Trump Might Leap An Indictment Hurdle In His 2024 Run But Still Hit A Constitutional Wall

Former President Donald Trump has been indicted by a Manhattan grand jury in a case that appears to center on the payment of hush money to an adult film star in 2016.
Former President Donald Trump has been indicted by a Manhattan grand jury in a case that appears to center on the payment of hush money to an adult film star in 2016.

Former President Donald Trump has been indicted by a Manhattan grand jury in a case that appears to center on the payment of hush money to an adult film star in 2016.

As political pundits and the public contemplate the impact of Donald Trump’s indictment by a Manhattan grand jury ― and other expected and deserved accountability ― on the former president’s political prospects, it is important to remember that Trump is already disqualified from serving in office under Section 3 of the 14th Amendment to the Constitution. 

Though it would be unprecedented for a nominee of a major political party to be under indictment in multiple jurisdictions or for a sitting president to take the oath of office from a jail cell, it is technically possible. Enforcing the Constitution against Trump for his central role in the Jan. 6, 2021, insurrection is the only way to provide clarity amid that potential for chaos ― it’s also the right thing to do, and it’s legally required by the Constitution. 

Trump’s career could be defined by the number of legal challenges he has faced throughout the years for potentially illegal conduct, including being sued by the Justice Department in the 1970s for racial discrimination at his New York housing developments, a pending federal lawsuit arising from allegations that Trump raped a woman in the 1990s and two impeachment votes while he served as president. The recent investigation by Manhattan District Attorney Alvin Bragg into financial dealings while he was a candidate in 2016, as well as his expected indictment in Georgia in a probe of 2020 election interference and possible indictments over his role in the U.S. Capitol riot and the mishandling of classified documents, have led many to question whether Trump can run while under indictment or serve as president if he’s a convicted felon. 

Despite Trump’s escalating risk of legal jeopardy and incarceration, he has, unsurprisingly, vowed to continue running for president even if he’s charged with a crime. Legal experts have opined that nothing would legally prevent Trump from being a candidate or even serving as president while facing a criminal indictment or conviction. Former Harvard law professor Alan Dershowitz has even suggested that Trump could serve as president from prison. Given the longstanding systemic injustices in our legal system, there are many reasons why a criminal indictment or conviction should not be an absolute bar to serving in government office and should be a decision left to voters. But for candidate Donald Trump specifically, this is not a relevant question, as he is already constitutionally disqualified from serving as president or in any other government office based on his role in inciting the Jan. 6 insurrection.

Section 3 of the 14th Amendment to the Constitution, also known as the Disqualification Clause, explicitly bars any person from holding federal or state office who took an “oath… to support the Constitution of the United States” as a federal officer and then “engaged in insurrection or rebellion” or gave “aid or comfort” to insurrectionists, unless Congress removes the disqualification by a two-thirds vote. Nearly four years after swearing an oath to the Constitution, Trump incited an insurrection that culminated in a violent attack on Congress, numerous injuries of law enforcement officers and the deaths of at least five people. 

Unlike a criminal trial, which requires prosecutors to prove Trump’s guilt beyond a reasonable doubt, the Disqualification Clause does not require any criminal charge or conviction and requires proof by a “preponderance of the evidence” ― the standard used in any civil case, which means more likely than not. There is ample evidence that this standard has already been met. Trump was impeached by a bipartisan majority in the House, and a bipartisan majority of senators voted to convict him of the charges, though they fell short of the two-thirds vote required. Republicans and Democrats alike have referred to the attack on the Capitol as an “insurrection,” including Trump’s own impeachment lawyers. So have more than a dozen federal courts.

Trump’s disqualification is also supported by legal precedents from the aftermath of the Civil War, when the 14th Amendment was ratified. During this period, statecourts and Congress enforced the Disqualification Clause against officials who were convicted of no crime and who played far less substantial roles in an insurrection than did Donald Trump, who the bipartisan Jan. 6 House select committee found was the “central cause” of the attack by his supporters, who had been led to believe the 2020 election had been “stolen” from him.

More recently, in September, a New Mexico judge removed Otero County Commissioner Couy Griffin from office under the 14th Amendment following a lawsuit brought by three New Mexico residents represented by my organization, Citizens for Responsibility and Ethics in Washington. The court ruled that the Jan. 6 attack was an insurrection and that Griffin’s participation in it ― as a grassroots mobilizer and member of Trump’s mob ― disqualified him under the Constitution. The decision marked the first time since 1869 that a court has disqualified a public official under the Disqualification Clause, and the first time that any court has ruled the events of Jan. 6, 2021, to be an insurrection. The historical evidence and this modern precedent make clear that this type of litigation is a viable mechanism to hold insurrectionists like Trump accountable. 

The Constitution enumerates very few qualifications for serving as president of the United States. Nothing in the document suggests that being under indictment or a convicted felon is by itself disqualifying. Given Trump’s escalating criminal exposure, it is not surprising this question has been raised. But we cannot ignore the legal reality that Trump’s responsibility for an insurrection against the United States means that he is disqualified from serving as president. Section 3 of the 14th Amendment is a clear mechanism to avoid the inevitable chaos that would ensue if he is nominated or elected as president while on trial for or convicted of criminal conduct.