Is the Supreme Court seriously going to disqualify Trump?

I'm giving it a 10% chance.

Section Three of the Fourteenth Amendment states:

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Professors Baude and Paulsen have written a much-discussed article arguing that Donald Trump is disqualified from the Presidency under Section Three. Their argument goes like this: While serving as an “officer of the United States,” i.e., the President, Trump “engaged in insurrection” against the United States on January 6, 2021, which disqualifies Trump from “hold[ing] any office, civil or military, under the United States,” including the Presidency. Baude and Paulsen further contend that Section Three can be enforced in court —in other words, the Supreme Court has the authority to rule that Trump is ineligible to be President under Section Three.

Is the Supreme Court actually going to disqualify Trump? In my opinion, probably not, but there’s a non-trivial chance that it will.

“Probably not,” “non-trivial,” that sounds weaselly. How likely is it, really?

In my view, contingent on Trump continuing to be a candidate for President, there is a 10% chance that the Supreme Court will hold, prior to the 2024 election, that Trump is constitutionally ineligible. I cannot predict the odds of Trump actually being a candidate. I have lost faith in my ability to make predictions about American politics. But if Trump stays in the race, either as the Republican nominee or as a third-party candidate, I’m pegging the odds at 10%.

That number might seem low at first glance, but it is way higher than Trump’s odds were in his many lawsuits challenging the 2020 election, for example.

How did I come up with this number?

Well, if a proponent of disqualification wants to obtain a Supreme Court decision disqualifying Trump, several things will have to happen.

1. The Supreme Court will have to take the case.

2. Once it takes the case, the Supreme Court will have to decide the merits of the Section Three challenge.

3. If the Supreme Court decides the merits, the proponent of disqualification will have to demonstrate each of the following:

   1. Section Three is justiciable.

   2. Section Three has continuing force notwithstanding amnesty statutes enacted by two-thirds majorities of Congress in 1872 and 1898.

   3. Various miscellaneous objections (e.g., the President is not an “officer of the United States”) are wrong.

   4. Trump did, in fact, engage in insurrection.

There’s lots of Single Points of Failure there. Here’s how I get to a 10% chance:

• Supreme Court never grants certiorari in a Section Three case: 30%

• Supreme Court grants certiorari in one or more Section Three cases but doesn’t resolve the merits, issue burns out in the lower courts: 30%

• Supreme Court reaches the merits of the Section Three challenge, but proponents of disqualification lose because:

  • Section Three is nonjusticiable: 1%

  • Section Three was effectively repealed in 1872 or 1898: 15%

  • Miscellaneous objections: 4%

  • Trump did not engage in insurrection: 10%

And finally:

• Trump engaged in insurrection, is disqualified from Presidency: 10%

My reasoning follows.

(This is a Cubist version of the January 6 riot, according to AI.)

The first step is always the hardest

The proponents of disqualification won’t win unless the Supreme Court takes the case.

It’s tempting to say that the Supreme Court just won’t get into this. When long-shot legal theories start bouncing around Twitter, they usually fizzle out. Wacky plaintiffs file pro se lawsuits, judges dismiss them for lack of standing, and everyone forgets about it. This is what happened, for example, with the Obama-was-born-in-Kenya theory.

This time, however might be different. Why? Because:

1. There will be lots of different challenges to Trump’s eligibility and if even one of these challenges succeeds, the Supreme Court will have to step in.

2. Trump will try to preemptively stop these challenges before they proceed too far, generating additional litigation that may reach the Supreme Court.

First, there are lots of ways to raise this issue. One option is challenges filed by random people. In federal court, such challenges would fail because the plaintiffs lack standing. That’s not necessarily the case in state court or state administrative agencies. To the contrary, such challenges have proven remarkably fruitful so far.

Consider the following three data points from 2022:

• Random people in New Mexico filed a lawsuit in state court alleging that Couy Griffin, a County Commissioner, should be removed from office under the Fourteenth Amendment based on his participation in the January 6, 2021 riots. The plaintiffs won. Read the opinion for yourself—the judge actually held that Griffin was disqualified from holding office under Section Three of the Fourteenth Amendment, and removed him from office.

