WEBVTT - Constitution Bars Trump From Presidency

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<v Speaker 1>This is Bloomberg Law with June Brusso from Bloomberg Radio.

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<v Speaker 1>Donald Trump is facing four criminal trials, two over his

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<v Speaker 1>efforts to overturn the twenty twenty election, with the federal

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<v Speaker 1>charges specifically accusing him of conspiring to obstruct the congressional

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

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<v Speaker 1>Trump remains far and away the front runner for the

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<v Speaker 1>Republican presidential nomination. But now the former president is facing

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<v Speaker 1>a different legal battle that could sideline him an effort

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<v Speaker 1>to keep him off the ballot. Prominent liberal and conservative

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<v Speaker 1>scholars are increasingly raising a constitutional argument that Trump's actions

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<v Speaker 1>on January sixth disqualify him under Section three of the

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<v Speaker 1>fourteenth Amendment, which bars people from holding office if they

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<v Speaker 1>took an oath to support the Constitution and later engaged

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<v Speaker 1>in insurrection or rebellion. My guest is one of those

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

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<v Speaker 1>written an article in the Atlantic with former federal judge

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<v Speaker 1>Michael Ludig entitled the Constitution prohibits Trump from ever being

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<v Speaker 1>President again. For those who haven't heard about the Fourteenth

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<v Speaker 1>Amendment's disqualification clause. Will you explain it and its relevance

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<v Speaker 1>to trump?

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<v Speaker 2>Sure? After the Civil War, the framers of the Fourteenth Amendment,

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<v Speaker 2>which was one of the main provisions that basically restructured

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<v Speaker 2>the Constitution and made it possible for the Confederate States

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<v Speaker 2>to rejoin the Union after the Civil War, the framers

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<v Speaker 2>of the Fourteenth Amendment wanted to protect against anyone in

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<v Speaker 2>the future who would take an oath to support the

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<v Speaker 2>Constitution and then turn their back on it and engage

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<v Speaker 2>in basically treason against the Republic by or engaging in,

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<v Speaker 2>or giving aid and comfort to an insurrection against the

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<v Speaker 2>Constitution of the United States. And so there was a

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<v Speaker 2>very explicit provision written into the Fourteenth Amendment, which became

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<v Speaker 2>part of the Constitution in eighteen sixty eight, saying that

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<v Speaker 2>anyone like that could never again hold office any office

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<v Speaker 2>in the United States, not just president, but you know,

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<v Speaker 2>anything down to dogcatcher. However, that disability could be lifted

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<v Speaker 2>by a two thirds vote of both houses of Congress,

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<v Speaker 2>so that was a safeguard against this being abused. This

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<v Speaker 2>hasn't been used very often since the Civil War, but

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

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<v Speaker 2>an oath to the Constitution and then basically made war

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<v Speaker 2>on the Constitution itself by doing the kind of thing

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<v Speaker 2>that many people believe Donald Trump did, namely encouraging an insurrection,

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<v Speaker 2>trying to have fake ballots, the whole nine yards, basically

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<v Speaker 2>trying to undo the Constitution's main sort of the beating

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<v Speaker 2>heart of the Constitution, the part that is guaranteed from

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<v Speaker 2>the beginning of the Republic that we would transfer power

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<v Speaker 2>peacefully from one president to the next. The Civil War

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<v Speaker 2>was one kind of insurrection. What happened on the lead

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<v Speaker 2>up to January sixth was another. And so a number

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<v Speaker 2>of people around the country, including a very conservative former

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<v Speaker 2>federal judge, Judge Michael Lutig, and I have been writing

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<v Speaker 2>about this constitutional provision, which many people think, including us,

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<v Speaker 2>applies like a glove to Donald J. Trump, and whether

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<v Speaker 2>that his story is not going to keep him off

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<v Speaker 2>the ballot is something that's being teed up for litigation

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<v Speaker 2>all around the country.

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<v Speaker 1>So Trump is facing two criminal trials over his efforts

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<v Speaker 1>to overturn the election results. Some people might say we

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<v Speaker 1>should wait to see if he's convicted before we see

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<v Speaker 1>if he falls under Section three.

