Conservative legal expert shoots down arguments against disqualifying Trump from state ballots

Conservative J. Michael Luttig, a retired judge and scathing critic of Donald Trump, has been arguing that the former president is disqualified from running for office in 2024 under Section 3 of the U.S. Constitution's 14th Amendment. Section 3 states that someone who has "engaged in insurrection or rebellion" is disqualified from the presidency and Congress as well as state governments.

The courts have been grappling with Trump and the Section 3, and the matter may ultimately be decided by the U.S. Supreme Court. In Colorado, District Judge Sarah Wallace agreed that Trump's efforts to overturn the 2020 election results amounted to an "insurrection" but ruled that a president doesn't fit the definition of "officer" under Section 3.

Law professor Ilya Somin disagrees strongly with Wallace's decision. In an article published by the conservative website The Bulwark on November 30, Somin (who teaches at George Mason University in Fairfax County, Virginia near Washington, D.C.) argues that Section 3 does, in fact, make Trump ineligible for the 2024 election.

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"A president who tried to use force and fraud to stay in power after losing an election should not be allowed (to) wield the power of office ever again," Somin explains. "And we need not and should not rely on the democratic process alone to combat such dangers. Trump should not be barred from the ballot if there are legal reasons why Section 3 cannot be used against him. But the legal arguments against disqualification are ultimately unsound, and most are very weak."

Somin adds, "The same goes for pragmatic arguments against disqualification."

Section 3, accoding to Somin, "targets would-be authoritarians who have a real chance of winning" — including former presidents.

"While Judge Wallace ruled that Trump engaged in insurrection," Somin explains, "she ultimately let him off the hook based on a much weaker theory: that the president is not an 'officer of the United States' and therefore, is not covered by Section 3 at all. This argument has a number of other notable defenders, but it is still badly wrong."

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Somin continues, "It would be absurd for Section 3 to cover all other elected and appointed officials — including low-level bureaucrats —while excluding the president — the official with the greatest power, and thus the one whose involvement in insurrection poses the greatest potential threat. Such an exclusion violates the longstanding rule that courts should avoid interpretations of law that lead to absurd results."

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Read Ilya Somin's full article for The Bulwark at this link.