• Random people in Georgia filed a candidate challenge with Brad Raffensperger, Georgia’s Secretary of State, alleging that Representative Marjorie Taylor Greene was ineligible to run for Congress under the Fourteenth Amendment based on her actions on January 6, 2021. Raffensperger referred this to an administrative law judge, who actually conducted a hearing at which Greene testified under oath for more than three hours. Greene filed a lawsuit in federal court seeking to enjoin the state proceeding, but she lost. The administrative law judge concluded, on the merits, that there was insufficient evidence that Greene engaged in insurrection.

• Random people in North Carolina filed a challenge with the North Carolina Board of Elections alleging that Representative Madison Cawthorn was ineligible to run for Congress under the Fourteenth Amendment based on his actions on January 6, 2021. The Board of Elections announced its intention to hold a hearing. Cawthorn immediately went to federal district court and sought to enjoin the state administrative proceeding. He got an injunction, but the Fourth Circuit reversed. After that, the case became moot because Cawthorn lost the Republican primary. If he had prevailed in the primary, the hearing apparently would have gone forward.

There are random people in all 50 states (not to mention D.C.) who dislike Trump enough to file a challenge with local elections officials. Not all states entertain such challenges, but some do and such challenges will be filed wherever it is possible. Even if you, reader, think such claims are a bad idea and the issue should be resolved at the ballot box, other people will disagree with that assessment and bombard local elections officials with challenges. I don’t know how many of these challenges will proceed to hearings, but a few of them probably will. I find it particularly incredible that a challenge filed by random people triggered a hearing that required Marjorie Taylor Greene to testify for over three hours on whether she is an insurrectionist, but this actually happened.

Lawsuits by random people aren’t the only way this issue could be teed up in court. A second option is candidate litigation. One of Trump’s primary opponents could file a challenge alleging that he’s harmed by the presence of an ineligible candidate on the ballot. The plaintiff would have standing to sue in federal court, although the plaintiff would face formidable procedural obstacles in such a suit; state court seems like a more likely option. A third-party candidate in the general election might also bring such a case.

(I cannot begin to predict whether President Biden would sue Trump alleging that Trump should be removed from the ballot. All I can say is that if he did, that lawsuit might actually dethrone Depp v. Heard as Most Dramatic Lawsuit Ever.)

A third option is unilateral action by state officials. This happened, for example, in Hassan v. Colorado, 495 F. App’x 947 (10th Cir. 2012). The plaintiff, Hassan, ran for President despite being born in a foreign country. The Colorado Secretary of State declared him ineligible to run for President. He sued in federal court, lost, appealed, and lost in the Tenth Circuit in an unpublished decision by then-Judge Gorsuch. The Tenth Circuit reached the merits: it held that “a state's legitimate interest in protecting the integrity and practical functioning of the political process permits it to exclude from the ballot candidates who are constitutionally prohibited from assuming office.”

Would state officials actually yank Trump from the ballot unilaterally? This depends on (a) state law, which I’m guessing is typically ambiguous on this issue, and (b) whether blue-state election officials would actually exercise their discretion to do this.

I’m guessing they wouldn’t. Unilaterally disenfranchising thousands, perhaps millions, of your own citizens is awkward. A more likely scenario is that state officials would file declaratory-judgment actions in state court seeking rulings that Trump is disqualified. Maybe they’d seek advisory opinions from the state supreme court, which are legal in some states.

If any of these challenges prevails, the Supreme Court is guaranteed to take the case. All it takes is one.

And it’s completely plausible that a challenge would prevail somewhere. There are plenty of blue-state judges who would gladly sign on to Baude and Paulsen’s analysis that Trump engaged in an insurrection. In my view, something like 5 to 10 state supreme courts would be prepared to uphold a disqualification order, and many federal judges would decline to overturn a state court’s order.

