Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
Speaker 1: Donald Trump is facing four criminal trials, two over his
Speaker 1: efforts to overturn the twenty twenty election, with the federal
Speaker 1: charges specifically accusing him of conspiring to obstruct the congressional
Speaker 1: confirmation of Joe Biden's victory on January sixth. Despite that,
Speaker 1: Trump remains far and away the front runner for the
Speaker 1: Republican presidential nomination. But now the former president is facing
Speaker 1: a different legal battle that could sideline him an effort
Speaker 1: to keep him off the ballot. Prominent liberal and conservative
Speaker 1: scholars are increasingly raising a constitutional argument that Trump's actions
Speaker 1: on January sixth disqualify him under Section three of the
Speaker 1: fourteenth Amendment, which bars people from holding office if they
Speaker 1: took an oath to support the Constitution and later engaged
Speaker 1: in insurrection or rebellion. My guest is one of those
Speaker 1: liberal scholars, Professor Lawrence Tribe of Harvard Law School. He's
Speaker 1: written an article in the Atlantic with former federal judge
Speaker 1: Michael Ludig entitled the Constitution prohibits Trump from ever being
Speaker 1: President again. For those who haven't heard about the Fourteenth
Speaker 1: Amendment's disqualification clause. Will you explain it and its relevance
Speaker 1: to trump?
Speaker 2: Sure? After the Civil War, the framers of the Fourteenth Amendment,
Speaker 2: which was one of the main provisions that basically restructured
Speaker 2: the Constitution and made it possible for the Confederate States
Speaker 2: to rejoin the Union after the Civil War, the framers
Speaker 2: of the Fourteenth Amendment wanted to protect against anyone in
Speaker 2: the future who would take an oath to support the
Speaker 2: Constitution and then turn their back on it and engage
Speaker 2: in basically treason against the Republic by or engaging in,
Speaker 2: or giving aid and comfort to an insurrection against the
Speaker 2: Constitution of the United States. And so there was a
Speaker 2: very explicit provision written into the Fourteenth Amendment, which became
Speaker 2: part of the Constitution in eighteen sixty eight, saying that
Speaker 2: anyone like that could never again hold office any office
Speaker 2: in the United States, not just president, but you know,
Speaker 2: anything down to dogcatcher. However, that disability could be lifted
Speaker 2: by a two thirds vote of both houses of Congress,
Speaker 2: so that was a safeguard against this being abused. This
Speaker 2: hasn't been used very often since the Civil War, but
Speaker 2: that's because we haven't had very many people who've taken
Speaker 2: an oath to the Constitution and then basically made war
Speaker 2: on the Constitution itself by doing the kind of thing
Speaker 2: that many people believe Donald Trump did, namely encouraging an insurrection,
Speaker 2: trying to have fake ballots, the whole nine yards, basically
Speaker 2: trying to undo the Constitution's main sort of the beating
Speaker 2: heart of the Constitution, the part that is guaranteed from
Speaker 2: the beginning of the Republic that we would transfer power
Speaker 2: peacefully from one president to the next. The Civil War
Speaker 2: was one kind of insurrection. What happened on the lead
Speaker 2: up to January sixth was another. And so a number
Speaker 2: of people around the country, including a very conservative former
Speaker 2: federal judge, Judge Michael Lutig, and I have been writing
Speaker 2: about this constitutional provision, which many people think, including us,
Speaker 2: applies like a glove to Donald J. Trump, and whether
Speaker 2: that his story is not going to keep him off
Speaker 2: the ballot is something that's being teed up for litigation
Speaker 2: all around the country.
Speaker 1: So Trump is facing two criminal trials over his efforts
Speaker 1: to overturn the election results. Some people might say we
Speaker 1: should wait to see if he's convicted before we see
Speaker 1: if he falls under Section three.
