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Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.

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Speaker 1: Donald Trump is facing four criminal trials, two over his

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Speaker 1: efforts to overturn the twenty twenty election, with the federal

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Speaker 1: charges specifically accusing him of conspiring to obstruct the congressional

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Speaker 1: confirmation of Joe Biden's victory on January sixth. Despite that,

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Speaker 1: Trump remains far and away the front runner for the

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Speaker 1: Republican presidential nomination. But now the former president is facing

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Speaker 1: a different legal battle that could sideline him an effort

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Speaker 1: to keep him off the ballot. Prominent liberal and conservative

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Speaker 1: scholars are increasingly raising a constitutional argument that Trump's actions

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Speaker 1: on January sixth disqualify him under Section three of the

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Speaker 1: fourteenth Amendment, which bars people from holding office if they

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Speaker 1: took an oath to support the Constitution and later engaged

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Speaker 1: in insurrection or rebellion. My guest is one of those

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Speaker 1: liberal scholars, Professor Lawrence Tribe of Harvard Law School. He's

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Speaker 1: written an article in the Atlantic with former federal judge

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Speaker 1: Michael Ludig entitled the Constitution prohibits Trump from ever being

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Speaker 1: President again. For those who haven't heard about the Fourteenth

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Speaker 1: Amendment's disqualification clause. Will you explain it and its relevance

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Speaker 1: to trump?

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Speaker 2: Sure? After the Civil War, the framers of the Fourteenth Amendment,

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Speaker 2: which was one of the main provisions that basically restructured

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Speaker 2: the Constitution and made it possible for the Confederate States

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Speaker 2: to rejoin the Union after the Civil War, the framers

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Speaker 2: of the Fourteenth Amendment wanted to protect against anyone in

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Speaker 2: the future who would take an oath to support the

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Speaker 2: Constitution and then turn their back on it and engage

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Speaker 2: in basically treason against the Republic by or engaging in,

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Speaker 2: or giving aid and comfort to an insurrection against the

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Speaker 2: Constitution of the United States. And so there was a

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Speaker 2: very explicit provision written into the Fourteenth Amendment, which became

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Speaker 2: part of the Constitution in eighteen sixty eight, saying that

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Speaker 2: anyone like that could never again hold office any office

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Speaker 2: in the United States, not just president, but you know,

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Speaker 2: anything down to dogcatcher. However, that disability could be lifted

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Speaker 2: by a two thirds vote of both houses of Congress,

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Speaker 2: so that was a safeguard against this being abused. This

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Speaker 2: hasn't been used very often since the Civil War, but

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Speaker 2: that's because we haven't had very many people who've taken

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Speaker 2: an oath to the Constitution and then basically made war

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Speaker 2: on the Constitution itself by doing the kind of thing

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Speaker 2: that many people believe Donald Trump did, namely encouraging an insurrection,

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Speaker 2: trying to have fake ballots, the whole nine yards, basically

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Speaker 2: trying to undo the Constitution's main sort of the beating

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Speaker 2: heart of the Constitution, the part that is guaranteed from

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Speaker 2: the beginning of the Republic that we would transfer power

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Speaker 2: peacefully from one president to the next. The Civil War

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Speaker 2: was one kind of insurrection. What happened on the lead

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Speaker 2: up to January sixth was another. And so a number

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Speaker 2: of people around the country, including a very conservative former

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Speaker 2: federal judge, Judge Michael Lutig, and I have been writing

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Speaker 2: about this constitutional provision, which many people think, including us,

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Speaker 2: applies like a glove to Donald J. Trump, and whether

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Speaker 2: that his story is not going to keep him off

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Speaker 2: the ballot is something that's being teed up for litigation

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Speaker 2: all around the country.

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Speaker 1: So Trump is facing two criminal trials over his efforts

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Speaker 1: to overturn the election results. Some people might say we

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Speaker 1: should wait to see if he's convicted before we see

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Speaker 1: if he falls under Section three.

