Former Speaker of the House Paul Ryan has called for the former president not to stand in the contest, with fewer Trump-endorsed candidates making it to the House and Senate than expected.
Some speculated that Trump would throw his hat in the ring shortly after the midterms, though that move could now be delayed (if not scrapped completely).
But this isn’t the only headache for the former president ahead of a potential primary, let alone a presidential run.
Tall Order For Trump
With the January 6 subpoena still looming on the horizon, the Mar-a-Lago investigation ongoing, and the NY State Attorney Letitia James’ lawsuit among just some of the legal woes Trump faces, at present it seems his star is shining a little dimmer.
Even if he were to power through this laundry list of setbacks and mount a campaign against Ron DeSantis—increasingly considered the GOP’s preferred candidate—others are already plotting further legal action against him.
Last week, the ethics watchdog group Citizens for Responsibility and Ethics in Washington (CREW) said it had written to Trump informing him it intends to seek his “disqualification” if he announces his presidential bid for the 2024 election.
CREW, which uses “aggressive legal action” to hold government officials accountable, asserted Trump should be disqualified from serving public office for his actions during the January 6 siege on the U.S. Capitol, referencing the 14th Amendment of the Constitution.
Noah Bookbinder, president of CREW, stated in a press release that the organization’s message for the former president is “clear.”
“If you seek office despite being disqualified under the Constitution for engaging in insurrection, we and others loyal to the Constitution will defend it,” Bookbinder said.
Its argument is based on section 3 of the 14th amendment, which bars any official who has “taken an oath” to protect the Constitution from engaging “in insurrection or rebellion” or “giving aid or comfort to the enemies thereof.”
Bookbinder wrote in his letter to the former president that when Trump was sworn into office in January 2017, he “swore a sacred oath” to defend the Constitution.
It is noteworthy, too, that CREW has already set in place a precedent ahead of this new action. In June 2022, CREW, along with several law firms, helped successfully remove New Mexico county official Couy Griffin from office for his involvement in the January 7 attack.
Griffin, a former Otero County Commissioner, participated in several “Stop the Steal” rallies prior to January 6 and breached the Capitol on the day of the riot.
In his decision, State District Court Judge Francis Mathew wrote that Griffin engaged in the insurrection even if he hadn’t “personally engaged in violence” during the breach, reported Politico.
“By joining the mob and trespassing on restricted Capitol grounds, Mr. Griffin contributed to delaying Congress’s election-certification proceedings,” Mathew wrote.
It was the first time a court officially ruled the January 6 riot was an insurrection.
However, how likely is it that Trump would face the same decision if he does indeed announce his 2024 candidacy?
Preserving the Republic
In June 2022, Laurence Tribe, a professor emeritus of constitutional law at Harvard University, said Trump should be prosecuted and banned from running for another term, saying there was enough evidence to show he violated section 3 of the 14th amendment.
“Even without a direct charge of insurrection, allegations of such insurrectionist activities in an indictment for conspiring to defraud the United States or to obstruct an official proceeding or for seditious conspiracy might suffice for 14th Amendment disqualification if Trump were convicted,” Tribe wrote.
“Holding Trump accountable—and disqualifying him from future office—would not be a partisan act, but one needed to preserve the republic.”
Professor Gerard Magliocca, the Samuel R. Rosen Professor at the Indiana Robert H. McKinney School of Law, an expert in constitutional law who has been in contact with CREW, told Newsweek that while the organization had a “strong Section 3 case against Donald Trump,” it was hard to predict how the Supreme Court, which includes three Trump-picked Justices, would rule on the matter.
“The Court has never interpreted Section 3 of the Fourteenth Amendment. Thus, the Justices have no track record that we can examine (in contrast to issues such as abortion or affirmative action),” Professor Magliocca said.
Crucially, Professor Magliocca added, was that while Trump could be declared ineligible after he announces his candidacy, the Supreme Court would need to rule on his eligibility before the first primary is held, otherwise the nominating process “could be thrown into chaos.”
“CREW and other groups may write directly to some state election officials asking them to declare Trump ineligible. If he is declared ineligible anywhere, then he will, of course, sue and say that he is eligible.”
‘Too Clever By Half’
Others have shown a more cautious view of the challenges ahead.
Jonathan Turley, the J.B. and Maurice C. Shapiro Professor of Public Interest Law at George Washington University, who has written extensively in areas including constitutional law, said he was “highly skeptical of the prospect for these challenges.”
“Using the 14th Amendment is too clever by half,” he said.
“Our raging politics blinds many to what could be a dangerous precedent of barring opponents from office. We can then leave the Constitution alone, and leave the future of Trump to voters and to history.”
Professor Turley, said the Section 3 provision of the 14th Amendment, was written after the 39th Congress convened in December 1865 when “many members were shocked to see Alexander Stephens, the Confederate vice president, waiting to take a seat with an array of other former Confederate senators and military officers.”
“It was Justice Edwin Reade of the North Carolina Supreme Court who later explained, ‘[t]he idea [was] that one who had taken an oath to support the Constitution and violated it, ought to be excluded from taking it again.”
Turley argued that the events of January 6 would not meet the standard set in Section 3 of the 14th Amendment as the clause “was created in reference to a real Civil War in which over 750,000 people died in combat.”
“The Courts would likely expedite any challenge, though I expect most judges would find the use of the 14th amendment to be dubious on both constitutional and historical grounds,” professor Turley added.
“It smacks of politics by other means. The voters have ample authority to bar Trump from office through the electoral process. The 14th amendment claim is creative but equally transparent and opportunistic.
“It seeks to use judges to achieve what may not be attainable in the election.”
‘Attacks On Our Democracy’
CREW’s Senior Vice President and Chief Counsel Donald Sherman confirmed to Newsweek that it had not received comments from the Trump campaign, but disputed the arguments made against its challenge.
“We strongly disagree with the notion that we can or should ’leave the Constitution alone,’” Sherman said.
“The Constitution of the United States is the supreme law of the land and public officials, including former President Trump, swore an oath to support and defend it.
“Recent precedents in federal and state courts, as well as legal historians and academics, have all confirmed that Section 3 of the 14th amendment applies beyond the context of the Civil War.
“On January 6, 2021, insurrectionists incited by former President Trump accomplished something that not even the confederacy did—seizing the US Capitol and disrupting the peaceful transfer of power.
“The plain text of the 14th amendment demands that participants in this insurrection be disqualified from federal and state office. Failure to do so will only lead to escalating attacks on our democracy.”
While CREW and others set precedent for prosecuting insurrectionist actions, there is a clear difference between prosecuting a county official and an influential billionaire, with a track record of aggressive litigation, who is running for president.
Neither the January 6 committee’s final findings nor its subpoena to Trump have been fully realized yet either, and may potentially drive a case for a 14th Amendment breach further.
In light of the Republicans’ results in the midterms, and growing resentment among the GOP toward the former president, there is a possibility that any candidacy announcement could be delayed or even canceled (thus rendering the whole debate moot).
However the outcome, CREW’s arguments are certainly among the more sophisticated and potentially damaging challenges to Trump’s plans and may well see their day in court.
Given the pressure and backlash that independent judges have faced investigating the former president, it would undoubtedly be a fraught case, but the gravity of these latest obstacles ought not be understated.
Newsweek has contacted Donald Trump for comment.