Speaker 2: Yeah, that would be a big mistake because this section
Speaker 2: has nothing to do with punishing someone for crimes. In fact,
Speaker 2: one of the main reasons that it was written was
Speaker 2: the recognition that the president at the time, Andrew Johnson,
Speaker 2: wasn't about to have a Justice Department prosecute anyone for
Speaker 2: anything that was related to the attempt to overturn the
Speaker 2: Constitution of the United States. He, in fact, Johnson pardoned insurrectionists.
Speaker 2: So they wanted a provision that was quite independent of
Speaker 2: criminal prosecution or of civil suits, that would operate directly
Speaker 2: to disqualify anyone who took an oath and then engaged
Speaker 2: in or gave aid and comfort to an insurrection against
Speaker 2: the Constitution. So whatever happens in these criminal trials, which
Speaker 2: are very important in terms of holding various people, not
Speaker 2: just Donald Trump, but the eighteen others that Manny Willis
Speaker 2: has indicted under the Rico statu or the unindicted co conspirators,
Speaker 2: many of whom may end up being indicted by jack Smith,
Speaker 2: whatever happens to them has to do with whether they
Speaker 2: spend years in prison or not, not on whether they
Speaker 2: can again hold power. That's a different matter. This disqualification
Speaker 2: therefore has nothing to do with the pending criminal proceedings.
Speaker 1: Is it a problem or concern that several judgment calls
Speaker 1: have to be made on this issue that there's no
Speaker 1: clear authority on and it's still being debated. For example,
Speaker 1: does Congress have to pass a law to enforce the ban?
Speaker 2: So it's pretty clear to me and the judge Looting,
Speaker 2: and to the conservative scholars who have written a major
Speaker 2: piece about this, but Congress needn't pass the law to
Speaker 2: enforce it. It's simply self enforcing in the sense that
Speaker 2: anyone who engages in an insurrection after taking an oath
Speaker 2: or gives aid and comfort to it disqualified. That doesn't
Speaker 2: mean that it kind of leaps up off the page
Speaker 2: and points directly to Donald Trump or Rudy Giuliani or
Speaker 2: anybody else. It does have to be applied, and that's
Speaker 2: why there are lawsuits that are being planned as we speak,
Speaker 2: lawsuits against various secretaries of States and other lawsuits saying
Speaker 2: that in the discharge of their responsibility to decide who
Speaker 2: is on the ballot, they need to conduct hearings on
Speaker 2: whether indeed Donald Trump did what it appears that he did,
Speaker 2: namely engage in or give aid and comfort to an
Speaker 2: insurrection that won't happen without hearings. Those hearings are to
Speaker 2: be independently important, valuable, educational. Hopefully they'll be tried on television.
Speaker 2: They're not criminal trials. The y to be evidentiary hearings
Speaker 2: to determine the kind of thing that the January sixth
Speaker 2: Committee determined, and to determine who was engaged in this
Speaker 2: interaction and who is disqualified.
Speaker 1: I know a Florida lawyer last week filed one of
Speaker 1: the first challenges to Trump running under the fourteenth Amendment.
Speaker 1: He said it was your analysis and Judge LUDIGX that
Speaker 1: convinced him. On Monday, a Michigan resident file the challenge there.
Speaker 2: So sorry to interrupt sure that lawsuit. I mean, it's
Speaker 2: very nice that he says Judge Lutig and I persuaded him.
Speaker 2: But he doesn't really have any obvious standing in that case.
Speaker 2: He says that he's injured because he voted ever since
Speaker 2: he was eighteen. Well, I entitle him to sue Donald Trump.
Speaker 2: As far as I can tell. It's competitors to Donald
Speaker 2: Trump who might sue. And in some states the voters
Speaker 2: have standing to bring lawsuits against the Secretary of State
Speaker 2: to get an injunction to order the Secretary of State
Speaker 2: to conduct the proceeding to decide who is disqualified. Those
Speaker 2: are the suits that I would watch more seriously.
Speaker 1: Free speech for people is sending letters to secretaries of
Speaker 1: state asking them to Bartrump from the ballot, and actually
Speaker 1: including draft language for a declaration that could be used
Speaker 1: to exclude him from primary ballots. Do you see that
Speaker 1: as a way to go to appeal to secretaries of states?
