Timothy Snyder1 is a good historian and has some perceptive analyses of how democracies can deteriorate into autocracies.
In a recent Substack column, he brings up an important Constitutional consideration about Donald Trump. But Snyder doesn’t seem to realize that the provision he cites isn’t self-executing:
Whereas Section 1 of Article Two has to do with … factors over which a person has no control, place of birth and legal status of parents, Section 3 of the Fourteenth Amendment concerns how an American citizen behaves. It forbids officeholders who try to overthrow the Republic from holding office again. It reads:
“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.”
That post-Civil War provision wasn’t certainly written with people like Confederate President Jefferson Davis as well as the orange ex-President Trump in mind.
But unless Trump was somehow formally, legally designated as having “engaged in insurrection or rebellion” against the US government, it’s hard to see how he could be legally disqualified from running. If Congress had convicted him and removed him on one of his two impeachments and removed him from office, that would have disqualified him from holding the office again.
And if he were legally convicted of insurrection or rebellion, that provision would obviously kick in.
But even though some of the crimes of which Trump is charged definitely relate to the January 6 insurrection, it’s not obvious to me that any of them would clearly trigger the Constitutional clause in question.2 And it would need to be clear, because Trump would surely take the case to the Supreme Court for Clarence Thomas’ sugar-daddy Harlan Crow to decide.3 Or maybe Harlan and Thomas’ other generous benefactors4 will all take a vote on how it should go.
Just being convicted of felonies other than rebellion or insurrection would not legally disqualify him for running for President again.
We can have the Constitution...: Or we can have Trump. Thinking About … 08/12/2023. (Accessed: 2023-16-08).
Politico Staff (2023): Tracking the Trump criminal cases. Politico 08/16/2023. <https://www.politico.com/interactives/2023/trump-criminal-investigations-cases-tracker-list/> (Accessed: 2023-18-08).
Kirchgaessner, Stephanie (2023): Harlan Crow on collision course with Senate over Clarence Thomas gifts. The Guardian 06/23/2023. <https://www.theguardian.com/us-news/2023/jun/23/harlan-crow-senate-investigation-clarence-thomas-gifts-tax-supreme-court> (Accessed: 2023-18-08).
Murphy, Brett & Mierjeski, Alex (2023): Clarence Thomas’ 38 Vacations: The Other Billionaires Who Have Treated the Supreme Court Justice to Luxury Travel. ProPublica <https://www.propublica.org/article/clarence-thomas-other-billionaires-sokol-huizenga-novelly-supreme-court> 08/10/2023.