Washington Post Columnist Jennifer Rubin on Tuesday called on secretaries of state to join their counterparts in New Hampshire and Michigan in considering whether former President Donald Trump violated section three of the Fourteenth Amendment and should be removed from the 2024 presidential ballot.
Rubin’s call came in an opinion article in the Post, where she highlighted legal analysis from anti-Trump scholars William Baude and Michael Stoked Paulsen, who argued in the University of Pennsylvania Law Review that Trump incited an insurrection on January 6, 2021, and should be disqualified from the 2024 ballot. She also pointed to an Atlantic article authored by legal scholars J. Michael Luttig and Laurence H. Tribe, who contend that Trump should be barred from the presidential ticket.
Rubin wrote:
The first step must be a recognition that the 14th Amendment is relevant and demands fidelity from all officials who take an oath to defend the Constitution. As Luttig and Tribe wrote, “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it did the day it was ratified — as does every other provision, clause, and word of the Constitution that has not been repealed or revised by amendment.”
Now, secretaries of state and other officials must grapple with how to make the determination. Does state law require they obtain a ruling from the state attorney general or other legal official? Do they conduct open hearings to provide transparency and educate voters? There are no easy answers because we have never witnessed the accused instigator of an attempted insurrection run for president. And though Trump is not yet the nominee, it would be reckless not to prepare for the strong likelihood that Republican primary voters will nominate their cult leader.
She went on to add that an official who is “seriously wrestling with this issue deserves praise and support — just as those MAGA voters placing them and the country in this untenable position deserve our scorn.”
Under section three of the Fourteenth Amendment, one who incites an insurrection is barred from holding office, though there is debate about whether the presidency or vice presidency is included, as every federally elected office is explicitly listed in the section except those for two, Breitbart News Senior Editor Joel Pollak and the Washington Examiner‘s Byron York have pointed out. And while there was certainly a violent riot at the U.S. capitol on January 6, 2021, George Washington University Law Professor Jonathon Turley contended in a recent op-ed for the Hill that it did not rise to an “insurrection.”
“A political protest became a political riot,” he wrote.
Michigan Secretary of State Jocelyn Benson (D) and New Hampshire Secretary of State David Scanlan (R) have apparently caught wind of the arguments for keeping Trump off the ticket, with Scanlan meeting with failed 2020 Republican U.S. Senate candidate in the Granite State Corky Messner, who WMUR reported “is bringing in a New Hampshire-based lawyer and financing the potential legal challenge himself.”
“When somebody makes a reasoned argument about what those provisions mean, I feel an obligation to at least listen to them,” Scanlan said.
“A decision of that magnitude that’s a decision of deciding that somebody is not qualified to run, a person, is extraordinary,” he added. “And it really has to be treated with that degree of importance.”
Rubin, once a conservative commentator turned Never Trumper in 2016, argues that Scanlan’s posture serves “as a model for not only secretaries of state but also all other officials (e.g., state electors, governors) who have a role in presidential qualification and certification.”
Benson last week told MSNBC’s Deadline: White House with Nicole Wallace that a number of implications are at play in weighing potentially removing Trump from the ballot, highlighting concerns around due process as “typically, a conviction is used to determine the facts and solidify the facts when someone is deemed ineligible.” Notably, Trump has not been convicted of any criminal act, though he faces four indictments. No charges allege an insurrection or seditious conspiracy, including in the federal case surrounding the 2020 election challenge.
“If we’re not going to predicate this on conviction under the law, then what and how do we ensure due process? How do we define insurrection or rebellion? Who makes that determination?” said Benson, who expressed that state officials must be “very careful in making decisions not from a political standpoint but from a legal standpoint.”
“We’re looking at it carefully, and we’re weighing all of the thorny issues at play,” she added.