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Speaker 2: Yeah, that would be a big mistake because this section

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Speaker 2: has nothing to do with punishing someone for crimes. In fact,

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Speaker 2: one of the main reasons that it was written was

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Speaker 2: the recognition that the president at the time, Andrew Johnson,

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Speaker 2: wasn't about to have a Justice Department prosecute anyone for

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Speaker 2: anything that was related to the attempt to overturn the

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Speaker 2: Constitution of the United States. He, in fact, Johnson pardoned insurrectionists.

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Speaker 2: So they wanted a provision that was quite independent of

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Speaker 2: criminal prosecution or of civil suits, that would operate directly

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Speaker 2: to disqualify anyone who took an oath and then engaged

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Speaker 2: in or gave aid and comfort to an insurrection against

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Speaker 2: the Constitution. So whatever happens in these criminal trials, which

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Speaker 2: are very important in terms of holding various people, not

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Speaker 2: just Donald Trump, but the eighteen others that Manny Willis

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Speaker 2: has indicted under the Rico statu or the unindicted co conspirators,

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Speaker 2: many of whom may end up being indicted by jack Smith,

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Speaker 2: whatever happens to them has to do with whether they

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Speaker 2: spend years in prison or not, not on whether they

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Speaker 2: can again hold power. That's a different matter. This disqualification

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Speaker 2: therefore has nothing to do with the pending criminal proceedings.

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Speaker 1: Is it a problem or concern that several judgment calls

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Speaker 1: have to be made on this issue that there's no

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Speaker 1: clear authority on and it's still being debated. For example,

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Speaker 1: does Congress have to pass a law to enforce the ban?

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Speaker 2: So it's pretty clear to me and the judge Looting,

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Speaker 2: and to the conservative scholars who have written a major

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Speaker 2: piece about this, but Congress needn't pass the law to

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Speaker 2: enforce it. It's simply self enforcing in the sense that

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Speaker 2: anyone who engages in an insurrection after taking an oath

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Speaker 2: or gives aid and comfort to it disqualified. That doesn't

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Speaker 2: mean that it kind of leaps up off the page

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Speaker 2: and points directly to Donald Trump or Rudy Giuliani or

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Speaker 2: anybody else. It does have to be applied, and that's

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Speaker 2: why there are lawsuits that are being planned as we speak,

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Speaker 2: lawsuits against various secretaries of States and other lawsuits saying

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Speaker 2: that in the discharge of their responsibility to decide who

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Speaker 2: is on the ballot, they need to conduct hearings on

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Speaker 2: whether indeed Donald Trump did what it appears that he did,

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Speaker 2: namely engage in or give aid and comfort to an

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Speaker 2: insurrection that won't happen without hearings. Those hearings are to

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Speaker 2: be independently important, valuable, educational. Hopefully they'll be tried on television.

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Speaker 2: They're not criminal trials. The y to be evidentiary hearings

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Speaker 2: to determine the kind of thing that the January sixth

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Speaker 2: Committee determined, and to determine who was engaged in this

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Speaker 2: interaction and who is disqualified.

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Speaker 1: I know a Florida lawyer last week filed one of

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Speaker 1: the first challenges to Trump running under the fourteenth Amendment.

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Speaker 1: He said it was your analysis and Judge LUDIGX that

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Speaker 1: convinced him. On Monday, a Michigan resident file the challenge there.

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Speaker 2: So sorry to interrupt sure that lawsuit. I mean, it's

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Speaker 2: very nice that he says Judge Lutig and I persuaded him.

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Speaker 2: But he doesn't really have any obvious standing in that case.

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Speaker 2: He says that he's injured because he voted ever since

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Speaker 2: he was eighteen. Well, I entitle him to sue Donald Trump.

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Speaker 2: As far as I can tell. It's competitors to Donald

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Speaker 2: Trump who might sue. And in some states the voters

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Speaker 2: have standing to bring lawsuits against the Secretary of State

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Speaker 2: to get an injunction to order the Secretary of State

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Speaker 2: to conduct the proceeding to decide who is disqualified. Those

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Speaker 2: are the suits that I would watch more seriously.

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Speaker 1: Free speech for people is sending letters to secretaries of

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Speaker 1: state asking them to Bartrump from the ballot, and actually

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Speaker 1: including draft language for a declaration that could be used

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Speaker 1: to exclude him from primary ballots. Do you see that

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Speaker 1: as a way to go to appeal to secretaries of states?