Why do I think this? To me, the Trump Section Three issue is reminiscent of the Affordable Care Act litigation in the early 2010s. After President Obama signed the Affordable Care Act into law in 2010, constitutional challenges to the Act were initially viewed as fringe theories, but they quickly entered into the mainstream and came within one vote of prevailing in the Supreme Court. How did views shift so quickly? First, although the constitutional theories were novel, the fact pattern was also novel. There was no case law suggesting that Congress couldn’t force you to eat broccoli, but Congress had never forced people to eat broccoli before either, so there was plenty of doctrinal space to construct a constitutional theory that the Affordable Care Act was unconstitutional. Second, at the time, to a much greater extent than today, the Affordable Care Act was viewed by many conservatives as malignant, as opposed to just bad public policy. Conservative-leaning lawyers were therefore predisposed to signing onto a legal theory that would require invalidating it. Third, a cycle emerged in which lawyers (and eventually judges) would endorse the constitutional challenge, which would cause it to become more mainstream, which in turn would cause more people to endorse it.

It is easy to imagine a similar dynamic emerging in the context of Section Three. It would be unprecedented to try to knock a presidential candidate off the ballot under Section Three, but Trump’s actions on January 6 were also unprecedented. Among people who strongly oppose Trump’s candidacy, hearts and minds will be open to a constitutional argument that would disqualify Trump. It’s easy to imagine the pro-disqualification position becoming mainstream very quickly with a similar type of cycle as the Affordable Care Act cycle.

Also, remember that Trump’s D.C. trial is set for March 4, 2024. This isn’t a placeholder; Judge Chutkan appears serious about this date. Trump isn’t charged with engaging in an insurrection, but he is charged with, among other things, conspiring to strip American citizens of their constitutional right to vote. If Trump is convicted (possibly following testimony from Trump), it is even easier to imagine state officials from blue states pushing to take Trump off the ballot, or at least seeking judicial clarification on this issue. And it is even easier to see judges ruling that Trump is ineligible, perhaps even granting the jury’s findings collateral estoppel effect.

It might not even take such a ruling for the Supreme Court to step in. Consider this scenario: random citizens file challenges to Trump’s eligibility in North Carolina, Georgia, and other states. The state agencies set hearings on Trump’s eligibility. Suddenly, Trump has multiple ballot eligibility hearings to contend with alongside his four felony indictments. Trump goes to federal court and seeks injunctions against these proceedings. In the Fourth Circuit, Trump loses because there’s binding circuit precedent in the Cawthorn case saying he’s not entitled to an injunction in this situation. Maybe he wins in other circuits, generating a circuit split. Maybe he loses, resulting in a spiraling mess of insurrection hearings.

If Trump petitions for certiorari, the Supreme Court would likely hear his case. The question is important, there will be constant chaos and uncertainty, and Republican primary voters won’t know whether their preferred candidate is eligible for President.

Remember, too, that there will be other Trump litigation as well. If Trump is convicted and sentenced in D.C., he will immediately appeal and file a petition for certiorari before judgment. I’m not sure whether the Supreme Court would grant certiorari before judgment or would allow for extremely truncated review in the D.C. Circuit, but either way, the Supreme Court would hear the case quickly. Trump’s other criminal and civil cases might also reach the Supreme Court around this time. In that context, it would seem less extraordinary for the Court to take on the disqualification dispute.

In summary, there are many scenarios in which the Supreme Court would have little choice but to grant certiorari in a Section Three case. With the caveat that these percentages are speculative, arbitrary, and unreliable, I am predicting that, contingent on Trump remaining a candidate for President, there is a 70% chance that the Supreme Court will hear a case about ballot eligibility.

Why do I think there is a 30% chance that the issue will fizzle out without ever reaching the Supreme Court? Exotic, fringe legal theories almost always lose. The base case is that challenges will fail and lawyers will get bored and try something else. Also, the Supreme Court will avoid this issue unless it feels it has no other choice. This is unprecedented litigation and there’s an extreme degree of uncertainty.

Standing … there’s always standing

So, the Supreme Court has granted certiorari in a Trump disqualification case. What happens next?

It could issue a dramatic, bitterly divided ruling deciding Trump’s eligibility. Or, it could not do that.

