Former president Donald Trump’s audacious claim of weaponization of the justice system by the government against him has been a potent albeit mendacious claim that has certainly found its mark.
The twice impeached ex-president has invoked this narrative all the way to GOP presidential frontrunner status since the first indictment was lodged against him in Manhattan. Four criminal indictments and 91 counts later, the Teflon politican finds his tale of weaponization has come to fruition.
This time, however, it is not the government or progressive liberals, as Trump likes to audaciously claim, that are seeking to take down the accused insurrectionist. This time, it is conservatives and one-time republican supporters of Donald Trump readying their aim directly at the ex-president.
These supporters-turned-critics are hoping a statute from a by-gone era finds its mark to prohibit Donald Trump’s name from appearing on the ballot in next year’s election.
Conservative law professors William Baude and Michael Stokes Paulson, affiliated with the Federalist Society–an American conservative and libertarian legal organization that advocates for a textualist and originalist interpretation of the U.S. Constitution–stunned legal and political observers when arguing in a law review article that Trump, due to his actions surrounding Jan. 6, does not qualify to serve as president.
The authors conclude that Trump could be rendered ineligible “by every official, state or federal, who judges qualifications…” The idea quickly gained momentum when a follow-up article appeared in The Atlantic titled, “The Constitution Prohibits Trump from Ever Being President Again.”
That article was penned by retired federal judge, J. Michael Luttig, a Bush 43 appointee and noted conservative jurist and Harvard law professor emeritus, Lawrence Tribe. These legal tomes, combined, set off an avalanche of cascading lawsuits across 12 states to keep the former Commander-in-Chief off the ballot in next year’s election. Equally shocking, some of these efforts are being led by members of Trump’s own political party.
Michael Luttig, a retired federal judge who was an adviser to former Vice President Mike Pence, testifies as the House select committee investigating the Jan. 6, 2021, attack on the Capitol holds a hearing at the Capitol in Washington, Thursday, June 16, 2022. (AP Photo/Susan Walsh)
At issue is a little known provision within the 14th amendment, Section 3, ratified three years after the U.S. Civil War.
Section Three states:
“No person shall be…elector of President… or hold any office, civil or military, under the United States, who, having previously taken an oath…as an officer of the United States…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…”
Section 3 was enacted to address the deeds and actions of traitorous former confederates and prevent them from regaining power. There has never been a time in the modern era where the provision was used successfully to stop or bar an individual from serving in federal office. Now, secretaries of state from across the country are grappling with how to address this potential constitutional crisis.
A former Trump supporter that was also endorsed by the ex-president is leading the charge in bellwether New Hampshire. Former New Hampshire Republican Senate candidate Bryant Messner, a self-described “constitutional conservative,” plans to challenge Donald Trump’s appearance on the ballot in New Hampshire when the filing period opens.
The Granite State will be one of the first to cast ballots determining its GOP nominee in early 2024. It is also a battleground state that both political parties will aggressively vie for in the general election.
Messner stated: “So, my position is let’s find a way for this to get into the court system as soon as possible. And then hopefully we can expedite through the legal system, to get it to the Supreme Court as soon as possible.”
Many legal experts believe invoking the 14th amendment is a long shot. They point to a lack of clarity in federal and state laws on how to prevent someone from serving under the 14th amendment. Additionally, none of the crimes currently facing Trump allege sedition or rebellion, which some legal scholars believe makes it harder to argue the provision applies to the ex-president.
Others point out that because he was acquitted in the Senate of “incitement of insurrection” by a vote of 57-43 following impeachment by the Democratic-led House in 2021 make this novel challenge out of reach.
Still, the Trump campaign is not taking any chances. In a letter to David Scanlan, the Secretary of State of New Hampshire, signed by a coterie of republican officeholders, the Trump campaign wrote:
“There is no legal basis for these claims to hold up in any legitimate court of law…The opinions of those perpetuating this fraud against the will of the people are nothing more than a blatant attempt to affront democracy and disenfranchise all voters and the former President.”
In another partisan twist of fate, a GOP election lawyer, with previous ties to three of the Republican campaigns vying for the presidential nomination, joined the effort to prohibit Trump’s name from appearing on the ballot in 2024.
Jason Torchinsky, a partner with a Virginia-based law firm, is meeting with fellow Republicans and Democrats to explore using the 14th Amendment to disqualify the criminal defendant from holding office.
Attorney Jason Torchinsky argues during a hearing in Sacramento Superior Court, Wednesday, Oct. 31, 2012 (AP Photo/Rich Pedroncelli)
Many believe this is an issue that will ultimately be decided by the Supreme Court. Until then, in an election that is expected to be won by the thinnest of margins, one battleground state is all it takes to decide this novel argument has merit and tip the political scales in an outcome unfavourable to Trump.
Adding to the cavalcade of challenges to Trump’s ballot presence, a liberal group filed a lawsuit to block the mercurial republican presidential frontrunner from the 2024 presidential ballot in Minnesota. This is the second lawsuit of its kind in as many weeks seeking to disqualify the ex-president on the basis of his actions surrounding Jan. 6.
The ex-president has used the “weaponization of the government” narrative as a cudgel against his opponents and as fuel to energize his supporters. Trump’s opponents have revealed themselves and the threat to his candidacy grows more immediate.
No longer just imaginary enemies but a growing cadre of republicans steeped in conservative values. The threat now looms from within the ex-president’s own ranks. Using a dusted off relic from another fraught period in the nation’s history. Honing it; sharpening it; hoping it will end Trump’s foray into American politics once and for all. Much like the series of potential jury trials that await Trump in 2024, all it takes is just one.
Eric Ham is a bestselling author and former congressional staffer in the U.S. Congress. He served as a contributor to TheHill.com and The Washington Diplomat. He resides in Washington, DC.