Speaker 2: It seems to me that's a first step that is
Speaker 2: either free speech for people or some other group could
Speaker 2: even be Chris Christie or Asa Hutchinson could ask secretaries
Speaker 2: of state in states whose laws provide for this to
Speaker 2: conduct proceedings to decide whether or not Donald Trump is
Speaker 2: eligible to vote. I think simply asking the secretary of
Speaker 2: State to make a declaration may be a little bit
Speaker 2: short circling what should happen. It seems to me that
Speaker 2: secretaries of state should be asked to make a determination,
Speaker 2: which may involve taking evidence and conducting hearings and then
Speaker 2: declaring their conclusion.
Speaker 1: So you write that these disqualification efforts will naturally lead
Speaker 1: to the courts and there'll be conflicting rulings. So will
Speaker 1: this necessarily end at the Supreme Court with its super
Speaker 1: conservative majority.
Speaker 2: I think that's very likely, and that's why I've said
Speaker 2: in many contexts that this will be quite a test
Speaker 2: for the Supreme Court whether it is going to be
Speaker 2: influenced beyond the law and beyond reason by its conservative inclinations.
Speaker 2: Conservative in a partisan sense, Conservatives like Judge Loutig, and
Speaker 2: like professors Bodie and Paulson who wrote the blockbuster article
Speaker 2: that's coming out soon explaining why this provision means what
Speaker 2: it says, Their conservatism leads them to say that Donald
Speaker 2: Trump is disqualified. A lot of people worry me among
Speaker 2: them that some of the conservatives on the current court
Speaker 2: are not as principled as we would like. And so
Speaker 2: I certainly wouldn't bet a great deal on the Court
Speaker 2: doing what I think the law requires it to do
Speaker 2: in this situation. So the ultimate outcome of these efforts
Speaker 2: may be to educate the public and to focus on
Speaker 2: the degree to which Donald Trump cannot be trusted to
Speaker 2: enforce the constitution and preserve democracy. That may be the
Speaker 2: principal effect, whether it keeps him off the ballot, in
Speaker 2: the long run, and the ultimate confrontation with the incumbent
Speaker 2: president is a different matter and harder to predict.
Speaker 1: Timing seems to be a problem. There's limited time. Do
Speaker 1: you think that this can get to the Supreme Court
Speaker 1: before the primaries are over?
Speaker 2: Well, I think there's a very good chance it will.
Speaker 2: Thingings can move very quickly through the courts. When the
Speaker 2: courts see that they will become moot unless something is done.
Speaker 2: I mean, it would be quite a disaster for the
Speaker 2: nominee of a major political party to be running at
Speaker 2: a time when the primaries are over, the convention is over,
Speaker 2: and then there is litigation over whether that person needs
Speaker 2: to be taken off the ballot because of a constitutional disability.
Speaker 2: That's not the right time to do it. The right
Speaker 2: time to do it is before the convention.
Speaker 1: In your article, you mentioned the concerns of former federal
Speaker 1: judge and Stanford law professor Michael McConnell, who's written that
Speaker 1: empowering partiesan politicians such as state secretaries of state to
Speaker 1: disqualify their political opponents from the ballot deprives voters of
Speaker 1: electing candidates of their choice, and if abused, could be
Speaker 1: profoundly anti democratic. How do you answer his concerns?
Speaker 2: Well, Judge Ludig and I have both said that he
Speaker 2: has it backwards. It's the most democratic thing of all
Speaker 2: to insist that the constitutional provision designed to protect democracy
Speaker 2: from those who would overturn it in violation of the
Speaker 2: rule of law. To ensure that that's enforced. To say
Speaker 2: that the people have a right to elect whoever they
Speaker 2: want is to ignore the fact that a lot of
Speaker 2: people that someone might want to elect. A lot of
Speaker 2: Democrats might want to elect Barack Obama again, but under
Speaker 2: the constitution he can't run again because of the term limit.