Depending on the posture of the case, there are lots of ways the Supreme Court could narrowly rule in Trump’s favor while leaving the ultimate eligibility question undecided. Examples:

• The Court could hold that the state disqualification proceedings violated a state statute. The Electors Clause provides: “Each State shall appoint, in such Manner as the Legislature thereof may direct,” a particular number of presidential electors. In his Bush v. Gore concurrence, Chief Justice Rehnquist opined that a state court’s misinterpretation of state law on an issue related to presidential elections presents a federal question. Justice Kavanaugh endorsed that view in his Moore v. Harper concurrence, writing: “Federal court review of a state court’s interpretation of state law in a federal election case should be deferential, but deference is not abdication.” It’s easy to imagine a Supreme Court decision holding that a state violated state statutory law in disqualifying Trump.

• Another option is to criticize the procedures in a state disqualification proceeding. The Court might hold, for example, that Trump didn’t have a fair opportunity to defend himself.

• In some fact patterns, the Court could hold that the proponents of disqualification lack standing. For example, in the Cawthorn litigation, Cawthorn obtained an injunction against state officials, and the state officials declined to appeal. The proponents of disqualification attempted to intervene for purposes of appealing the injunction, and the Fourth Circuit held that they had standing and were entitled to intervene. In a similar situation, the Supreme Court could hold that the proponents lack standing and the district court injunction stands.

• The Court could hold that the disqualification challenge is either too early (“it’s speculative as to whether Trump will even qualify for the ballot”) or too late (“the challengers should have brought their challenge before primary voters cast their ballots”).

• The Court could reject the reasoning of a federal appellate court without going all the way and deciding Trump’s eligibility. It could say that the federal appellate court applied the wrong legal standard for “insurrection,” or incorrectly analyzed the balance of equities, or something.

Resolving a case in this manner would be attractive for two reasons. First, any actual case that reaches the Supreme Court will be bloated by hideous procedural complexity, providing many off-ramps to avoid deciding the Section Three issue. Second, if the Supreme Court feels there’s some way to make these cases go away without resolving the merits, it will leap at that opportunity.

Still, “making these cases go away” might not be an option. If the Court resolves a particular case without squelching Section Three challenges, fresh challenges will arise. Also, if this issue seems to be not going away, the Supreme Court would rather resolve it sooner rather than later. It would be a nightmare if eligibility lawsuits kept bouncing around during election season, or worse, after the election.

It’s speculative to predict in a particular case what the Supreme Court will do; it’s speculative-squared to predict what the Supreme Court will do in a case without even knowing what the case looks like. With that caveat, I am going to assign 30 out of 100 probability points to the scenario of “Supreme Court grants certiorari, punts, issue burns out.”

So is Trump ineligible or not?

If you’re keeping track, we’re left with a 40% chance of “Supreme Court actually decides Trump’s eligibility.” And here are the odds I assigned to each outcome:

• Proponents of disqualification lose because:

  • Section Three is nonjusticiable: 1%

  • Section Three was effectively repealed in 1872 or 1898: 15%

  • Miscellaneous objections: 4%

  • Trump did not engage in insurrection: 10%

• Proponents of disqualification win on all issues, establish that Trump engaged in insurrection, and disqualify him from Presidency: 10%

Let’s go through these issues one by one.

Justiciability

One common argument against Section Three litigation goes like this:

“Trump’s eligibility should be decided at the ballot box, not in court. No American wants an insurrectionist to be President. We simply disagree on what it means to be an insurrectionist. All Americans are aware of what happened on January 6, 2021, and can decide for themselves whether those events disqualify Trump from the Presidency. And if a court disqualifies Trump now, it will set the precedent that future courts can disqualify other candidates, too. Rather than transforming every political campaign into a lawsuit, let’s defer to the wisdom of the American People.”

This is a reasonable position, and it might influence the Supreme Court’s assessment of the merits of the eligibility challenge. But it’s not a freestanding basis to reject the eligibility challenge. There’s no doctrine of “this lawsuit loses because it’s bad for the American People.” Courts must decide all lawsuits within their jurisdiction according to law.

