Should Trump Be Barred from the Ballot? A Debate over the Insurrection Clause

AMY GOODMAN: This is Democracy Now!, democracynow.org, The War and Peace Report. I’m Amy Goodman, with Juan González.

Former President Trump is the clear front-runner in the race for the Republican nomination, despite the fact he faces 91 criminal charges in various cases related to mishandling classified documents, arranging payoffs, seeking to overturn the 2020 presidential election. It’s that last charge, related to the January 6, 2021, attack on the Capitol, that’s the cause of most controversy. There are efforts nationwide to remove Trump from the 2024 presidential ballot based on the 14th Amendment, which says public officials who have, quote, “engaged in insurrection,” unquote, are disqualified from ever serving again.

On February 8th, the Supreme Court will hear an appeal from Donald Trump, after judges in Colorado ruled the former president is ineligible to appear on the Colorado primary ballot. The secretary of state of Maine also barred Trump from the ballot, but a judge ruled he should stay on the ballot until the Supreme Court rules on the issue.

Did Trump violate the Constitution? Should he be barred from running for president? Or is taking Trump off the ballot an anti-democratic measure that will only energize his base?

We’re hosting a debate with two guests. In Washington, D.C., we’re joined by Praveen Fernandes, the vice president at the Constitutional Accountability Center, which filed an amicus brief in the Colorado lawsuit enforcing Trump’s constitutional disqualification. We’re also joined by Samuel Moyn, a professor of law and history at Yale University. His recent piece for The New York Times is headlined “The Supreme Court Should Overturn the Colorado Ruling Unanimously.” Professor Moyn is joining us today from Toronto.

Let’s begin with Praveen Fernandes. Talk about why you back these efforts, state by state, from Colorado to Maine, to take Trump off the ballot.

PRAVEEN FERNANDES: We’ve always been committed to enforcing the text and history of the Constitution, and that includes the text and history of Section 3 of the 14th Amendment. Here, for our democracy, it could not be more important than to hold accountable Donald Trump for his actions around January 6th, 2021. And so, this is important not only for holding Donald Trump accountable, but it’s also important for giving meaning to a constitutional provision that was designed precisely for instances just like this.

JUAN GONZÁLEZ: And, Samuel Moyn, you disagree. You’ve written in The New York Times that “To bar Mr. Trump from the ballot now would be the wrong way to show him to the exits of the political system, after all these years of strife.” Why do you think that?

SAMUEL MOYN: Donald Trump is clearly a menace, and getting rid of him is a huge priority, but everything depends on how it’s done. And I really have two concerns. First, a legal one. The legal case isn’t airtight under this provision of the Constitution. And the risk is that millions of Americans who back Trump and have looked past or forgiven what he did on January 6 will regard the Supreme Court’s intervention as illicit, much the way we all think Bush v. Gore was a tragic mistake. And then there’s strategy. I worry that getting rid of Trump this way could backfire. And in particular, it saves the Democrats from the obligation to make their case to the American people that they should win.

JUAN GONZÁLEZ: Praveen Fernandes, what about this issue of granting more power to the Supreme Court in terms of elections, and also the issue of how the Trump base might react to this removal of him from the ballot?

PRAVEEN FERNANDES: Well, I mean, I think we can have, you know, a separate conversation about whether the Supreme Court, as an institution, commands more power vis-à-vis the other branches, but there’s no reason for particular modesty for the U.S. Supreme Court with respect to enforcing Section 3 of the 14th Amendment. So I think that there’s no reason for the Supreme Court to run away from the text and history of this provision.

And I guess I’m skeptical of this notion that somehow leaving it to the voters is a better strategy. I think the voters certainly spoke in 2020 and resoundingly chose President Biden. President Trump at that time challenged the results of those elections in more than 60 cases and lost. And despite realizing that he lost, sometimes at the hands of judges that he had appointed, and despite all of his closest advisers explaining that he had lost, Trump and a violent faction of his supporters tried to wrest power by force, thwarting the will of the electorate. So, this notion that somehow leaving it to the voters will somehow get us out of this problem, I don’t think it’s convincing to me.

AMY GOODMAN: I’m wondering if Professor Moyn can give us the history of the 14th Amendment, and particularly Section 3. Talk about the Civil War and the decisions made afterwards to keep Confederates from running for office.

SAMUEL MOYN: It’s a great amendment. If that’s all there were in the Constitution, I’d be much more favorable to that document and to the Supreme Court interpreting it. And it was noble after the Civil War the Radical Republicans, who had done so much to free the slaves through war, to pass the 14th Amendment, which tried to impose democracy, after the war, on the South by keeping ex-Confederates, ex-insurrectionaries from running. And there’s no doubt that that was the purpose of Section 3.

There are a couple of problems, though. I admire Praveen, but there are just doubts about whether it’s applicable now, whether it covers presidents who were allegedly insurrectionaries, whether Congress has to act first. And there are other objections, too. But then there’s like a bigger issue, which is that Section 3 was passed after the Civil War, when the opposition, the insurrectionaries, had been beaten militarily. We’re in a situation in which Donald Trump is enormously popular. You said, Amy, that he trounced his opposition last night. And Democrats have to meet that opposition.