Speaker 2: Some people might want to elect a brilliant thirty four
Speaker 2: year old, but that person is not qualified to run.
Speaker 2: Some people, I think, would like to elect, you know,
Speaker 2: someone who was not a natural born citizen, but they
Speaker 2: can't do that because someone like Janet Granholm, who's a
Speaker 2: very impressive woman, was born in Canada. Democracy doesn't mean
Speaker 2: having your way, no matter. What means abiding by the
Speaker 2: rule of law, and certainly part of the rule of
Speaker 2: law is that those who try to shredd it the
Speaker 2: way that Donald Trump actually said that he would like
Speaker 2: to terminate the Constitution Judge Luvigno quote his language to
Speaker 2: that effect in our article in The Atlantic. Democracy can't
Speaker 2: survive with people like that being presented as hide pipers
Speaker 2: to lead the country down at primrose paths toward terrible
Speaker 2: antidemocratic destruction.
Speaker 1: The only time I saw that this provision in one
Speaker 1: hundred and fifty years has been used to disqualify and
Speaker 1: official was a state judge in New Mexico who removed
Speaker 1: a county commissioner from office because he participated in the
Speaker 1: January sixth attack. Is that the only time you know
Speaker 1: of two?
Speaker 2: Well, that's the only modern time. There may be some
Speaker 2: earlier ones. Certainly when Madison Cowthorn was ruled by the
Speaker 2: Fourth Circuit to be disqualified under this provision, that became moot.
Speaker 2: So that happened fairly recently, but it became moot when
Speaker 2: he lost his re election attempt. So there are some
Speaker 2: recent efforts. But we shouldn't get distracted by how rarely
Speaker 2: this provision has been used. It's been used rarely because
Speaker 2: we rarely have people take an oath to the Constitution
Speaker 2: and then become actively engaged in trying to overturn it.
Speaker 1: You acknowledge in the article you and Judge Ludig that
Speaker 1: this could give rise to quote momentary social unrest and
Speaker 1: even violence. So does that mitigate against using it in
Speaker 1: our already divided country.
Speaker 2: No, because that would give power to destroy democracy and
Speaker 2: end the rule of law. Those people who threaten violence.
Speaker 2: We have to have the courage of our convictions. We
Speaker 2: can't simply turn our backs on the constitution because some
Speaker 2: people brandish weapons and say that if you enforce it,
Speaker 2: and you'll get a bullet in the back. I mean,
Speaker 2: that's what a lot of people are saying now in
Speaker 2: the pending proceedings criminal and civil against people like Donald Trump,
Speaker 2: and we just cannot let the terrorists have their way.
Speaker 1: In your heart of hearts, do you think that this
Speaker 1: will just end up being instructive, as you mentioned before
Speaker 1: for Americans, or that it will actually work to stop
Speaker 1: Trump from being on the ballot.
Speaker 2: You know, I have been so busy trying to help
Speaker 2: figure out how to do it right and what that
Speaker 2: just means that I have put away my little crystal ball.
Speaker 2: I'm not sure that it's all that accurate anyway. So
Speaker 2: I'm just I'm just plodding away one foot at a time,
Speaker 2: and I'm not going to make long term predictions.
Speaker 1: Okay, fair enough, so I like the crystal ball a lot.
Speaker 1: Thanks so much, Professor Tribe.
Speaker 2: Thank you, thank you.
Speaker 1: That's Constitutional law scholar and Harvard Law professor Lawrence Tribe.
Speaker 1: And that's it for this edition of The Bloomberg Law Show.
Speaker 1: Remember you can always get the latest legal news on
Speaker 1: our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify,
Speaker 1: and at www dot bloomberg dot com slash podcast Slash Law,
Speaker 1: And remember to tune into The Bloomberg Law Show every
Speaker 1: weeknight at ten pm Wall Street Time. I'm June Grosso,
Speaker 1: and you're listening to Bloomberg