Why Sen. Mike Lee doesn’t believe the 14th Amendment disqualifies Trump
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While some conservatives believe the 14th Amendment disqualifies former President Donald Trump from office, Sen. Mike Lee, R-Utah, is not among them.
“This is a novel legal theory that rests on a tortured reading of the Constitution,” Lee told the Deseret News in a statement. “To embrace it would dangerously undermine the First Amendment and — if true — disqualify a veritable flotilla of Democratic politicians from ever holding office again.”
The 14th Amendment was ratified in 1868, and its Section 3, or Disqualification Clause, bars someone from holding civil or military office if they took an oath to the Constitution then “engaged in insurrection or rebellion ... or (gave) aid or comfort to the enemies thereof.”
A paper published online in the University of Pennsylvania Law Review earlier this month by University of Chicago Law School Professor William Baude and University of St. Thomas School of Law Professor Michael Paulsen argued Section 3 applies to Trump and disqualifies him from office. Former Arkansas Gov. Asa Hutchinson mentioned the theory during the Republican presidential debate.
Lee said he disagrees “for essentially the same reasons articulated by Professor John Yoo,” a professor of law at the University of California at Berkeley and fellow at the Claremont Institute’s Center for the American Way of Life, in his article for the Federalist with Robert Delahunty.
The authors write that although the text of Section 3 “contains nothing limiting it to the Civil War” it does distinguish between “rebellion” and “insurrection.” Under the definitions of the terms in 1863 Supreme Court cases, they argue Trump “may have been an ‘insurrectionist’ but not a ‘rebel,’” and they question whether Trump is even an insurrectionist because the Justice Department didn’t recommend charges and the Senate voted to acquit.
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“If it were clear that Trump engaged in insurrection, the Justice Department should have acted on the Jan. 6 Committee’s referral for prosecution on that charge,” they write. “Special Counsel Jack Smith should have indicted him for insurrection or seditious conspiracy, which remain federal crimes. If it were obvious that Trump had committed insurrection, Congress should have convicted him in the two weeks between Jan. 6 and Inauguration Day. Instead, the House impeached Trump for indictment to insurrection but the Senate acquitted him.”
Lee was one of 43 Senate Republicans who voted not guilty to Trump’s second impeachment, for incitement of insurrection.
Arizona’s Democratic Secretary of State Adrian Fontes said Trump can’t be disqualified from the ballot in his state because of a recent Arizona Supreme Court decision that Congress alone can enforce the Disqualification Clause.
Fontes told the Arizona Republic he believes the court’s decision was “dead, flat wrong,” but because it’s law, he has to follow it.
The court’s decision order was from a 2022 suit brought by the group Free Speech for People, seeking to prevent Arizona Republicans Reps. Andy Biggs and Paul Gosar and former Secretary of State candidate Mark Finchem from appearing on the ballot because of their roles connected to attempts to overturn the election on Jan. 6, 2021, by using Section 3 of the 14th Amendment.
The court said it found the candidates were not disqualified from the ballot after a lower court ruled “Congress has not created a civil practice right of action to enforce the Disqualification Clause.”
