Watergate prosecutor: Scholars make 'convincing case' that 14th Amendment disqualifies Trump

Former Watergate prosecutor and the first woman to serve as United States Army general counsel Jill Wine-Banks told MSNBC on Sunday morning that ex-President Donald Trump is ineligible to hold office under Article III of the Constitution's 14th Amendment because of his alleged involvement in a criminal conspiracy to steal the 2020 election and remain in power.

It states:

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.

CNN's Katelyn Polantz notes on Sunday that "prominent conservative legal scholars" argue that Trump "should be barred from the presidency," pointing out that "the latest salvo came Saturday in The Atlantic Magazine, from liberal law professor Laurence Tribe and J. Michael Luttig, the former federal appellate judge and prominent conservative who's become a strong critic of Trump's actions after the election. Not all in the legal community agree – and what the scholars are proposing would need to be tested in court. Yet Luttig and Tribe's writings capture a conversation about the Constitution and the 2021 insurrection that is likely to grow heading into the 2024 election season."

POLL: Should Trump be allowed to hold office again?

Tribe and Luttig write:

Section 3 is no anachronism or relic from the past; rather, it applies with the same force and effect today as it did the day it was ratified—as does every other provision, clause, and word of the Constitution that has not been repealed or revised by amendment.

We were immensely gratified to see that a richly researched article soon to be published in an academic journal has recently come to the same conclusion that we had and is attracting well-deserved attention outside a small circle of scholars—including Jeffrey Sonnenfeld and Anjani Jain of the Yale School of Management, whose encouragement inspired us to write this piece. The evidence laid out by the legal scholars William Baude and Michael Stokes Paulsen in 'The Sweep and Force of Section Three,' available as a preprint, is momentous. Sooner or later, it will influence, if not determine, the course of American constitutional history—and American history itself.

The two of us have long believed, and Baude and Paulsen have now convincingly demonstrated, that notwithstanding its specific historical origin, Section 3 is no anachronism or relic from the past; rather, it applies with the same force and effect today as it did the day it was ratified—as does every other provision, clause, and word of the Constitution that has not been repealed or revised by amendment.

Baude and Paulsen also conclude that Section 3 requires no legislation, criminal conviction, or other judicial action in order to effectuate its command. That is, Section 3 is 'self-executing.' (Other scholars have relied on Chief Justice Salmon P. Chase's poorly reasoned opinion in an 1869 case called In Re Griffin to support the contrary view. Baude and Paulsen decisively dismantle Griffin as a precedent).

Tribe and Luttig add:

No person who sought to overthrow our Constitution and thereafter declared that it should be 'terminated' and that he be immediately returned to the presidency can in good faith take the oath that Article II, Section 1 demands of any president-elect 'before he enter on the Execution of his Office.'

Wine-Banks concurred:

How could you disagree with two eminent constitutional scholars like Laurence Tribe and Judge Luttig? I think that they have made a very persuasive case. They've laid it out very clearly, setting out why they think it is self-executing. In the past people have said, 'You can't bar him unless he's convicted of a crime of insurrection.' They make a very convincing case that if you give aid to insurrectionists, which clearly anyone watching the news has seen that that is enough to bar him and that that's self-executing. So I hope it's not just because I like that conclusion, but they are very persuasive. I think they are two great scholars, and I haven't heard any great scholars arguing against it.

Watch below or at this link.

MSNBC 08 20 2023 06 12 57youtu.be

READ MORE: Former Trump-supporting Iowans don’t think he stands a chance: report

Polantz's analysis continues here. Tribe's and Luttig's editorial is here (subscription required).