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Speaker 2: It seems to me that's a first step that is

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Speaker 2: either free speech for people or some other group could

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Speaker 2: even be Chris Christie or Asa Hutchinson could ask secretaries

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Speaker 2: of state in states whose laws provide for this to

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Speaker 2: conduct proceedings to decide whether or not Donald Trump is

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Speaker 2: eligible to vote. I think simply asking the secretary of

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Speaker 2: State to make a declaration may be a little bit

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Speaker 2: short circling what should happen. It seems to me that

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Speaker 2: secretaries of state should be asked to make a determination,

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Speaker 2: which may involve taking evidence and conducting hearings and then

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Speaker 2: declaring their conclusion.

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Speaker 1: So you write that these disqualification efforts will naturally lead

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Speaker 1: to the courts and there'll be conflicting rulings. So will

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Speaker 1: this necessarily end at the Supreme Court with its super

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Speaker 1: conservative majority.

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Speaker 2: I think that's very likely, and that's why I've said

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Speaker 2: in many contexts that this will be quite a test

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Speaker 2: for the Supreme Court whether it is going to be

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Speaker 2: influenced beyond the law and beyond reason by its conservative inclinations.

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Speaker 2: Conservative in a partisan sense, Conservatives like Judge Loutig, and

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Speaker 2: like professors Bodie and Paulson who wrote the blockbuster article

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Speaker 2: that's coming out soon explaining why this provision means what

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Speaker 2: it says, Their conservatism leads them to say that Donald

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Speaker 2: Trump is disqualified. A lot of people worry me among

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Speaker 2: them that some of the conservatives on the current court

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Speaker 2: are not as principled as we would like. And so

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Speaker 2: I certainly wouldn't bet a great deal on the Court

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Speaker 2: doing what I think the law requires it to do

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Speaker 2: in this situation. So the ultimate outcome of these efforts

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Speaker 2: may be to educate the public and to focus on

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Speaker 2: the degree to which Donald Trump cannot be trusted to

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Speaker 2: enforce the constitution and preserve democracy. That may be the

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Speaker 2: principal effect, whether it keeps him off the ballot, in

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Speaker 2: the long run, and the ultimate confrontation with the incumbent

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Speaker 2: president is a different matter and harder to predict.

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Speaker 1: Timing seems to be a problem. There's limited time. Do

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Speaker 1: you think that this can get to the Supreme Court

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Speaker 1: before the primaries are over?

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Speaker 2: Well, I think there's a very good chance it will.

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Speaker 2: Thingings can move very quickly through the courts. When the

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Speaker 2: courts see that they will become moot unless something is done.

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Speaker 2: I mean, it would be quite a disaster for the

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Speaker 2: nominee of a major political party to be running at

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Speaker 2: a time when the primaries are over, the convention is over,

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Speaker 2: and then there is litigation over whether that person needs

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Speaker 2: to be taken off the ballot because of a constitutional disability.

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Speaker 2: That's not the right time to do it. The right

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Speaker 2: time to do it is before the convention.

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Speaker 1: In your article, you mentioned the concerns of former federal

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Speaker 1: judge and Stanford law professor Michael McConnell, who's written that

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Speaker 1: empowering partiesan politicians such as state secretaries of state to

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Speaker 1: disqualify their political opponents from the ballot deprives voters of

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Speaker 1: electing candidates of their choice, and if abused, could be

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Speaker 1: profoundly anti democratic. How do you answer his concerns?

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Speaker 2: Well, Judge Ludig and I have both said that he

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Speaker 2: has it backwards. It's the most democratic thing of all

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Speaker 2: to insist that the constitutional provision designed to protect democracy

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Speaker 2: from those who would overturn it in violation of the

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Speaker 2: rule of law. To ensure that that's enforced. To say

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Speaker 2: that the people have a right to elect whoever they

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Speaker 2: want is to ignore the fact that a lot of

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Speaker 2: people that someone might want to elect. A lot of

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Speaker 2: Democrats might want to elect Barack Obama again, but under

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Speaker 2: the constitution he can't run again because of the term limit.