It’s true that some issues are declared “nonjusticiable political questions,” but I don’t think a challenge to Trump’s eligibility falls in that category. Simplifying things a little bit, two types of questions are deemed nonjusticiable: questions that can’t be decided based on judicially manageable standards, and questions that are supposed to be decided by non-judicial state actors.

The question of Trump’s eligibility falls into neither category. The concept of “insurrection” isn’t so vague that courts are incapable of applying it. It’s not like the concept of a “republican form of government,” the canonical example of a constitutional provision lacking judicially manageable standards. It’s certainly not vaguer than the Equal Protection Clause, which is also part of the Fourteenth Amendment, and which courts apply all the time. There’s a criminal statute, 18 U.S.C. § 2383, similarly providing that “[w]hoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.” No one has ever suggested that this statute is nonjusticiable. It may be unpleasant or controversial or bad for America for the Supreme Court to decide an eligibility challenge, but that’s not what “nonjusticiable” means.

Nor does the Constitution delegate this issue to other state actors. This aspect of the nonjusticiability doctrine arose in the Marjorie Taylor Greene and Madison Cawthorn litigation. Article I of the Constitution provides: “Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members.” Both Greene and Cawthorn argued that the Constitution assigns to the House, not to courts, the question of whether they’re eligible under Section Three. In the Cawthorn Fourth Circuit case, all three judges wrote opinions on this: Judge Heytens’ majority opinion found the issue to be justiciable, Judge Richardson filed a separate opinion saying the issue is for the House, and Judge Wynn filed a concurrence responding in detail to Judge Richardson. In the Greene case, Judge Branch wrote a concurring opinion finding the issue to be for the House.

I’m not sure who is right about this; it’s a tough issue. (All of these opinions are very interesting; I particularly recommend the fascinating back-and-forth between Judge Wynn and Judge Richardson.). However, regardless of who is right, there’s no analogous argument for the Presidency. Nothing in the Constitution assigns the task of determining eligibility for the Presidency to any other branch of government. If a legal dispute arises, the courts have to decide it.

In my view, the argument that Section Three is nonjusticiable is extremely weak and will lose.

Amnesty Acts

Section Three’s last sentence is: “But Congress may by a vote of two-thirds of each House, remove such disability.”

In 1872 and 1898, Congress did just that. Here’s the statute Congress enacted in 1872:

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each house concurring therein), That all political disabilities imposed by the third section of the fourteenth article of amendments of the Constitution of the United States are hereby removed from all persons whomsoever, except Senators and Representatives of the thirty-sixth and thirty- seventh Congresses, officers in the judicial, military, and naval service of the United States, heads of departments, and foreign ministers of the United States.

And in 1898:

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the disability imposed by section three of the Fourteenth Amendment to the Constitution of the United States heretofore incurred is hereby removed.

Do these provisions remove Section Three’s disability as to persons who engaged in insurrections after these provisions were enacted? If so, then Trump couldn’t be ineligible under Section Three.

In the Cawthorn case, the Fourth Circuit thought not. In the Fourth Circuit’s view, these statutes eliminated Section Three’s bar for persons who were already ineligible (i.e., civil war rebels), not people who would become ineligible based on future acts of insurrection. The Fourth Circuit reasoned that the word “imposed” is past tense, implying that these statutes eliminated disabilities that had already been imposed. Moreover, the phrase “hereby removed” presupposes that the disability already existed—you can’t “remove” something unless it is already there. The district court in Greene reached a similar conclusion, and Baude and Paulsen agree with it.

This is a reasonable position, and I think it’s probably right. But there’s a respectable contrary argument that the 1872 and 1898 statutes sap Section Three of all force—indeed, the district court reached that conclusion in Cawthorn before being reversed by the Fourth Circuit.

Let me steel-man the argument in favor of that conclusion, and you can see whether you agree with it. It’s true that the word “imposed” in the 1872 and 1898 Acts is a past participle. In context, however, it is serving an adjectival function; it is saying that all political disabilities, past, present, and future, that have the characteristic of being “imposed” by the Fourteenth Amendment, are removed. In other words, it is describing the class of political disabilities being removed, rather than setting a temporal limitation.