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<v Speaker 2>Yeah, that would be a big mistake because this section

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<v Speaker 2>has nothing to do with punishing someone for crimes. In fact,

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<v Speaker 2>one of the main reasons that it was written was

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<v Speaker 2>the recognition that the president at the time, Andrew Johnson,

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<v Speaker 2>wasn't about to have a Justice Department prosecute anyone for

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<v Speaker 2>anything that was related to the attempt to overturn the

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<v Speaker 2>Constitution of the United States. He, in fact, Johnson pardoned insurrectionists.

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<v Speaker 2>So they wanted a provision that was quite independent of

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<v Speaker 2>criminal prosecution or of civil suits, that would operate directly

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<v Speaker 2>to disqualify anyone who took an oath and then engaged

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<v Speaker 2>in or gave aid and comfort to an insurrection against

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<v Speaker 2>the Constitution. So whatever happens in these criminal trials, which

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<v Speaker 2>are very important in terms of holding various people, not

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<v Speaker 2>just Donald Trump, but the eighteen others that Manny Willis

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<v Speaker 2>has indicted under the Rico statu or the unindicted co conspirators,

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<v Speaker 2>many of whom may end up being indicted by jack Smith,

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<v Speaker 2>whatever happens to them has to do with whether they

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<v Speaker 2>spend years in prison or not, not on whether they

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<v Speaker 2>can again hold power. That's a different matter. This disqualification

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<v Speaker 2>therefore has nothing to do with the pending criminal proceedings.

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<v Speaker 1>Is it a problem or concern that several judgment calls

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<v Speaker 1>have to be made on this issue that there's no

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

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<v Speaker 1>does Congress have to pass a law to enforce the ban?

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<v Speaker 2>So it's pretty clear to me and the judge Looting,

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<v Speaker 2>and to the conservative scholars who have written a major

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<v Speaker 2>piece about this, but Congress needn't pass the law to

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<v Speaker 2>enforce it. It's simply self enforcing in the sense that

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<v Speaker 2>anyone who engages in an insurrection after taking an oath

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<v Speaker 2>or gives aid and comfort to it disqualified. That doesn't

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<v Speaker 2>mean that it kind of leaps up off the page

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<v Speaker 2>and points directly to Donald Trump or Rudy Giuliani or

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

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<v Speaker 2>why there are lawsuits that are being planned as we speak,

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<v Speaker 2>lawsuits against various secretaries of States and other lawsuits saying

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<v Speaker 2>that in the discharge of their responsibility to decide who

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<v Speaker 2>is on the ballot, they need to conduct hearings on

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<v Speaker 2>whether indeed Donald Trump did what it appears that he did,

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<v Speaker 2>namely engage in or give aid and comfort to an

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<v Speaker 2>insurrection that won't happen without hearings. Those hearings are to

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

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<v Speaker 2>They're not criminal trials. The y to be evidentiary hearings

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<v Speaker 2>to determine the kind of thing that the January sixth

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<v Speaker 2>Committee determined, and to determine who was engaged in this

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<v Speaker 2>interaction and who is disqualified.

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<v Speaker 1>I know a Florida lawyer last week filed one of

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<v Speaker 1>the first challenges to Trump running under the fourteenth Amendment.

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<v Speaker 1>He said it was your analysis and Judge LUDIGX that

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<v Speaker 1>convinced him. On Monday, a Michigan resident file the challenge there.

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

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<v Speaker 2>very nice that he says Judge Lutig and I persuaded him.

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

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<v Speaker 2>He says that he's injured because he voted ever since

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<v Speaker 2>he was eighteen. Well, I entitle him to sue Donald Trump.

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<v Speaker 2>As far as I can tell. It's competitors to Donald

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<v Speaker 2>Trump who might sue. And in some states the voters

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<v Speaker 2>have standing to bring lawsuits against the Secretary of State

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<v Speaker 2>to get an injunction to order the Secretary of State

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<v Speaker 2>to conduct the proceeding to decide who is disqualified. Those

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<v Speaker 2>are the suits that I would watch more seriously.

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<v Speaker 1>Free speech for people is sending letters to secretaries of

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<v Speaker 1>state asking them to Bartrump from the ballot, and actually

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<v Speaker 1>including draft language for a declaration that could be used

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<v Speaker 1>to exclude him from primary ballots. Do you see that

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<v Speaker 1>as a way to go to appeal to secretaries of states?

