UPDATE (7:23 p.m. ET, Sept. 1, 2023): This post has been updated to clarify the distinction between state and federal proceedings. A statement from the group Free Speech For People, which plans to challenge Donald Trump’s eligibility for office, has also been added.
The 14th Amendment bars people from office who swore to support the Constitution but then “engaged in insurrection or rebellion” or gave “aid or comfort” to the country’s enemies. The notion that this ban applies to Donald Trump has picked up steam with recent support from conservative legal scholars.
The question, then, is how to test out the idea. One answer, of course, is lawsuits. A suit challenging Trump’s eligibility was already rejected on Thursday. But that doesn’t mean others can’t succeed.
Here’s why.
The Florida case, Caplan v. Trump, was brought by individuals who claimed they’d suffer injury if Trump ran for president and prevailed when he could be disqualified or removed from office.
“However,” U.S. District Judge Robin Rosenberg wrote in dismissing the suit, “an individual citizen does not have standing to challenge whether another individual is qualified to hold public office.”
Just because this one suit from Florida was dismissed doesn’t mean Trump is eligible for office.
She pointed to a similarly failed effort against Barack Obama’s eligibility in 2008, stemming from the Trump-backed “birther“ conspiracy theory that Obama wasn’t a citizen. Rosenberg, an Obama appointee, noted the attempt was also rejected on standing grounds. The individual in that case couldn’t prove a unique injury they themselves would suffer.
The lesson of Thursday’s rejection being: People can’t bring lawsuits complaining about things generally. To have legal standing, they need to show something specific at stake that can be solved by the lawsuit they’re bringing. Though the Supreme Court has been … flexible, let’s say, about finding standing when it wants to get to the merits of a dispute, the fact remains that individuals will have a hard time challenging candidates’ eligibility, at least in federal court.
But the important takeaway from Thursday’s dismissal in the Trump case is that it didn’t claim to settle the merits of his eligibility one way or the other. So it’s an outstanding question that should be settled in court as soon as possible.
And it still can be.
But who could have standing to file such a suit? Fellow candidates are one option. My MSNBC colleague Hayes Brown observed, for example, that the relatively less MAGA-ish GOP presidential candidates Chris Christie and Asa Hutchinson could (and should) file such a suit. Indeed, The New York Times reported this week on possible legal action from other Republicans ahead of New Hampshire’s first-in-the-nation primary. So just because this one suit from Florida was dismissed doesn’t mean Trump is eligible for office. It just means the right suit hasn’t reached the courts yet. And despite the federal court rejection Thursday, the right suit could still come from voters. The group Free Speech For People emphasizes the distinction between state proceedings and federal ones. The group wants to challenge Trump’s eligibility using state procedures and isn’t surprised the suit was rejected in Florida, given the stricter rules that apply in federal court. Here’s what the group said in a statement Friday: Free Speech For People plans to challenge Trump’s eligibility for office in multiple states using state candidate eligibility challenge procedures. These procedures, which are well-known to election lawyers, specifically allow voters to challenge candidate eligibility. This ruling, based on the limited jurisdiction of the federal courts, has no impact whatsoever on Trump’s eligibility for office or Free Speech For People’s planned challenges under state candidate eligibility challenge processes that are designed for this purpose.
However the issue is resolved, the country deserves a clear answer. And it just might get one yet.
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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