Will Donald Trump Be Disqualified from Running Under the 14th Amendment?

The case that Donald Trump is ineligible to run for president in 2024 due to the 14th Amendment is "compelling," but "unlikely to gain broad acceptance," according to a former federal prosecutor.

Earlier this month, two prominent legal scholars wrote a 126-page report arguing Trump is "disqualified" from running for the White House again under section three of the 14th Amendment, due to his "participation in the attempted overthrow of the 2020 presidential election."

Trump has a commanding lead in his bid for the 2024 Republican nomination, with a recent poll finding 60.8 percent of likely GOP primary voters want him to be the party's candidate. Thus any move to disqualify the former president could have a seismic impact, and would almost certainly be fiercely contested in the courts. Trump has already been charged in two cases over claims he broke the law in an alleged attempt to overturn the 2020 election, one focused on Georgia and the other nationwide. He denies any wrongdoing and has pled not guilty to all counts.

William Baude and Michael Stokes Paulsen, from the University of Chicago and the University of St. Thomas respectively, wrote that Trump's attempts to reverse the 2020 election outcome amounted to an "insurrection," thus making it unconstitutional for him to run for the White House again unless he receives special permission from two-thirds of both chambers of Congress. Considering the Republicans don't have a two-thirds majority in either the Senate or the House, Trump is extremely unlikely to get this if it comes to pass.

Section three of the 14th Amendment 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" who after taking an oath "to support the Constitution" went on to engage in "insurrection or rebellion." Trump pledged to "preserve, protect and defend" the Constitution during his inauguration in January 2017.

Speaking to Newsweek, Adam Kamenstein, a partner with the Los Angeles-based law firm Adams, Duerk & Kamenstein and a former federal prosecutor, argued the case is strong but is unlikely to be broadly accepted.

He said: "The most highly respected, conservative legal scholars have recently made a trenchant and compelling case that Trump is disqualified from holding the office of president, based on section three of the 14th Amendment, which prevents someone who participated in an insurrection from holding that office, as plainly as the Constitution bars someone who is foreign-born or younger than age 35.

"However, like all legal arguments, its practical application rests on the common acceptance of certain facts. We don't have that here, today, where facts and truth vary depending on one's political point of view. Even if everyone agreed on the underlying Constitutional scholarship, we would never see agreement on the facts to which it must be applied. So, no matter how compelling the legal scholarship, it is unlikely to gain broad acceptance."

Scholars Baude and Paulsen are both members of the Federalist Society, which describes itself as "a group of conservatives and libertarians dedicated to reforming the current legal order." The group states it is committed to upholding "individual liberty, traditional values and the rule of law."

In their report, the two professors describe section three of the 14th Amendment as "self-executing, operating as an immediate disqualification from office, without the need for additional action by Congress." They argue that if Trump isn't excluded there would "likely" be grounds for legal action, which could see the case end up before the Supreme Court. Newsweek has contacted Donald Trump for comment via the press inquiry form on his official website.

On Monday, Trump said he planned to turn himself in on Thursday in Georgia, where he has been charged with 13 counts related to claims he illegally tried to block Joe Biden's 2020 election victory in the state, which he denies. A court filing revealed his bail has been set at $200,000 by Fulton County District Attorney Fani Willis. The bond agreement states: "The defendant shall perform no act to intimidate any person known to him or her to be a co-defendant or witness in this case or to otherwise obstruct the administration of justice."

Trump has announced he won't take part in the first Republican presidential debate, which is due to take place on Wednesday in Milwaukee.