This is Bloomberg Law with June Brusso from Bloomberg Radio. Donald Trump is facing four criminal trials, two over his efforts to overturn the twenty twenty election, with the federal charges specifically accusing him of conspiring to obstruct the congressional confirmation of Joe Biden's victory on January sixth. Despite that, Trump remains far and away the front runner for the
Republican presidential nomination. But now the former president is facing a different legal battle that could sideline him an effort to keep him off the ballot. Prominent liberal and conservative scholars are increasingly raising a constitutional argument that Trump's actions on January sixth disqualify him under Section three of the fourteenth Amendment, which bars people from holding office if they took an oath to support the Constitution and later engaged
in insurrection or rebellion. My guest is one of those liberal scholars, Professor Lawrence Tribe of Harvard Law School. He's written an article in the Atlantic with former federal judge Michael Ludig entitled the Constitution prohibits Trump from ever being President again. For those who haven't heard about the Fourteenth Amendment's disqualification clause. Will you explain it and its relevance to trump?
Sure? After the Civil War, the framers of the Fourteenth Amendment, which was one of the main provisions that basically restructured the Constitution and made it possible for the Confederate States to rejoin the Union after the Civil War, the framers of the Fourteenth Amendment wanted to protect against anyone in the future who would take an oath to support the Constitution and then turn their back on it and engage in basically treason against the Republic by or engaging in,
or giving aid and comfort to an insurrection against the Constitution of the United States. And so there was a very explicit provision written into the Fourteenth Amendment, which became part of the Constitution in eighteen sixty eight, saying that anyone like that could never again hold office any office in the United States, not just president, but you know, anything down to dogcatcher. However, that disability could be lifted by a two thirds vote of both houses of Congress,
so that was a safeguard against this being abused. This hasn't been used very often since the Civil War, but that's because we haven't had very many people who've taken an oath to the Constitution and then basically made war on the Constitution itself by doing the kind of thing that many people believe Donald Trump did, namely encouraging an insurrection, trying to have fake ballots, the whole nine yards, basically trying to undo the Constitution's main sort of the beating
heart of the Constitution, the part that is guaranteed from the beginning of the Republic that we would transfer power peacefully from one president to the next. The Civil War was one kind of insurrection. What happened on the lead
up to January sixth was another. And so a number of people around the country, including a very conservative former federal judge, Judge Michael Lutig, and I have been writing about this constitutional provision, which many people think, including us, applies like a glove to Donald J. Trump, and whether that his story is not going to keep him off the ballot is something that's being teed up for litigation all around the country.
So Trump is facing two criminal trials over his efforts to overturn the election results. Some people might say we should wait to see if he's convicted before we see if he falls under Section three.
Yeah, that would be a big mistake because this section has nothing to do with punishing someone for crimes. In fact, one of the main reasons that it was written was the recognition that the president at the time, Andrew Johnson, wasn't about to have a Justice Department prosecute anyone for anything that was related to the attempt to overturn the Constitution of the United States. He, in fact, Johnson pardoned insurrectionists.
So they wanted a provision that was quite independent of criminal prosecution or of civil suits, that would operate directly to disqualify anyone who took an oath and then engaged in or gave aid and comfort to an insurrection against
the Constitution. So whatever happens in these criminal trials, which are very important in terms of holding various people, not just Donald Trump, but the eighteen others that Manny Willis has indicted under the Rico statu or the unindicted co conspirators, many of whom may end up being indicted by jack Smith, whatever happens to them has to do with whether they spend years in prison or not, not on whether they
can again hold power. That's a different matter. This disqualification therefore has nothing to do with the pending criminal proceedings.
Is it a problem or concern that several judgment calls have to be made on this issue that there's no clear authority on and it's still being debated. For example, does Congress have to pass a law to enforce the ban?
So it's pretty clear to me and the judge Looting, and to the conservative scholars who have written a major piece about this, but Congress needn't pass the law to enforce it. It's simply self enforcing in the sense that anyone who engages in an insurrection after taking an oath or gives aid and comfort to it disqualified. That doesn't mean that it kind of leaps up off the page and points directly to Donald Trump or Rudy Giuliani or
anybody else. It does have to be applied, and that's why there are lawsuits that are being planned as we speak, lawsuits against various secretaries of States and other lawsuits saying that in the discharge of their responsibility to decide who is on the ballot, they need to conduct hearings on whether indeed Donald Trump did what it appears that he did, namely engage in or give aid and comfort to an insurrection that won't happen without hearings. Those hearings are to
be independently important, valuable, educational. Hopefully they'll be tried on television. They're not criminal trials. The y to be evidentiary hearings to determine the kind of thing that the January sixth Committee determined, and to determine who was engaged in this interaction and who is disqualified.
I know a Florida lawyer last week filed one of the first challenges to Trump running under the fourteenth Amendment. He said it was your analysis and Judge LUDIGX that convinced him. On Monday, a Michigan resident file the challenge there.
So sorry to interrupt sure that lawsuit. I mean, it's very nice that he says Judge Lutig and I persuaded him. But he doesn't really have any obvious standing in that case. He says that he's injured because he voted ever since he was eighteen. Well, I entitle him to sue Donald Trump. As far as I can tell. It's competitors to Donald Trump who might sue. And in some states the voters have standing to bring lawsuits against the Secretary of State to get an injunction to order the Secretary of State
to conduct the proceeding to decide who is disqualified. Those are the suits that I would watch more seriously.