A linguistic example might help to illustrate the point. It’s perfectly natural to say, “Baude and Paulsen think that Trump is ineligible for the Presidency because of a restriction imposed by the Fourteenth Amendment.” It’s true that Trump was disqualified long after the Fourteenth Amendment’s enactment, but in context, the phrase “imposed by the Fourteenth Amendment” refers to any restriction, both before and after the Fourteenth Amendment’s enactment, that is subject to Section Three’s bar.

Or to go further afield, the Eleventh Amendment provides: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” Even though he words “commenced” and “prosecuted” are past participles, the Eleventh Amendment doesn’t merely cover suits that were “commenced” or “prosecuted” before the Eleventh Amendment’s effective date. Instead, the Eleventh Amendment applies to any suit, past, present, and future, that has the characteristic of having been “commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”

How about the phrase “is removed”? The Fourth Circuit thought that a disability could not be “removed” from someone unless it already existed. But it’s reasonable to say that “removed” refers to a disability that would otherwise have existed absent the statute doing the “removing.” Or, alternatively, we might say that Section Three “imposed” a disability on all insurrectionists, past, present, and future, so the 1872 and 1898 statutes “removed” the “disability” from all insurrectionists, past, present, and future. The disability already existed, as applied to future insurrectionists, and so the 1872 and 1898 removed that disability, as applied to future insurrectionists.

Here’s a linguistic example. Suppose the CDC enacted a rule called the “No Foreign Covid Rule,” that said: “Any foreigner who lacks proof of Covid vaccination is ineligible to enter the United States.” Suppose the CDC later issued a proclamation saying, “The restriction on entry imposed by the No Foreign Covid Act is hereby removed.” The natural reading of the proclamation is that the restriction is removed as applied to everyone, past, present, and future. You wouldn’t read it to mean that foreigners who are born after the proclamation are still subject to the proof-of-vaccination requirement, on the theory that the No Foreign Covid Rule was never technically “imposed” on them so nothing was technically “removed.”

A statute preemptively granting amnesty to future insurrectionists wouldn’t exceed Congress’s Section Three authority, as the Fourth Circuit suggested. The last sentence of Section Three is: “Congress may by a vote of two-thirds of each House, remove such disability.” Again, if the “disability” imposed by Section Three applies past, present, and future, then Section Three authorizes Congress to “remove” that disability, past, present, and future.

Are you convinced? I’m not. I read the word “disabilities,” plural, in the 1872 Act to refer to the actual disabilities that people held, as opposed to the legal rule that imposed the disabilities. So the 1872 Act “removed” those disabilities while leaving the legal rule intact. As for the 1898 Act, the word “disability,” singular, might be construed to refer to the legal rule, but it refers only to the disability “heretofore incurred,” which to me sounds like it’s referring to the disability incurred by people in the past.

Also, the argument that the 1872 and 1898 statutes wipe out Section Three isn’t very attractive. It would foreclose Section Three ineligibility as to everyone, including the Couy Griffins of the world and future insurrectionists. It would attribute to Congress the intent to grant amnesty to insurrectionists that Congress didn’t even know about. And it would lump in Trump with Civil War rebels, perhaps not a comparison the Supreme Court will be thrilled to make.

Still, this is a reasonable legal argument, and I think it’s Trump’s best threshold objection. If the Supreme Court rules in Trump’s favor based on a threshold legal objection, I predict it would be this. I’m giving this a 15% overall probability.

Miscellaneous objections

There are various other objections to a Section Three claim floating around, but in my opinion, they are not persuasive.

One theory is that Section Three doesn’t apply of its own force: without an Act of Congress implementing Section Three, Section Three can’t be used to disqualify a candidate. This was the holding of In re Griffin, 11 F. Cas. 7 (C.C.D. Va. 1869), an opinion by Chief Justice Salmon P. Chase while riding circuit.

