Trump disses 14th Amendment talk as 'another trick' but efforts to disqualify him continue

Former President Donald Trump this week derided talk of invoking the U.S. Constitution's 14th Amendment to disqualify his surging 2024 presidential candidacy.

In a social media post Monday evening, Trump said calls to invoke the 14th amendment amount to "just another 'trick' being used" by his political opponents to interfere in next year's election. The missive was Trump's first direct comment on the growing chatter about the amendment's implications since the topic swelled in recent weeks.

Trump wrote in the post that "almost all legal scholars" claim the amendment "has no legal basis or standing relative" to next year's election.

But discussion about challenging Trump's name on ballots continues to grow, however, and legal challenges are following. On Wednesday, the New York Times reported that six Colorado voters filed a lawsuit in a state court in Denver to ban Trump's name from next year's primary ballot on Super Tuesday, March 5.

Talk of banning the former president from ballots mushroomed last month when retired conservative federal judge J. Michael Luttig and liberal constitutional scholar Laurence Tribe on Aug. 19 wrote an article for The Atlantic in which they delineated reasons the 14th Amendment disqualification should be applied to Trump.

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About the same time, law professors William Baude of the University of Chicago and Michael Stokes Paulsen of the University of St. Thomas wrote a detailed 126-page report explaining why the 14th Amendment applies to Trump. Baude and Paulsen are both members of the conservative Federalist Society, which has been a principal player in ushering forward conservative jurists across the United States, including on both the U.S. and Florida high courts.

The debate has since grown louder from Washington to the GOP campaign trail.

Capitol Hill Democrats including U.S. Sen. Tim Kaine of Virginia, the party's 2016 nominee for vice president, and California Congressman Adam Schiff, who prosecuted the case against Trump in the first U.S. Senate impeachment trial and served on the Jan. 6 committee, both believe the amendment disqualifies the former president.

But Trump's then vice president, Mike Pence, who has sharply disagreed with Trump on Jan. 6 events, has argued against invoking the amendment. Pence, who lags well behind Trump in GOP president primary polls, told reporters the issue should "be left to voters."

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What does the 14th Amendment actually say?

The 14th amendment was ratified in 1868 after the Civil War during Reconstruction and addressed the citizenship status of freed slaves and the re-integration of the defeated Confederate states back into the Union.

Some of the 14th Amendment's provisions have been the basis for U.S. Supreme Court landmark rulings, such as the 1954 Brown v. Board of Education school desegregation case and the 1973 Roe v. Wade abortion decision.

The amendment has played a role in presidential elections, too. It was invoked in the U.S. Supreme Court's Bush v. Gore decision that ended the 2000 Florida presidential vote recount and granted the Sunshine State's election-deciding electoral votes to Republican candidate George W. Bush.

Section 3's 'disqualification clause' is drawing attention

The provision in the 14th Amendment drawing attention now is Section 3's "disqualification clause," which addresses those who engage in insurrection and rebellion against the United States.

Section 3 bars a U.S. citizen from holding office if "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."

Constitutional expert Kevin Wagner has said he respects the legal scholars who have weighed in on its application to Trump but believes implementing the disqualification clause against Trump will be a "heavier lift" than some may think because of the unprecedented magnitude of what is at stake.

"We've never disqualified a president that I've been aware of under this provision," Wagner, a professor of political science at Florida Atlantic University, said in an interview last month.

A 14th Amendment lawsuit gets tossed, but other challenges could be coming

In fact, one lawsuit challenging Trump's name appearing on Florida's presidential preference primary ballot next month was dismissed last week. But federal court Judge Robin Rosenberg, in an order signed in West Palm Beach, tossed the legal action over whether the plaintiff had standing to sue, and not the applicability of the 14th Amendment.

One of the plaintiffs who brought the lawsuit, Boynton Beach attorney Lawrence Caplan, noted that Rosenberg's ruling opened the possibility that the challenge could be refiled in Washington, D.C., and he said he was mulling that possibility.

More challenges may be coming as well.

One organization, Free Speech for People, said it plans to file challenges against Trump's candidacy in "multiple states" ahead of the start of the 2024 primary calendar. Ron Fein, the organization's legal director, would not disclose when and in which states those challenges would be filed.

"We're not going to tell Trump when or where we are filing in advance," he said.

Fein said Free Speech for People, which was formed after the high court's 2010 Citizens United ruling, would pursue state-based challenges along "two tracks."

One path, he said, will go straight to secretaries of state and election officials in the target states. The other will be legal challenges based on state laws governing candidate eligibility requirements, akin to the way candidates are bumped off ballots because they don't meet age or residency requirements.

A Section 3 challenge, Fein said, is rare not because the amendment's provisions are inapplicable but simply because there haven't been many insurrections against the United States, and certainly not one led by the then-sitting president of the United States.

Fein argues Trump summoned the Jan. 6 insurrectionists to Washington, incited them to insurrection by goading them on social media and in his speech that day and then delayed stopping the violence for hours. He noted that both houses of Congress, Trump's Justice Department and 16 federal judges have stated and/or ruled that Jan. 6 was an insurrection.

"And, for the first time in our nation's history, actually did block the peaceful transfer of power for a time. That's further than the Confederacy got," Fein said. "That is why he engaged in insurrection against the United States and he is disqualified under the 14th amendment."

Others say they are not sure, want clarity

As talk continues to mushroom about 14th Amendment challenges, some Floridians say they should be able to decide, while others call for clarity.

Eric Simon of Miami said he is swayed by the argument that Trump "gave aid or comfort to those" involved in the attack on the U.S. Capitol with his "January 6 statements." But Simon said he would like to see Florida Attorney General Ashley Moody issue an opinion to make the matter clear now as voters begin focusing on the candidates running for president.

"It would seem to be in everyone's best interest to know sooner than later if Donald Trump's name ought to be on the ballot," Simon wrote in an email.

But another Floridian said it's the voters who should decide who governs them.

"How can they take him off the ballot?" said Lori Richards of Port Charlotte. "Doesn't it go by the majority of who we the people want running our government? If they take him out of the running and a majority of Republicans are backing him, isn't that unfair to Republicans?"

Free Speech for the People's Fein's response is that the U.S. Constitution is not a historical "artifact" but the supreme law of the land. And anyone, from citizens to elected leaders, swearing to uphold it must do so regardless of partisan consequences.

"Sometimes people look at the 14th amendment as if it were some exotic artifact," he said. "But in fact, it says what it says and it means what it means. And it is what our predecessors bequeathed to us as the device to protect us against insurrectionists in the future. And in that sense, it is designed for people exactly like Donald Trump."

Antonio Fins is a politics and business editor at The Palm Beach Post, part of the USA TODAY Florida Network. You can reach him at afins@pbpost.com. Help support our journalism. Subscribe today.

This article originally appeared on Palm Beach Post: Trump dismisses 14th Amendment talk as efforts to disqualify him grow