more than enough”. when you refuse to define what elements are minimally required. The simple fact, there is nothing in the constitution that would prevent Trump from running and being elected. Legislation attempting to created new requirements to be President need to be added to the Constitution, not created by statute.

    1. Iowan2,
      Those afflicted with TDS, anything Trump does or says is a case for sedition.
      Even getting up in bed in the morning. That is how deadly TDS is. It alters their reality to the point only thing that can help is being committed to a mental health facility, anti-psychotic medication and even electro-therapy.
      Amazing how one man can destroy the minds of so many people.

      1. Oh, but I do see it.
        Every day you post your derangement for all to see.
        It is quite sad.
        Get help.

      1. “Scary thing is it seems you really believe this.”

        Irony, as always, is lost on the left.

        Pretty sure what he was demonstrating is how easy it is to just say stupid sh!t and move on.

  18. Well. I certainly respect Jon’s legal opinion greatly. Other equally great legal theorists disagree. What will likely happen is some state will ultimately say the former president is not eligible to be on their ballot due to the fourteenth amendment. The Supreme Court will like strike it down.

    With all that said, should the very clearly unfit Trump, who definitely attempted to subvert an election, become president again, folks like Jon will have a reckoning to deal with when this madman decides not to leave office at the end of his second term.

    It will start like this. Trump will say the people want to amend the constitution to allow him to stay. Of course that has no chance of passing. But another “riot” kicked up again by Trump, could simply allow him to declare martial law and stay. Institutions and such be dammed. If that sad day comes, Jon will wish perhaps he did see January for exactly what it was.

          1. Did Hilary concede? Did Obama ever say that Trump won the office? Did Gore not take months to concede? Did Abrams ever concede?

    1. What you wrote sounds exactly like what Biden and the Democrats will attempt to do if it looks like Trump is even close to winning.
      They will just use some made up BS like, climate change, national security threat where there is none, or their always fall back: Russia! Russia@ Russia!

    2. Is America a society of laws?

      Shall we obey only the laws we enjoy?

      If you cannot, and you cannot, cite the Constitution for a prohibition of secession, a right and freedom the Founders availed themselves of, everything Lincoln and his successors did subsequent to Lincoln’s unconstitutional denial of secession is invalid, illegitimate, illegal, and unconstitutional, including the “Reconstruction Amendments,” derived from an anti-American, anti-constitutional communist’s (i.e. Karl Marx) plans and edicts, and must be similarly struck down by the Supreme Court.

      To wit,

      “They consider it an earnest of the epoch to come that it fell to the lot of Abraham Lincoln,…to lead his country through…the RECONSTRUCTION of a social world.”

      – Letter From Karl Marx to Abraham Lincoln, 1865

      The SCOTUS recently acted retroactively by 50 years to strike down unconstitutional Roe v. Wade.

      The SCOTUS must now act retroactively by 150 years to strike down the entirety of the wholly unconstitutional “Reign of Terror” of Abraham Lincoln and his successors, including all of its unconstitutional ramifications and consequences.

  19. If Trump’s coup had been successful he would certainly be retaliating against anyone trying to bring him to accountability by bringing bogus charges against them. Indeed, everyone who has ever gone after Trump has ended up with calls to “investigate the investigators” – and there are enough in the Trump cult in positions of power to oblige that call. (see Jordan investigation, Comer investigation, Durham investigation, etc.)

    If Trump’s coup had been successful Turley would be arguing with us that no one can bring Trump to account for anything because of course Trump is President.

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