Renominating Trump Could Cause a Dangerous Chain Reaction

I n this summer’s blockbuster film about the father of the atomic bomb, J. Robert Oppenheimer is discussing whether the world was prepared for it. “They won’t fear it until they understand it,” he says. “And they won’t understand it until they use it.”

If a nuclear reaction is begun by the splitting of an atom, in our country’s current politics, a chain reaction of legal and electoral chaos may well be triggered by the nomination of Donald Trump as the GOP’s presidential candidate. Perhaps you’ve heard the story. Section 3 of the 14th Amendment, which was passed in the wake of the Civil War, forbids anyone who has “previously taken an oath” to support the Constitution and who has “engaged in insurrection or rebellion” from ever holding office again. While there is an argument that blanket amnesties passed by Congress essentially nullify this provision, that view was rejected last year by the Fourth Circuit Court of Appeals. In a comprehensive and thoughtful paper, law professors Will Baude and Michael Paulsen argue that Trump’s conduct following the 2020 election and leading up to the events of January 6, 2021, constitutes insurrection, thus making him constitutionally disqualified from running for president. Other scholars disagree.

Baude and Paulsen (both of whom are affiliated with the conservative Federalist Society) also say that this constitutional prohibition is “self-executing,” meaning that it can (and should) be enforced by “anybody who possesses legal authority to decide whether somebody is eligible for office.” There need be no conviction in court, no act of Congress, nor even a court case declaring Trump to be ineligible. The chain reaction could begin as soon as Trump is placed on a ballot in any election. And just like the Trinity test in 1945, we can’t be sure what will happen in 2024 until the button is pushed.

No one really knows just what constitutes “insurrection” or “rebellion” for the purposes of Section 3. Brilliant lawyers disagree. Baude and Peterson point out that Section 3, because it is itself of constitutional stature, supersedes all earlier constitutional limitations. This raises the possibility that certain speech for which Trump cannot be prosecuted may nevertheless disqualify him from office. We are partial to the argument that, to be deemed an insurrection, an action should look more like the Civil War that led to the amendment’s adoption than like false claims, however reprehensible, of a stolen election and specious legal theories that electoral votes need not be accepted. But the question won’t be answered until — and if — the Supreme Court weighs in.

The process of determining whether Trump is constitutionally disqualified as a candidate can begin in many places, initiated by many persons at various times. It might even involve many actors within a state. For example, in the swing state of Wisconsin, the law empowers certain officials to refuse to place a candidate’s name on the ballot if he or she cannot qualify for the office because of age, residence, or “any other impediment.” For presidential nominations, this is probably the Wisconsin Elections Commission (or perhaps its administrator), but it’s possible that any one of Wisconsin’s 72 county clerks or its 1,850 local election clerks (who actually run the elections in cities, villages, and towns) might decide to strike Trump from the ballot based on a belief that state law or the oath of office that such clerks take requires them to apply the “self-executing” Section 3. Even if election officials don’t act, voters might sue to disqualify Trump, as has happened, with mixed results, to several Republican members of Congress alleged to have been complicit in the events of January 6.

The spectacle of Republican lawyers fanning out across the country to play a game of Whac-A-Clerk, arguing that their client, the actual or potential nominee, is not an insurrectionist, is something we’ve never seen. Some lawyers will try to get the issue before the Supreme Court as soon as possible, while others will seek to delay. No one knows how quickly the Court would act or how many lower courts and election officials would by then have already banned him from the ballot.

Republicans may assume that a conservative Supreme Court would come to the rescue. This is far from assured. While it is unlikely that the Court would regard disqualification as a nonjusticiable “political” question, the chances aren’t nil. And while Baude and Paulsen might be wrong on the merits, their argument has strong textual and historical support.

The political pressures would be cross-cutting. It might be harder for the Court to declare Trump ineligible once he has won the nomination. Forcing a major party to replace its nominee is the type of political entanglement that the Court’s institutionalists would be eager to avoid. But a later consideration of the case would also increase the likelihood that Trump, by that point, will have been convicted. A jury verdict for an attempted stolen election may make institutionalists such as Chief Justice John Roberts and Justice Brett Kavanaugh more reluctant to pull Trump’s chestnuts from the fire.

What are the chances for an uncontrolled chain reaction? It’s anyone’s guess — probably neither remote nor unlikely. Yet no matter what happens, each side will decry an “assault on democracy.” Republicans will complain that a presidential election has been effectively canceled. Democrats will respond that the Constitution must be followed. Who, they will ask, could ever be confident that a second-term President Trump would faithfully execute his oath of office? The stress on our institutions and polity is hard to predict.

Both parties — and the country itself — may be facing a form of mutually assured destruction. The time to understand, and fear, the prospect is now. Democrats ought to reconsider the no-holds-barred lawfare that causes Republicans to rally around Trump. Republicans may want to think about nominating someone else.

Rick Esenberg is the president and general counsel of the Wisconsin Institute for Law & Liberty, where Dan Lennington is the deputy counsel.