On this issue, Baude and Paulsen’s analysis is persuasive. As Baude and Paulsen explain in detail, Section Three, by its terms, is a rule of law that is binding by its own force and doesn’t require implementing legislation. Nothing in Section Three suggests that it is inapplicable unless implemented by an Act of Congress; to the contrary, Section Three says that it is applicable unless overriden by an Act of Congress. I am thoroughly persuaded by Baude and Paulsen’s argument that Griffin is weird, non-binding, and wrong.

If the Court holds that Section Three requires implementing legislation, its holding would be statesmanlike: the Court would be deferring to elected members of Congress rather than seizing authority to disqualify a presidential candidate. It would be more statesmanlike than the Amnesty Act solution, which would cast Trump alongside Civil War villains. However, it is not the Supreme Court’s job to be statesmanlike; it is the Supreme Court’s job to decide legal questions correctly. The “no implementing statute” position is incorrect, so I predict the Supreme Court will not adopt it.

Another theory, endorsed by Josh Blackman and Seth Barrett Tillman, is that the President is not an “Officer of the United States” under the Fourteenth Amendment. According to this theory, the category of “Officers of the United States” under Section Three is narrower than the category of persons who hold “office … under the United States” under Section Three.

While I admire Blackman and Tillman’s creative effort, I am not persuaded. First, the President holds “office … under the United States.” Here is Article II’s eligibility requirement for the Presidency:

No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.

I think we can agree that the President holds “Office.”

“Officer” means someone who holds office. Therefore, the President is an “Officer of the United States” under Section Three.

Why does the first part of Section Three use the word “office,” while the second part use the word “officer”? Because the first part talks about things people cannot hold (i.e., an “office … under the United States”) while the second part talks about the people who cannot hold them (i.e., “officers of the United States” who engaged in insurrection).

It would be impossible to imagine a more oblique way of creating two categories of persons, one of which includes the President and one of which doesn’t, by using the word “office” in the first category and the word “officer” in the second category. Textualism requires reading texts like a normal English speaker would. A normal English speaker would observe that the word “officer” is the word “office” with an “r” next to it. Having made this observation, the English speaker would not conclude that “officer” encompasses some “offices” and not others.

I will not walk through every possible legal theory against the application of Section Three; I’ll simply say they’re all much weaker than the Amnesty Act theory, at least in my view. I think it’s unlikely that the Supreme Court will rely on one of these theories.

So is Trump ineligible or not?

So, did he do it?

If the proponents of disqualification manage to bring a case to the Supreme Court and prevail on all these threshold legal issues, the Supreme Court will have to decide the ultimate question of whether Trump did, in fact, engage in insurrection that warrants disqualifying him from office.

Professors Baude and Paulsen offer a detailed argument that the answer is “yes.” Here is Jonathan Turley arguing the answer is “no.” Rather than litigate this issue on Substack, I will gingerly offer a few observations that lead me to believe that an opinion exonerating Trump might not be so easy to write.

To decide whether Trump is eligible for the presidency, the Supreme Court will have to decide two things: first, whether the events of January 6, 2021 rose to the level of an “insurrection,” and second, whether Trump’s involvement was sufficient that he could be said to have “engaged” in that insurrection.

To some extent, those determinations turn on the proper interpretation of “engaged” and “insurrection.” But those are ordinary English words. There is not much to interpret. Maybe the Supreme Court will adopt complicated multi-factor tests for what those words mean, but I’m not sure those tests will be an improvement upon the words themselves.

It seems to me that as to both questions, the outcome of the analysis will turn heavily on the facts, rather than the law. For example: What was the mob on January 6, 2021 actually trying to do? (Is this even a coherent question if different mob members had different intentions, or if mob members’ intentions changed over time?) And: What was Trump’s state of mind on January 6, 2021?

Of course, many facts are undisputed—what Trump said at the January 6 rally, what Trump said on the Perfect Phone Call, etc. But the inferences to be drawn from those facts, such as “what were Trump’s intentions?,” are themselves considered factual findings for purposes of the fact/law dichotomy.

