The announcement by Donald Trump that he intends to run for president in 2024 was not only filled with lies and hyperbole, but it may also be unconstitutional.
Trump declared his candidacy Tuesday night, one week after a slew of Republicans he endorsed lost in the midterm elections, prompting a growing number of his party members to distance themselves from the former president.
But what he didn’t say during his announcement is that the 14th Amendment may preclude his candidacy.
That is far from a new sentiment, but it is certainly one that was quickly lent renewed credence after Trump made his announcement. As such, constitutional experts, lawyers and defenders of democracy alike all agree that Trump should be disqualified from seeking any public office, including and especially the presidency — under Section 3 of the 14th Amendment.
What does the 14th Amendment say?
The 14th Amendment has its roots in slavery. Adopted in 1868, it’s considered one of the Reconstruction Amendments and granted citizenship rights and equal protection of the laws to former slaves. In short, under the 14th Amendment, citizenship is awarded to children born in the U.S., or in U.S. territories, to parents who immigrated into the country.
While that aspect of the 14th Amendment applies to Trump — more on that later — it is specifically Section 3 of the 14th Amendment that is relevant to this article:
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.
It’s that last part about engaging “in insurrection or rebellion” fueling the argument that Trump shouldn’t be allowed to run for president again.
“Secretaries of State have a duty to ensure that candidates who seek to appear on their state ballots meet the constitutional qualifications for serving in public office,” Alexandra Flores-Quilty, Campaign Director for Free Speech For People, said in a statement emailed to NewsOne after Trump announced his candidacy. “Donald Trump violated his oath of office when he incited and engaged in a violent insurrection on January 6, 2021 in an effort to overturn a democratic election.”
Flores-Quilty also called for the Department of Justice to bring charges against Trump based on evidence presented by the Select Committee to Investigate the Jan. 6 Attack on the United States Capitol (Jan. 6 Committee) and urged “to fight to uphold Section 3 of the Fourteenth Amendment and bar Trump from the ballot.”
What Trump actually said
At issue are Trump’s fateful words he spoke to his adoring, violent supporters before they illegally broke into the U.S. Capitol and engaged in deadly riots inspired by the former president’s “big lie” that the 2020 election was “stolen” from him.
While addressing a crowd on Jan. 6, 2021, Trump encouraged the audience:
“We fight like hell. And if you don’t fight like hell, you’re not going to have a country anymore!”
While spewing reckless conspiracy theories that have since been widely debunked, Trump’s words were loaded:
“We’re going to have to fight much harder and Mike Pence is going to have to come through for us.”
He followed that up with a persuasive plea:
“I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.”
While Trump’s lawyers have chosen to focus on the word “peacefully,” they ignore what else he said:
“After this, we’re going to walk down, and I’ll be there with you. … We’re going to walk down to the Capitol … because you’ll never take back our country with weakness. You have to show strength. … We’re going to walk down Pennsylvania Avenue … and we’re going to the Capitol.”
The collective response from the crowd was to chant an ominous phrase: “Fight for Trump!”
We all know what happened next.
Does the 14th Amendment apply here?
Norman Eisen, President Barack Obama’s ethics czar, made a compelling case for why Trump did indeed incite the Capitol riots — something that would trigger invoking the 14th Amendment.
The Jan. 6 Committee has done its due diligence in establishing that Trump had plenty of opportunities to publicly tell rioters to stop hours earlier than he did. Instead, Trump reportedly reveled in his followers’ violence while watching live on TV.
“[T]he use of violence or lawless action was imminent and the result of his speech,” Eisen wrote in a USA Today op-ed last year ahead of Trump’s second impeachment.
There are also decades of research showing how language can incite violence.
Kurt Braddock, an assistant professor of public communication at American University’s School of Communication, argued that there are three ways this applies to what Trump said:
First, when a person encounters a message that advocates a behavior, that person is likely to believe that the behavior will have positive results. This is particularly true if the speaker of that message is liked or trusted by the target of the message.
Second, when these messages communicate positive beliefs or attitudes about a behavior – as when our friends told us that smoking was “cool” when we were teenagers – message targets come to believe that those they care about would approve of their engaging in the behavior or would engage in the behavior themselves.
Finally, when those messages contain language that highlights the target’s ability to perform a behavior, as when a president tells raucous supporters that they have the power to overturn an election, they develop the belief that they can actually carry out that behavior.
On the flip side, former prosecutor Jeffery Scott Shapiro wrote in the Wall Street Journal that Trump “didn’t commit incitement or any other crime” because “his speech is protected by the Constitution that members of Congress are sworn to support and defend.”
What about Trump’s second impeachment acquittal?
It can’t be ignored that Trump was found not guilty of inciting the Capitol riots during his second impeachment, which amounted to political theater because, as Minority Senate Leader Mitch McConnell said, a conviction was impossible because Trump was not in office.
However, it can’t be forgotten that McConnell also said following the acquittal that Trump is “practically and morally responsible” for the Capitol riots.
Does Trump even have the support of Republicans anymore?
Trump’s presidential candidacy doesn’t necessarily mean he’ll become the Republican nominee. In fact, to let conservative commentator Armstrong Williams tell it, the Grand Old Party is completely over Trump and called the midterm elections results a referendum on the former president.
Criticizing “Trump’s values,” Williams — who was once firmly aboard Trump’s MAGA train — recently said the former president has “not shown any sign of maturity since he was defeated. It’s just not a good sign that not only does the Republican Party not need him, the country and the world does not need him.”
Political experts have suggested that Florida Gov. Ron DeSantis has supplanted Trump from his dictator-like Republican perch, suggesting the former president’s new candidacy will be all for naught.
In apparent proof of that suggestion, even Fox News — which for years has effectively operated as an unabashed pro-Trump cable network — cut away from his announcement Tuesday night.
What you can do
Free Speech for People has mounted a public campaign to urge election officials to invoke the 14th Amendment over Trump’s candidacy and keep him off of ballots in each state.
It helped launch a new website, www.TrumpIsDisqualified.org, where people can learn more and sign a petition in support.
Trump previously tried to suspend the 14th Amendment
Even before the Jan. 6 insurrection, Trump had taken aim at the 14th Amendment in an effort to suspend it in the name of racist xenophobia.
Back in 2018 ahead of the midterm elections that year, he said he intended to use an executive order to suspend the 14th Amendment without directly referring to it.
In an interview with Axios, Trump lied, “We’re the only country in the world where a person comes in, has a baby, and the baby is essentially a citizen of the United States for 85 years with all of those benefits. It’s ridiculous. It’s ridiculous. And it has to end.”
Trump continued: “It was always told to me that you needed a constitutional amendment. Guess what? You don’t. You can definitely do it with an Act of Congress. But now they’re saying I can do it just with an executive order.” He added, “It’s in the process. It’ll happen with an executive order.”
This is America.