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<v Speaker 2>It seems to me that's a first step that is

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<v Speaker 2>either free speech for people or some other group could

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<v Speaker 2>even be Chris Christie or Asa Hutchinson could ask secretaries

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<v Speaker 2>of state in states whose laws provide for this to

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<v Speaker 2>conduct proceedings to decide whether or not Donald Trump is

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<v Speaker 2>eligible to vote. I think simply asking the secretary of

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<v Speaker 2>State to make a declaration may be a little bit

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<v Speaker 2>short circling what should happen. It seems to me that

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<v Speaker 2>secretaries of state should be asked to make a determination,

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<v Speaker 2>which may involve taking evidence and conducting hearings and then

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<v Speaker 2>declaring their conclusion.

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<v Speaker 1>So you write that these disqualification efforts will naturally lead

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<v Speaker 1>to the courts and there'll be conflicting rulings. So will

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<v Speaker 1>this necessarily end at the Supreme Court with its super

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<v Speaker 1>conservative majority.

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<v Speaker 2>I think that's very likely, and that's why I've said

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<v Speaker 2>in many contexts that this will be quite a test

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<v Speaker 2>for the Supreme Court whether it is going to be

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<v Speaker 2>influenced beyond the law and beyond reason by its conservative inclinations.

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<v Speaker 2>Conservative in a partisan sense, Conservatives like Judge Loutig, and

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<v Speaker 2>like professors Bodie and Paulson who wrote the blockbuster article

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<v Speaker 2>that's coming out soon explaining why this provision means what

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<v Speaker 2>it says, Their conservatism leads them to say that Donald

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<v Speaker 2>Trump is disqualified. A lot of people worry me among

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<v Speaker 2>them that some of the conservatives on the current court

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<v Speaker 2>are not as principled as we would like. And so

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<v Speaker 2>I certainly wouldn't bet a great deal on the Court

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<v Speaker 2>doing what I think the law requires it to do

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<v Speaker 2>in this situation. So the ultimate outcome of these efforts

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<v Speaker 2>may be to educate the public and to focus on

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<v Speaker 2>the degree to which Donald Trump cannot be trusted to

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<v Speaker 2>enforce the constitution and preserve democracy. That may be the

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<v Speaker 2>principal effect, whether it keeps him off the ballot, in

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<v Speaker 2>the long run, and the ultimate confrontation with the incumbent

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<v Speaker 2>president is a different matter and harder to predict.

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<v Speaker 1>Timing seems to be a problem. There's limited time. Do

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<v Speaker 1>you think that this can get to the Supreme Court

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<v Speaker 1>before the primaries are over?

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

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<v Speaker 2>Thingings can move very quickly through the courts. When the

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<v Speaker 2>courts see that they will become moot unless something is done.

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<v Speaker 2>I mean, it would be quite a disaster for the

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<v Speaker 2>nominee of a major political party to be running at

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<v Speaker 2>a time when the primaries are over, the convention is over,

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<v Speaker 2>and then there is litigation over whether that person needs

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<v Speaker 2>to be taken off the ballot because of a constitutional disability.

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<v Speaker 2>That's not the right time to do it. The right

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<v Speaker 2>time to do it is before the convention.

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<v Speaker 1>In your article, you mentioned the concerns of former federal

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<v Speaker 1>judge and Stanford law professor Michael McConnell, who's written that

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<v Speaker 1>empowering partiesan politicians such as state secretaries of state to

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<v Speaker 1>disqualify their political opponents from the ballot deprives voters of

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<v Speaker 1>electing candidates of their choice, and if abused, could be

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<v Speaker 1>profoundly anti democratic. How do you answer his concerns?

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<v Speaker 2>Well, Judge Ludig and I have both said that he

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<v Speaker 2>has it backwards. It's the most democratic thing of all

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<v Speaker 2>to insist that the constitutional provision designed to protect democracy

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<v Speaker 2>from those who would overturn it in violation of the

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<v Speaker 2>rule of law. To ensure that that's enforced. To say

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<v Speaker 2>that the people have a right to elect whoever they

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<v Speaker 2>want is to ignore the fact that a lot of

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<v Speaker 2>people that someone might want to elect. A lot of

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<v Speaker 2>Democrats might want to elect Barack Obama again, but under

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<v Speaker 2>the constitution he can't run again because of the term limit.