Free speech for people is sending letters to secretaries of state asking them to Bartrump from the ballot, and actually including draft language for a declaration that could be used to exclude him from primary ballots. Do you see that as a way to go to appeal to secretaries of states?
It seems to me that's a first step that is either free speech for people or some other group could even be Chris Christie or Asa Hutchinson could ask secretaries of state in states whose laws provide for this to conduct proceedings to decide whether or not Donald Trump is eligible to vote. I think simply asking the secretary of State to make a declaration may be a little bit
short circling what should happen. It seems to me that secretaries of state should be asked to make a determination, which may involve taking evidence and conducting hearings and then declaring their conclusion.
So you write that these disqualification efforts will naturally lead to the courts and there'll be conflicting rulings. So will this necessarily end at the Supreme Court with its super conservative majority.
I think that's very likely, and that's why I've said in many contexts that this will be quite a test for the Supreme Court whether it is going to be influenced beyond the law and beyond reason by its conservative inclinations. Conservative in a partisan sense, Conservatives like Judge Loutig, and like professors Bodie and Paulson who wrote the blockbuster article that's coming out soon explaining why this provision means what it says, Their conservatism leads them to say that Donald
Trump is disqualified. A lot of people worry me among them that some of the conservatives on the current court are not as principled as we would like. And so I certainly wouldn't bet a great deal on the Court doing what I think the law requires it to do in this situation. So the ultimate outcome of these efforts may be to educate the public and to focus on the degree to which Donald Trump cannot be trusted to
enforce the constitution and preserve democracy. That may be the principal effect, whether it keeps him off the ballot, in the long run, and the ultimate confrontation with the incumbent president is a different matter and harder to predict.
Timing seems to be a problem. There's limited time. Do you think that this can get to the Supreme Court before the primaries are over?
Well, I think there's a very good chance it will. Thingings can move very quickly through the courts. When the courts see that they will become moot unless something is done. I mean, it would be quite a disaster for the nominee of a major political party to be running at a time when the primaries are over, the convention is over, and then there is litigation over whether that person needs to be taken off the ballot because of a constitutional disability.
That's not the right time to do it. The right time to do it is before the convention.
In your article, you mentioned the concerns of former federal judge and Stanford law professor Michael McConnell, who's written that empowering partiesan politicians such as state secretaries of state to disqualify their political opponents from the ballot deprives voters of electing candidates of their choice, and if abused, could be profoundly anti democratic. How do you answer his concerns?
Well, Judge Ludig and I have both said that he has it backwards. It's the most democratic thing of all to insist that the constitutional provision designed to protect democracy from those who would overturn it in violation of the rule of law. To ensure that that's enforced. To say that the people have a right to elect whoever they want is to ignore the fact that a lot of
people that someone might want to elect. A lot of Democrats might want to elect Barack Obama again, but under the constitution he can't run again because of the term limit. Some people might want to elect a brilliant thirty four year old, but that person is not qualified to run. Some people, I think, would like to elect, you know, someone who was not a natural born citizen, but they can't do that because someone like Janet Granholm, who's a
very impressive woman, was born in Canada. Democracy doesn't mean having your way, no matter. What means abiding by the rule of law, and certainly part of the rule of law is that those who try to shredd it the way that Donald Trump actually said that he would like to terminate the Constitution Judge Luvigno quote his language to
that effect in our article in The Atlantic. Democracy can't survive with people like that being presented as hide pipers to lead the country down at primrose paths toward terrible antidemocratic destruction.
The only time I saw that this provision in one hundred and fifty years has been used to disqualify and official was a state judge in New Mexico who removed a county commissioner from office because he participated in the January sixth attack. Is that the only time you know of two?
Well, that's the only modern time. There may be some earlier ones. Certainly when Madison Cowthorn was ruled by the Fourth Circuit to be disqualified under this provision, that became moot. So that happened fairly recently, but it became moot when he lost his re election attempt. So there are some recent efforts. But we shouldn't get distracted by how rarely
this provision has been used. It's been used rarely because we rarely have people take an oath to the Constitution and then become actively engaged in trying to overturn it.
You acknowledge in the article you and Judge Ludig that this could give rise to quote momentary social unrest and even violence. So does that mitigate against using it in our already divided country.
No, because that would give power to destroy democracy and end the rule of law. Those people who threaten violence. We have to have the courage of our convictions. We can't simply turn our backs on the constitution because some people brandish weapons and say that if you enforce it,
and you'll get a bullet in the back. I mean, that's what a lot of people are saying now in the pending proceedings criminal and civil against people like Donald Trump, and we just cannot let the terrorists have their way.
In your heart of hearts, do you think that this will just end up being instructive, as you mentioned before for Americans, or that it will actually work to stop Trump from being on the ballot.
You know, I have been so busy trying to help figure out how to do it right and what that just means that I have put away my little crystal ball. I'm not sure that it's all that accurate anyway. So I'm just I'm just plodding away one foot at a time, and I'm not going to make long term predictions.
Okay, fair enough, so I like the crystal ball a lot. Thanks so much, Professor Tribe.
Thank you, thank you.
That's Constitutional law scholar and Harvard Law professor Lawrence Tribe. And that's it for this edition of The Bloomberg Law Show. Remember you can always get the latest legal news on our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, and at www dot bloomberg dot com slash podcast Slash Law, And remember to tune into The Bloomberg Law Show every weeknight at ten pm Wall Street Time. I'm June Grosso, and you're listening to Bloomberg