For Corky Messner, it started a few weeks ago, with an article in The Atlantic. For Larry Caplan, it started with a colleague suggesting that Donald Trump might not be eligible to serve as president. For Ron Fein, it was a cause he’d pursued for years.
All three men are intrigued by the argument that the 14th Amendment, which bars anyone who’s “engaged in insurrection or rebellion” from federal office, applies to the 45th president of the United States.
They don’t know each other, they don’t share the same politics, and they’re not alone. In the three weeks since the New York Times first reported on a law review article on the subject, people who believe that Trump might be disqualified have sought meetings and filed lawsuits across multiple states, drawing the attention of presidential candidates, governors, and state election officials along the way.
Last year, Fein and his group Free Speech for People organized lawsuits against several members of Congress who supported Trump’s effort to overturn the 2020 election, making the 14th Amendment case, but losing in district court.
In an interview, Fein said he was “thrilled” to see the idea picking up momentum. His group already has a two-track plan for success: Meetings with state election officials, which have been happening since 2021, and “legal challenges on behalf of voters” in key states, which will be coming once Trump begins filing in GOP primaries. On Wednesday, Fein sent fresh letters to election officials in Florida, New Hampshire, New Mexico, Ohio, and Wisconsin, urging another look at the “Insurrectionist Disqualification Clause” of the Constitution.
“We would accept a ruling from the U.S. Supreme Court,” Fein told Semafor. “We’re not sure that Trump would.”
James Bopp, Jr., a Republican attorney who beat back some of the 2022 lawsuits, called the new effort “dangerous beyond comprehension,” a Democratic ploy that was being laundered by a handful of conservative lawyers. (Former Judge J. Michael Luttig co-authored The Atlantic piece with liberal academic Laurence H. Tribe; William Baude and Michael Stokes Paulsen, who wrote the law review article, are members of the Federalist Society.)
“This isn’t voter fraud — this is overturning the election,” said Bopp. “It’s not just anti-democratic, it’s actually revolutionary, in terms of overturning our system. I don’t see how our constitution and system of government would survive.”
When a (Trump-appointed) judge agreed sided with Bopp’s argument that the 14th Amendment’s third clause didn’t prevent then-Rep. Madison Cawthorn from seeking another term, interest in this idea seemed to be fading. But while that high-profile case ended in defeat for Fein, a New Mexico court forced a county commissioner candidate off the ballot over his participation in the Jan. 6 riot, which helped keep it in circulation for its eventual revival.
I was surprised by how two articles — one skimmable in a few minutes, one worth reading at length — got so many kinds of people interested in the 14th Amendment route. It’s especially notable how much of the energy around the issue has come from the former president’s critics on the right, rather than his more traditional opponents on the left.
The day after the Times piece ran, former Arkansas Gov. Asa Hutchinson told reporters in Iowa that there was a looming question of whether Trump would “be disqualified from a constitutional standpoint.” He reiterated that at last week’s debate in Milwaukee, though no other Republican hopeful followed up.
But even just mentioning this had an impact. Caplan, a Florida attorney, told Semafor that he started to research the relevant constitutional law after the debate, and — acting on his own, not consulting local Democrats — filed his brief. He did not want Trump back in office: “If he were elected again,” he said, “I think it could be the end of what we know as American democracy.”
That wasn’t Messner’s take. In 2020, he was the GOP’s nominee for U.S. Senate in New Hampshire; if Trump was qualified to run, and became the nominee, he said he’d probably vote for him. But after he read the Atlantic piece, he got nervous, and scheduled a meeting with Secretary of State David Scanlan. He wants to get a test case before the courts well ahead of the election, so judges can settle the matter one way or another.
“What Scanlan said to me was — gee, I’m aware of this issue, but I certainly cannot make a decision without some legal guidance,” Messner told Americana, who has retained counsel in Washington but has not filed anything yet. “My reaction to that was: I agree with you! If I were you, I’d want legal guidance. And that’s why I want to get this into the legal system as soon as possible.”
Messner’s meeting woke up the MAGA movement. On Monday, Turning Point USA President Charlie Kirk urged listeners of his podcast to call Scanlan and denounce an idea that would be a “death blow to the republic.” Kirk suggested, without evidence, that the plan had been hatched up “six to nine months ago,” agog at what he thought was coordination between pundits and attorneys.
Luttig dismissed that, and stood by his piece. “In my view, there is no question whatsoever that Sec. 3 of the 14th Amendment applies to the conduct of the former president in and around Jan. 6, 2021,” he told Semafor.
Messner said that his own email and phone calls were split 60/40, for and against the idea, even after the Kirk podcast. By mid-week both New Hampshire Gov. Chris Sununu and state GOP chairman Chris Ager had denounced the idea and promised that Trump would make the ballot. But on Wednesday, without consulting Messner or others, fringe presidential candidate John Anthony Castro filed a legal complaint in New Hampshire court, making the Trump eligibility argument.
Could denunciations by people like Sununu put the question to bed? No, not really. For one, every Democrat in an election management role was going to be asked about this. Two, according to Bopp, the idea that Trump had disqualified himself could travel to local election officials that nobody was bothering right now, people who could decide on their own that votes for the possible GOP nominee didn’t count.
The people advancing the theory rejected that scenario completely.
“We are reputable lawyers,” said Fein. “We are not Donald Trump’s legal team. We’re not going to engage in any illegal election activity.”
Room for Disagreement
The “Section 3” case, as it’s increasingly shorthanded, has picked up some support with anti-Trump pundits on the right, but also skepticism. New York Times columnist David French wrote that the Baude/Paulsen “argument may well represent the single most rigorous and definitive explanation of Section 3 ever put to paper,” though he’s worried the Supreme Court would not uphold it and the likely timing of a case could cause chaos in the election. Former Michigan Rep. Peter Meijer, who shares much of French’s politics, wanted the madness to stop: “I don’t give a damn what your ‘novel legal theory’ is, it will be far more corrosive to the body politic than whatever threat it is you think you’re ‘protecting’ the country from.”
The View From The Trump Campaign
The ex-president’s campaign has raised tens of millions of dollars in the wake of criminal investigations and indictment announcements; the idea that Trump’s enemies knew there was no way to beat him electorally was powerful.
“The people who are pursuing this absurd conspiracy theory and political attack on President Trump are stretching the law beyond recognition much like the political prosecutors in New York, Georgia, and DC,” said Trump spokesman Steven Cheung. “There is no legal basis for this effort except in the deranged minds of those who are pushing it.”
The View From Democrats
They aren’t pouncing on this. The Democratic National Committee declined to comment entirely on the lawsuits and theory; New Hampshire Democratic Party chairman Ray Buckley told Semafor that it amounted to “an internal conversation in the Republican Party.” Michigan Secretary of State Jocelyn Benson, asked about it on Monday, said very carefully that it would be up to other people to fight this out.
“The bottom line for me is, we’re going to follow the law,” Benson told MIRS News. “We’re going to follow the Constitution. We’re going to see how these constitutional and legal questions, which are not cut and dry, play out in the months ahead.”
- In the Associated Press, Nicholas Riccardi finds more liberal lawyers thinking about the theory, including Noah Bookbinder at D.C.-based Citizens for Responsibility and Ethics in Washington.
- In Reason, Stanford Law School Prof. Michael McConnell frets “that this approach could empower partisans to seek disqualification every time a politician supports or speaks in support of the objectives of a political riot.”