Opinion | Donald Trump and the 14th Amendment – The Washington Post
Regarding the Dec. 29 front-page article “Trump barred from primary ballot in Maine”:
In all the discussions I’ve read about whether former president Donald Trump should be disqualified from the 2024 ballot under the 14th Amendment, one salient fact has been overlooked: In the second impeachment of Mr. Trump, though he was not convicted by the two-thirds vote required in the Senate, a majority in both houses of Congress (including some members of his own party) found that Mr. Trump had incited an insurrection on Jan. 6, 2021. Inciting an insurrection necessarily entails engaging in one, thus meeting the factual predicate for invoking and applying Section 3 of the 14th Amendment’s disqualification for holding federal or state office.
It’s not just Maine’s secretary of state or the Colorado Supreme Court that have made this finding. Importantly, the Congress that witnessed and experienced the storming of the Capitol on the day set for their certifying the 2020 election had already done so based on evidence sufficient for these majorities to support impeachment and conviction — evidence that was hugely augmented in the investigation, hearings and report of the House’s Jan. 6 committee.
Nathaniel Spiller, Chevy Chase
Colorado and Maine correctly concluded that former president Donald Trump is an insurrectionist who is barred from holding office by Section 3 of the 14th Amendment. But they incorrectly concluded that Mr. Trump should be excluded from the 2024 ballots.
Section 3 provides that an insurrectionist who previously took an oath of office may not “hold” office, but it does not bar candidates from being on ballots. It is one thing to keep off the presidential ballot someone whose ineligibility could not be waived (an underage or nonnatural born citizen candidate). But it is quite another to keep off the presidential ballot someone whose ineligibility could be removed. Section 3 provides a method for seating an oath-breaking insurrectionist, albeit only by “supermajorities” in the Senate and House.
If, and only if, Mr. Trump wins a majority of the electoral votes will the Supreme Court need to decide if there is sufficient evidence to prevent him from taking office. If the court does affirm the well-reasoned decisions from Colorado and Maine on the insurrection issue, Mr. Trump could take office if, and only if, he can convince two-thirds of the Senate and the House to remove his ineligibility. If he cannot do so, he cannot hold office. Voters have the right to understand this in advance so they can make reasoned decisions.
In any event, the best thing for the country, legally and politically, will be for Mr. Trump to be on the ballot — and for the American people to so soundly defeat him that even the malapportioned electoral college will not result in the election of this insurrectionist.
David S. Fishback, Olney
The writer is a retired career U.S. Justice Department attorney.