Legal experts Laurence Tribe and J. Michael Luttig recently argued in an essay for the Atlantic that former President Donald Trump is constitutionally disqualified from running for President in 2024, despite not having been convicted of any crime.
They cited Section 3 of the 14th Amendment, which states that anyone who has engaged in insurrection or rebellion against the United States is barred from holding future office. However, former federal prosecutor Elie Honig disagrees with their interpretation.
Honig, speaking on CNN, acknowledged that Tribe and Luttig are "two brilliant scholars," but he believes their legal argument is weak. He points out that while the 14th Amendment prohibits individuals who have participated in insurrection or rebellion from holding office, it does not specify who makes the decision or how it is made.
There is no guidance in case law or statutes regarding this issue. Honig raises questions about whether Congress, the Senate, the House, a majority, two-thirds, a court, a jury, or a judge would be responsible for making this determination.
In addition to the problems with interpreting the legal text, Honig rejects the argument that the 14th Amendment is "self-executing." He disagrees with the idea that every state and local official who handles ballots would independently decide whether Trump is disqualified or not. This approach would lead to inconsistency and chaos, which Honig deems impractical.
While the argument that Trump is constitutionally disqualified from running for president under the 14th Amendment is gaining traction, Honig highlights several issues with this theory. Firstly, the Constitution itself cannot bar Trump from running; it would require an arbiter, such as Congress, a judge, or a jury, to declare him disqualified. This raises the problem of interpretation, as different individuals may interpret and apply the text differently. This could result in Trump being eligible in some states but disqualified in others, leading to inconsistency and chaos.
Furthermore, Trump has not been officially charged with "insurrection or rebellion." Even if he were, he would be considered innocent until proven guilty, a principle derived from due process clauses in the Constitution. Supporters of using the 14th Amendment to disqualify Trump would need to address whether he would have the opportunity to defend himself against such charges and how this position aligns with American criminal jurisprudence.
While using the 14th Amendment to prevent Trump from holding office again may seem convenient, Honig emphasizes that it is just a theory with several issues, including the feasibility of enforcing it against Trump.
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