Lawsuits are pending around the country to keep Donald Trump off the presidential ballot under the 14th Amendment. Section 3 of the amendment bars anyone from office who has taken an oath to support the U.S. Constitution but then has “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”
We don’t yet know how these suits will turn out.
On Monday, The Washington Post’s editorial board published a piece that was skeptical of using the amendment against the former president — and, if one unspools the piece’s implications, it’s effectively skeptical of the amendment itself.
Whatever the answer is as far as Trump’s eligibility, one needn’t have been a federal judge to see some clear flaws in the editorial. But, as it happens, J. Michael Luttig — the retired federal judge and Trump-era truth–teller — has weighed in, and he isn’t impressed.
In fact, in a thread on X, the George H.W. Bush appointee and conservative stalwart called it “perhaps the most journalistically incompetent and irresponsible editorial on the Constitution of the United States and a question of constitutional law by a major national newspaper that I ever remember reading.”
This editorial today by @washingtonpost is perhaps the most journalistically incompetent and irresponsible editorial on the Constitution of the United States and a question of constitutional law by a major national newspaper that I ever remember reading.
— @judgeluttig (@judgeluttig) October 2, 2023
Among many things he found lacking, Luttig, who famously advised then-Vice President Mike Pence that he couldn’t overturn Trump’s 2020 election loss, took issue with the statement that “banking on an arcane paragraph to protect the country from a second Trump term would be foolish.”
(Note: Section 3 of the Fourteenth Amdt. is, in the WP's opinion, an "arcane paragraph" of the Constitution of the United States, presumably best ignored, and then note the conspicuous omission of the word "Constitution" from anywhere at all in this damning editorial paragraph.) Luttig went on to criticize what he called the paper’s “buried cynical lede in the concluding paragraph,” which reads: The disputes that invoking Section 3 of the 14th Amendment would elicit would almost certainly make their way to the Supreme Court — where the chances of Mr. Trump’s disqualification being affirmed seem low. The public would be better off pursuing a more straightforward route to keeping the former president out of the Oval Office: voting.
It’s true, as Luttig points out, that there isn’t much of an argument backing up that conclusion. Indeed, the piece discounts, at least implicitly, that one could pursue 14th Amendment disqualification and also seek to stop Trump through voting. Of course, it’s not an either/or proposition. Ultimately, and notwithstanding the courts’ unduly outsize role in resolving crucial questions like these, both the editorial and Luttig’s response underscore the importance of the question getting to the justices, for better or worse, and sooner rather than later.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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