Trump Disqualified to Run: The Bigger Trump Trials — On Live TV
There is intense focus upon the upcoming criminal trials of former President Trump. However, there will be other courtroom dramas, that are critically important to the nation, involving his legal qualification to be a presidential candidate. If Trump is the Republican nominee but not qualified to serve as president because of a provision in the 14th Amendment to the U.S. Constitution, his name must be stricken from the ballot. This article addresses how we’ll likely see this issue evolve — as an international TV and streaming sensation.
If the publicly known evidence is true, Trump is disqualified from holding any government office in the U.S., including, of course, the presidency. Section 3 of the Fourteenth Amendment to the U.S. Constitution requires that result, as brilliantly explored and explained in an upcoming law review article by two prominent conservative legal scholars, William Baude and Michael Stokes Paulsen. The ban in Section 3 applies to anyone who has taken an oath to serve and has subsequently “. . . engaged in insurrection or rebellion against the [federal or state government] or given aid or comfort to the enemies thereof.”
The 124-page Baude and Paulsen journal article is entitled “The Sweep and Force of Section Three.”[1] The authors explore the history and meaning of Section 3 and how it applies to Trump. They forcefully conclude, as a matter of constitutional law, that he is forever barred from holding the office of President of the United States or any other federal or state office.
In a recent piece in the Atlantic, the highly regarded and conservative former U.S. Court of Appeals judge J. Michael Luttig and renowned former Harvard law professor Lawrence Tribe fully concur as to the reasoning and conclusions in the Baude & Paulsen article.
However, all four authors didn’t write about the mechanics of how Section 3 could be enforced. What would the public learn — and indeed see and hear — about efforts to strike Trump from the ballot in a state? Would the proceedings be a flurry of legal briefs filed in court with the media seeking to explain the complexities? Would there be televised evidentiary hearings before state administrative agencies? Would there be jury trials in state or federal courts — either on or off camera?
This article explores several likely scenarios, under two main categories. The first I will call the Big New Trials Scenarios and the second will be referred to as the Criminal Proof Scenario.
The Big New Trials Scenarios
In both of the articles cited above, the authors explain that Section 3 is “self-executing,” meaning that it can be implemented by a state government official or body charged with the responsibility of determining who is qualified to be on the ballot in a presidential election. No legislative or court action is required. The bottom line: if Trump receives the Republican party’s nomination, state officials who hold the power can refuse to list his name on the ballot. Conversely, he could be listed and then a challenge mounted to have his name removed. In either event, if his name does not appear, he could not accumulate votes and thus any Electors for the Electoral College.
Realistically, it is unlikely that a state would ceremoniously strike Trump’s name without affording him due process. Indeed, Jocelyn Benson, the Secretary of State in Michigan, has publicly stated that her office will be studying carefully how the issue should be addressed, the due process that Trump will be afforded and the rules under which she will operate. Thus, it seems that she will not wait until a person makes a request that he be disqualified; proceedings will be started on her own initiative. She also made clear that she will be conferring with the Secretaries of State in Pennsylvania, Nevada and Georgia to discuss a unified approach.
To be sure, there will be many Republican controlled states that will routinely list Trump’s name on the ballot without consideration of the 14th Amendment issue. In those instances, prior to suing in a court of law, a petitioner often is required to file and comence proceedings before the relevant administrative agency or board (a process known as “exhaustion of administrative remedies”). If the petitioner disagrees with the ultimate decision, a lawsuit could be filed in a court, challenging the decision, and asking that it be overturned. One can only imagine multiple proceedings and multiple lawsuits in the States and federal court that would ultimately make their way up to the United States Supreme Court.
Let’s use the Commonwealth of Virginia as an example as to how things could play out. Virginia has a State Board of Elections that oversees a Department of Elections run by the Commissioner of Elections. Pursuant to the Commonwealth’s election law “Only a person fulfilling all the requirements of a candidate shall have his name printed on the ballot for the election.” The Board has the ultimate authority to determine the names to appear on the ballot. The Board has five members who are appointed by the Governor, to be drawn from both political parties. The majority of its members, however, are required to be from the party that had the most votes for Governor in the immediately preceding election.
