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Aron Solomon Opinion: How Solid is the Trump 14th Amendment Disqualification Argument?

With a daily buffet of Donald J. Trump news stories from which to choose, the media tend to swarm around certain stories, extract all the nectar, and then move on. This remarkably mixed metaphor aside, a story we will see a lot of over the next few weeks is the constitutional argument that former president Trump should already be disqualified from being president again because he has violated the 14th Amendment.

Efforts to disqualify former president Donald Trump from running for president in 2024 have started to materialize as different groups begin the process to challenge his eligibility. Liberal groups are trying to use the Constitution’s insurrection clause to block Trump from 2024 ballots.

They cite a rarely used provision of the 14th Amendment barring from public office those who swore an oath to uphold the Constitution and then engaged in insurrection or rebellion against the United States. Legal scholars say that the 14th Amendment should now bar Trump from office. Some scholars say Trump is disqualified under the 14th Amendment’s insurrection clause. Virginia Democratic Sen. Tim Kaine said there is a powerful argument to be made for barring Donald Trump from the 2024 presidential race.

Those in the media who will echo this argument will try to sell the notion that Trump’s actions leading up to and during the January 6th Capitol riot constitute insurrection and rebellion against the United States. It will be further argued that Trump’s continued promotion of the false claim that the 2020 election was stolen from him constitutes giving aid and comfort to those who seek to undermine the democratic process.

Yet Michael T. van der Veen, the attorney who represented then-President Trump during his second impeachment, presents a compelling legal counterargument.

“It will eventually be up to the Supreme Court, which will have to decide whether Trump’s actions meet the criteria of Section 3 of the 14th Amendment – and whether disqualifying him from running for president again is a constitutional remedy for those actions. To this legal end, this incarnation of the Court may weigh the perceived intent of the framers of the 14th Amendment and the historical context in which it was written. This could ultimately work to Trump’s benefit,” noted van der Veen.

Van der Veen is correct that this entire 14th Amendment analysis has a legal underpinning, yet there is no way to ignore the highly charged political implications of any eventual challenge to whether Donald J. Trump can once again run for president. This is something the media understands remarkably well, which is why this entire topic will be as popular as it is projected to be by even the most optimistic political and legal analysts.

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While Democrats in the House and Senate will loudly argue that disqualifying Trump is necessary to protect democracy and prevent future insurrections, the GOP retort will be that it is an unconstitutional attempt to silence political opposition. Ultimately, the Supreme Court will have to balance the legal and political considerations in deciding whether to disqualify Trump from running for president again under the 14th Amendment.

That’s not going to be an easy task for any group of Supreme Court Justices, particularly this group that has been mired in controversy and seen their public approval rating fall to historic lows. In purely practical terms, the idea that the Supreme Court would interpret the 14th Amendment in a manner that precludes Trump from running again seems nearly impossible. While everyone has an opinion on what should happen here, what will almost certainly happen is the Court refraining from doing anything to make the light in which it is seen even darker than it is today.

A Pulitzer Prize-nominated writer, Aron Solomon, JD, is the chief legal analyst for Esquire Digital and Today’s Esquire. He has taught entrepreneurship at McGill University and the University of Pennsylvania, and was elected to Fastcase 50, recognizing the top 50 legal innovators in the world. Aron has been featured in Fast Company, Fortune, Forbes, CBS News, CNBC, USA Today, ESPN, Today’s Esquire, TechCrunch, The Hill, BuzzFeed, Venture Beat, The Independent, Fortune China, Yahoo!, ABA Journal, Law.com, The Boston Globe, and many other leading publications across the globe.

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  • Aron Solomon

    A Pulitzer Prize-nominated writer, Aron Solomon, JD, is the chief legal analyst for Esquire Digital and Today’s Esquire. He has taught entrepreneurship at McGill University and the University of Pennsylvania, and was elected to Fastcase 50, recognizing the top 50 legal innovators in the world. Aron has been featured in Newsweek, Fast Company, Fortune, Forbes, CBS News, CNBC, USA Today, ESPN, Today’s Esquire, TechCrunch, The Hill, BuzzFeed, Venture Beat, The Independent, Fortune China, Yahoo!, ABA Journal, Law.com, The Boston Globe, and many other leading publications across the globe.

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