As reported by the House Jan. 6 committee and others, former President Donald Trump engaged in behavior that should disqualify him not only from the presidency, but also from any position in a government he sought to destroy from within.
When the president sees the Constitution as an impediment, not something to be protected, he shouldn’t be given the public’s trust.
And yet, it isn’t clear that Trump is legally disqualified from once again being president of the United States. This is in part because the Constitution simply doesn’t give us sufficient guidance in this area — perhaps because the drafters may not have thought we would ever need this guidance, given how obvious it seems.
At the last meeting of the Jan. 6 committee, and in media appearances after the meeting, members said Trump is disqualified under the Constitution from once again holding federal office. But the truth is that, at best, this is an open legal question.
The House Jan. 6 committee will release its full report on Wednesday, Dec. 21. Follow our live blog beginning at 10 a.m. ET for expert analysis in real time at msnbc.com/jan6report.
When Rep. Jamie Raskin, D-Md., and others say Trump is constitutionally disqualified from being the president, they’re referring to Section 3 of the 14th Amendment, which was ratified in 1868. Section 3 provides, in part, that no one can hold “an office” in the U.S. if that person has “engaged in insurrection or rebellion” against the U.S. “or given aid or comfort” to those who did. The drafters of the 14th Amendment wanted to restrict former Confederates’ ability to serve in government.
The only thing that is clear about Section 3 of the 14th Amendment is that it evidences a serious concern that those who sought to undermine our government would later seek to serve in it. This, of course, is exactly what Trump has done.
It is frankly shocking that we are having this conversation at all. The former president was impeached twice (a historic first), he lied over and over again, and he attempted a self-coup. I’ve seen enough, and you have, too.
Yet the law doesn’t give us the answer to every question, and it shouldn’t have to. When the president sees the Constitution as an impediment, not something to be protected, he shouldn’t be given the public’s trust.
This part of the Constitution brings up at least three questions as they relate to former president and current candidate Trump. The initial question is whether this provision even covers the president, because the section specifically mentions senators, members of Congress and electors for the president and the vice president, but not the office of the president.
Let’s assume for the sake of argument that it does. For obvious reasons, if we don’t want someone who engaged in an insurrection to serve as a senator, we probably don’t want that person to be the president, either.
Assuming that a part of the Constitution that says people who engage in an insurrection or give aid or comfort to those who do covers the presidency, the next question is: Who enforces this section? It’s possible that Congress could try to implement Section 3 of the 14th Amendment by passing new legislation, but there are legal land mines here, as well. A proposal is pending in the House, where it seems destined to expire before Republicans take over the chamber.
And third, what exactly does the section require? Must Trump be convicted of engaging in an insurrection or giving aid or comfort to those who do before he is subject to this provision? Or is it enough if whoever enforces the provision concludes that he did so? When members of Congress and others say Trump is constitutionally disqualified from holding office again, what they really should say instead is that Trump should be disqualified from being the next president. One would be correct to ask whether existing legislation could answer some of these questions. As we know, there is a federal criminal statute that punishes those who engage in an insurrection or give aid or comfort to those who do. And that statute similarly provides that people who are convicted under it “shall be incapable of holding any office under the United States.” This sounds like it answers a good deal of our questions. But the big hurdle here is that it is the Constitution, not a federal statute, that lays out the exclusive qualifications for the presidency. As long as Trump was born in this country, is over 35 years old, has lived in this country for more than 14 years and hasn’t already served eight years as president, he is most likely free to be a candidate for the presidency. We do have a little guidance on this issue. In 1969, the Supreme Court ruled that an elected member of the House couldn’t be excluded by a vote of his congressional colleagues when he otherwise met the constitutional requirements for the office. The high court suggested that Congress can’t add statutory requirements to constitutional qualifications. In sum, when members of Congress and others say Trump is constitutionally disqualified from holding office again, what they really should say instead is that Trump should be disqualified from being the next president. Our Constitution doesn’t, and can’t, answer every question our country will face. We might forgive the drafters of our Constitution for perhaps assuming that the American voters wouldn’t want to sign their own death warrants and elect a leader who would lead us into authoritarianism. For now, the best way to ensure that Trump is the former, and not the future, president is to vote for someone else.
Jessica Levinson is a Loyola Law School professor and MSNBC columnist. 