Would a bipartisan Board in Virginia vote to exclude Trump from the ballot? Upon what factual basis would they do so? The Board would need to follow the procedures for rendering such decisions. Under Virginia’s Administrative Procedures Act, there is an option for an “informal conference or consultation proceedings” and ultimately, likely a formal hearing (“the agency shall afford opportunity for the formal taking of evidence upon relevant fact issues . . . .”).[2] Thus, if the Board was petitioned with a request to strike Trump’s name or a petition to list his name, they would likely need to conduct an evidentiary hearing, with notice to all interested parties.
In either event, what would such a hearing look like? In my view, it would need to be a full-blown trial, i.e., testimony of witnesses and the introduction of documents, text messages and emails. Interestingly, if Trump or someone on his behalf was fighting to get his name on the ballot because the state refused to list him or it had been stricken, the burden at the hearing could be his; meaning he would have to prove that he did not commit insurrection or rebellion or give aid or comfort to enemies of the federal government.
Baude and Paulsen casually mentioned in their article that the Select January 6th Committee Final Report (Report) contains ample proof in support of an application to disqualify Trump from office. They also blithely mentioned that members of Congress have stated that Trump engaged in insurrection. However, one cannot simply plop the Report down on a table or quote a politician and claim that your case is proven. There will be rules of evidence in any such hearing, and the Report is not admissible evidence; it is itself hearsay and contains other hearsay. Transcripts of congressional proceedings, which are hearsay, would typically be inadmissible in a court of law against a party who did not have the opportunity to exercise her 6th Amendment right to confront and cross examine the witnesses. The hearings were not adversarial legal proceedings. It is unimaginable that an agency would take such proof to be used as a basis for fact-finding on a claim of disqualification.
To reach a credible and valid decision, the Board would need to entertain live, admissible evidence (testimony and exhibits) in support of the allegation that Trump engaged in insurrection or rebellion or gave aid or comfort to the enemies of the federal government. And that means a full-blown Big New Trial: an adversarial and evidentiary proceeding before the relevant board or agency. That proceeding would look and feel like a jury trial, except that the ultimate decision makers would be the members of a board or the decision makers in a state agency.
The Criminal Proof Scenario
If the criminal trials of the federal January 6 case and/or the Georgia January 6 case were to conclude by late Spring or early Summer of 2024, a petitioner could argue to an administrative agency that the publicly available evidence from those trials would be competent and admissible evidence in a disqualification proceeding. The difference here is that the evidence from those trials would have been developed in an adversarial proceeding where Trump was represented by counsel who had the opportunity to confront and cross-examine witnesses and to challenge the admissibility of any of the physical evidence that was part of the record at the trial. If the witnesses are “available” to testify (under state evidentiary rules), it would likely be a discretionary call by the board or agency as to whether witnesses will need to appear in person to testify.
Surprisingly, it doesn’t matter whether Trump is convicted or acquitted at those trials, in terms of using the evidence for these other purposes. If the testimony and exhibits align with the elements of insurrection or rebellion, or aid or comfort to enemies of the federal government, then it should be considered by the state agency or board in support of a petition to disqualify. Even if trump is criminally convicted, juries don’t write up a list of facts that they have determined to be true. They only fill out a verdict sheet indicating “guilty” or “not guilty” as to the criminal charges presented. Thus, criminal conviction is irrelevant in terms of marshaling the facts needed for disqualification. The only issue is whether the evidence amounts to insurrection or rebellion, or aid or comfort to enemies of the federal government.
If the proof from the criminal trials is accepted by a state board or agency to comprise all or part of the record, Trump would likely still be given additional opportunities to call other witnesses or submit other exhibits, because the issues could be slightly different than in the criminal trials. The authors of the two articles cited above argue that there is complete overlap concerning the proof in support of the crimes charged and the proof needed under Section 3. I agree, but in an exercise of caution, Trump would likely be given opportunities to supplement the record.
These scenarios — one or both — are likely to play out in many of the States. There will undoubtedly be requests by the media for the proceedings to be televised. Such requests are likely to be granted. Get out your popcorn.
[1] The Sweep and Force of Section Three, 172 U. PA. L. REV. (forthcoming 2024. William Baude & Michael Stokes Paulsen. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4532751
[2] Virginia law is silent as to whether a Board hearing is expressly required concerning the issue of a candidate’s right to be listed on a ballot. Thus, it is possible that a petitioner could go straight to a court. In such an event, a full-blown trial would still need to be conducted, for the reasons stated in this article. Other states may explicitly require a hearing on this issue and thus, in any such state, an administrative evidentiary hearing would be the first route to a determination of disqualification.