In my view, if a Section Three case reaches the Supreme Court, there’s a strong chance it will do so in a posture in which the Court will have to assume all facts in favor of the proponents of disqualification.

One possibility is a case that comes from federal court. Trump will file a lawsuit preemptively seeking to enjoin state administrative hearings, arguing that even taking all facts in favor of the proponents of disqualification, Trump is eligible for the Presidency as a matter of law.

In this posture, the question would not be whether Trump, as an abstract matter, engaged in insurrection. The question would instead be, assuming the most nefarious version of the facts, did Trump engage in insurrection? This would require assuming, for instance, that Trump specifically intended for the rioters to stop the count.

Under this assumption, the Supreme Court might not be terribly enthusiastic about writing an opinion exonerating Trump. For example, one version of a “Trump is eligible” opinion goes like this: “Even assuming a court is capable of disqualifying a candidate under Section Three, it should only do so where the facts leave no doubt that the candidate engaged in insurrection. In close cases, courts should allow Americans to vote for their preferred candidate. Here, the facts are too ambiguous for a court to find, with requisite certainty, that Trump is ineligible.” But in a posture where all facts have to be taken against Trump, that opinion because less persuasive.

Another version of a pro-eligibility opinion is along the lines of, “mere advocacy and inaction isn’t enough to show ‘insurrection,’ Trump didn’t personally direct the rioters to storm the Capitol.” Or, I can imagine a pro-eligibility opinion saying, “there was never any real prospect of the protestors stopping the count, they were just angry and some of them trespassed, no one was seriously going to overthrow the government.” But again, these types of opinions require a contestable interpretation of the factual record.

That is why, in my view, if the Supreme Court rules in Trump’s favor, it is more likely to do so on an antecedent ground, such as the 1872 or 1898 amnesty statutes. That is a much cleaner way to reach that outcome.

Of course, on a summary judgment record, the Supreme Court couldn’t find Trump ineligible, either; it would say that fact-finding is needed. Any finding of ineligibility would have to occur following a final judgment.

If the Supreme Court reaches the issue following a final judgment, it would probably do so in a case where a lower court finds Trump ineligible, and Trump is the petitioner. In that scenario, there might be pro-disqualification findings by a state-court judge which are subject to clear-error review. (I suspect that if a state-court judge made factual findings favorable to Trump and found him eligible for the presidency, proponents of disqualification wouldn’t appeal.)

This would lead to an interesting situation. It would be … intergalactic if Trump’s eligibility for the Presidency turned on the degree of deference to be granted to the factual findings of some random administrative law judge who spent most of his career deciding worker’s compensation disputes. But it would be equally intergalactic if the Supreme Court conducted de novo factfinding regarding the events of January 6. The Supreme Court would be stuck with a very unappealing factual record.

The case for finding Trump eligible would be even harder if Trump is convicted in the D.D.C. Trump is likely to mount a defense at trial that he was merely engaging in abstract advocacy of Stop the Steal and did not intend to obstruct anything. If he’s convicted, the jury will necessarily have rejected that defense. I have no idea whether the Supreme Court would affirm or reverse such a conviction. If it affirms and rejects Trump’s First Amendment defense, however, the “abstract advocacy” defense to the insurrection charge becomes particularly sticky.

Finally, the Supreme Court will be acutely aware that Trump will construe a judicial opinion exonerating him of “insurrection” as an implicit endorsement of his campaign. I doubt whether five members of the Court actually want this.

That said, any opinion finding Trump ineligible would likely be joined by an appointee of Trump, which would also be remarkable.

If the Supreme Court does reach the merits of the eligibility dispute, I think this is a coin flip. I’m assigning a 10% overall chance that the Court finds Trump eligible, and a 10% overall chance that it finds him ineligible.

A 10% chance of ineligibility seems really high. But Section Three says what it says. On January 6, 2021, Trump did what he did.

The ordinary idiom in this situation is “stranger things have happened.” Here, though, I don’t think I can use that idiom because such a ruling might be the strangest thing that has ever happened in the history of American law. However, in any strangeness ranking, something has to be #1. It might be this.