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<v Speaker 2>Some people might want to elect a brilliant thirty four

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<v Speaker 2>year old, but that person is not qualified to run.

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<v Speaker 2>Some people, I think, would like to elect, you know,

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<v Speaker 2>someone who was not a natural born citizen, but they

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

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

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<v Speaker 2>having your way, no matter. What means abiding by the

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<v Speaker 2>rule of law, and certainly part of the rule of

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<v Speaker 2>law is that those who try to shredd it the

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<v Speaker 2>way that Donald Trump actually said that he would like

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<v Speaker 2>to terminate the Constitution Judge Luvigno quote his language to

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<v Speaker 2>that effect in our article in The Atlantic. Democracy can't

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<v Speaker 2>survive with people like that being presented as hide pipers

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<v Speaker 2>to lead the country down at primrose paths toward terrible

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<v Speaker 2>antidemocratic destruction.

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<v Speaker 1>The only time I saw that this provision in one

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<v Speaker 1>hundred and fifty years has been used to disqualify and

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<v Speaker 1>official was a state judge in New Mexico who removed

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<v Speaker 1>a county commissioner from office because he participated in the

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<v Speaker 1>January sixth attack. Is that the only time you know

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<v Speaker 1>of two?

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

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<v Speaker 2>earlier ones. Certainly when Madison Cowthorn was ruled by the

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<v Speaker 2>Fourth Circuit to be disqualified under this provision, that became moot.

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<v Speaker 2>So that happened fairly recently, but it became moot when

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<v Speaker 2>he lost his re election attempt. So there are some

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<v Speaker 2>recent efforts. But we shouldn't get distracted by how rarely

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<v Speaker 2>this provision has been used. It's been used rarely because

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<v Speaker 2>we rarely have people take an oath to the Constitution

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<v Speaker 2>and then become actively engaged in trying to overturn it.

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<v Speaker 1>You acknowledge in the article you and Judge Ludig that

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<v Speaker 1>this could give rise to quote momentary social unrest and

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<v Speaker 1>even violence. So does that mitigate against using it in

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<v Speaker 1>our already divided country.

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<v Speaker 2>No, because that would give power to destroy democracy and

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<v Speaker 2>end the rule of law. Those people who threaten violence.

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<v Speaker 2>We have to have the courage of our convictions. We

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<v Speaker 2>can't simply turn our backs on the constitution because some

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<v Speaker 2>people brandish weapons and say that if you enforce it,

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

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<v Speaker 2>that's what a lot of people are saying now in

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<v Speaker 2>the pending proceedings criminal and civil against people like Donald Trump,

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<v Speaker 2>and we just cannot let the terrorists have their way.

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<v Speaker 1>In your heart of hearts, do you think that this

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<v Speaker 1>will just end up being instructive, as you mentioned before

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<v Speaker 1>for Americans, or that it will actually work to stop

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<v Speaker 1>Trump from being on the ballot.

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<v Speaker 2>You know, I have been so busy trying to help

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<v Speaker 2>figure out how to do it right and what that

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<v Speaker 2>just means that I have put away my little crystal ball.

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<v Speaker 2>I'm not sure that it's all that accurate anyway. So

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<v Speaker 2>I'm just I'm just plodding away one foot at a time,

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<v Speaker 2>and I'm not going to make long term predictions.

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<v Speaker 1>Okay, fair enough, so I like the crystal ball a lot.

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<v Speaker 1>Thanks so much, Professor Tribe.

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<v Speaker 2>Thank you, thank you.

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<v Speaker 1>That's Constitutional law scholar and Harvard Law professor Lawrence Tribe.

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

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<v Speaker 1>Remember you can always get the latest legal news on

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

0:15:44.840 --> 0:15:49.920
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0:15:50.320 --> 0:15:52.880
<v Speaker 1>And remember to tune into The Bloomberg Law Show every

0:15:52.920 --> 0:15:56.840
<v Speaker 1>weeknight at ten pm Wall Street Time. I'm June Grosso,

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<v Speaker 1>and you're listening to Bloomberg