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Speaker 2: Some people might want to elect a brilliant thirty four

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Speaker 2: year old, but that person is not qualified to run.

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Speaker 2: Some people, I think, would like to elect, you know,

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Speaker 2: someone who was not a natural born citizen, but they

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Speaker 2: can't do that because someone like Janet Granholm, who's a

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Speaker 2: very impressive woman, was born in Canada. Democracy doesn't mean

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Speaker 2: having your way, no matter. What means abiding by the

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Speaker 2: rule of law, and certainly part of the rule of

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Speaker 2: law is that those who try to shredd it the

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Speaker 2: way that Donald Trump actually said that he would like

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Speaker 2: to terminate the Constitution Judge Luvigno quote his language to

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Speaker 2: that effect in our article in The Atlantic. Democracy can't

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Speaker 2: survive with people like that being presented as hide pipers

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Speaker 2: to lead the country down at primrose paths toward terrible

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Speaker 2: antidemocratic destruction.

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Speaker 1: The only time I saw that this provision in one

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Speaker 1: hundred and fifty years has been used to disqualify and

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Speaker 1: official was a state judge in New Mexico who removed

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Speaker 1: a county commissioner from office because he participated in the

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Speaker 1: January sixth attack. Is that the only time you know

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Speaker 1: of two?

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Speaker 2: Well, that's the only modern time. There may be some

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Speaker 2: earlier ones. Certainly when Madison Cowthorn was ruled by the

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Speaker 2: Fourth Circuit to be disqualified under this provision, that became moot.

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Speaker 2: So that happened fairly recently, but it became moot when

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Speaker 2: he lost his re election attempt. So there are some

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Speaker 2: recent efforts. But we shouldn't get distracted by how rarely

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Speaker 2: this provision has been used. It's been used rarely because

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Speaker 2: we rarely have people take an oath to the Constitution

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Speaker 2: and then become actively engaged in trying to overturn it.

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Speaker 1: You acknowledge in the article you and Judge Ludig that

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Speaker 1: this could give rise to quote momentary social unrest and

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Speaker 1: even violence. So does that mitigate against using it in

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Speaker 1: our already divided country.

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Speaker 2: No, because that would give power to destroy democracy and

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Speaker 2: end the rule of law. Those people who threaten violence.

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Speaker 2: We have to have the courage of our convictions. We

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Speaker 2: can't simply turn our backs on the constitution because some

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Speaker 2: people brandish weapons and say that if you enforce it,

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Speaker 2: and you'll get a bullet in the back. I mean,

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Speaker 2: that's what a lot of people are saying now in

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Speaker 2: the pending proceedings criminal and civil against people like Donald Trump,

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Speaker 2: and we just cannot let the terrorists have their way.

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Speaker 1: In your heart of hearts, do you think that this

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Speaker 1: will just end up being instructive, as you mentioned before

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Speaker 1: for Americans, or that it will actually work to stop

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Speaker 1: Trump from being on the ballot.

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Speaker 2: You know, I have been so busy trying to help

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Speaker 2: figure out how to do it right and what that

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Speaker 2: just means that I have put away my little crystal ball.

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Speaker 2: I'm not sure that it's all that accurate anyway. So

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Speaker 2: I'm just I'm just plodding away one foot at a time,

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Speaker 2: and I'm not going to make long term predictions.

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Speaker 1: Okay, fair enough, so I like the crystal ball a lot.

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Speaker 1: Thanks so much, Professor Tribe.

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Speaker 2: Thank you, thank you.

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Speaker 1: That's Constitutional law scholar and Harvard Law professor Lawrence Tribe.

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Speaker 1: And that's it for this edition of The Bloomberg Law Show.

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Speaker 1: Remember you can always get the latest legal news on

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Speaker 1: our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify,

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Speaker 1: and at www dot bloomberg dot com slash podcast Slash Law,

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Speaker 1: And remember to tune into The Bloomberg Law Show every

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Speaker 1: weeknight at ten pm Wall Street Time. I'm June Grosso,

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Speaker 1: and you're listening to Bloomberg