Now, Praveen is right that there’s a risk of violence, no matter what. But do we want to have another civil war, standing on some interpretation from five judges of an old document, or do we want the Democrats to offer a credible program for the future of America and then defend that, come what may?

JUAN GONZÁLEZ: Praveen, what about that argument, and also the viewpoint of some that this is an attempt to circumvent the democratic process and to use lawfare as a means of preventing a candidate from coming to office?

PRAVEEN FERNANDES: Well, I don’t think that this requirement is any more anti-democratic than a number of other constitutional requirements for the presidency. So, we’ve never left that just to the voters. The Constitution, as you know, sets an age requirement for the presidency — you have to be 35 — says you have to be naturally born, a natural-born citizen. So, we have never said, “Well, this is an immensely popular 29-year-old, so we should leave it to the voters.” Or the Constitution also provides that you can only serve two terms. So, if there’s an immensely popular president, we’ve never said, you know, “We should leave this to the voters.” This is a constitutional requirement.

And the Constitution itself is a democratically enacted instrument. So, it was not only democratically enacted, but it was adopted by the high thresholds that we have for constitutional provisions. It was passed by two-thirds majorities in the House and Senate. It was ratified by three-fourths of the states. And so, we, as a nation, have agreed to be bound to these rules in the Constitution. And so, I don’t think this is any more anti-democratic than a number of other constitutional provisions about the requirements and qualifications for the presidency.

AMY GOODMAN: Praveen —

PRAVEEN FERNANDES: And I also —

AMY GOODMAN: Go ahead.

PRAVEEN FERNANDES: I’m so sorry. I would also say I don’t think this is an either/or proposition. Where I agree with Professor Moyn is, certainly, there is a place for other candidates to make their case for a better and brighter vision for the nation and to win the public narrative strategy. And I don’t see that as an either/or situation. I think that has to happen, but that shouldn’t be a reason for us to run away from the text and history of this constitutional provision.

AMY GOODMAN: I wanted to also get your response to whether this applies to the president, and then also take that to: Should everyone convicted in 2021 — and there are hundreds and hundreds of people who have been convicted for their role in the insurrection — should they never be allowed to serve public office?

PRAVEEN FERNANDES: So, those are good questions. I’ll take the first one first. The subject of our amicus brief at the Constitutional Accountability Center in the Colorado case was on Section 3 of the 14th Amendment applying to the president as an officer and the presidency as an office. And we looked at the text and history of this amendment. We looked at the textual analysis, the enactment history, the documents, the debates around it.

And then we also looked at the plan that the framers had for Section 3 of the 14th Amendment. And it just doesn’t make any sense, in terms of another interpretation of this provision, not applying it to the president and the presidency. The worries that we see that the framers of this provision had, that officers who had broken their oath to support the Constitution would then be able to serve office again and be a destabilizing element in our democracy, makes no sense for the framers to have been worried about insurrectionist postmasters and low-level officials, but not concerned with the most powerful office in our land. So, I would say, yes, it does apply to the president as an officer of the United States, and it does apply to the presidency as an office under the United States.

JUAN GONZÁLEZ: But, Praveen —

PRAVEEN FERNANDES: And I think your second question — sorry. Yeah, please, go ahead.

JUAN GONZÁLEZ: Yeah, Praveen, I just wanted to ask you: Even supposing that Trump was in violation of Section 3, wouldn’t the proper remedy be to ask a federal district court to remove him from office if he’s elected, not for a state official to remove him from the ballot?

PRAVEEN FERNANDES: Well, so, that’s also a great question. It’s hard to see how that would be any more fair to voters, after they have cast ballots for somebody who is constitutionally ineligible to serve. This robs them of the choice to have voted for somebody else in the primary stage. If this is somebody who is constitutionally ineligible to serve, it’s hard to see how it would be more fair to allow the election to play out and then to take away their choice, as well as their option to have voted for somebody else, you know, if this had been determined earlier. So I think all parties are benefited from a clear decision from the Supreme Court earlier rather than later.

And if I could just backtrack to, I think it was, Amy’s question earlier about what this means for —

AMY GOODMAN: We have 10 seconds.

PRAVEEN FERNANDES: — other individuals who participated in the insurrection, I would just say that there’s a very narrow thing: This applies only to officers who took an oath and then violated it, so not just all the individuals.

AMY GOODMAN: We’re giving Professor Moyn the last word. You say that progressives should focus on making Biden a more appealing candidate than removing Trump from the ballot. Your final comments?

SAMUEL MOYN: Amy, in 1937, Franklin Roosevelt said, if you keep talking about saving democracy but you mean going back to the way it was, we don’t follow you. And these legalistic strategies, what Juan called “lawfare,” all the way back into the Trump presidency, have really been ways of trying to put things back the way they were, rather than recognizing that a lot of American people are willing to bracket Trump’s evil and vote for him anyway because the Democrats are not appealing. And that’s the challenge I think we all need to face, rather than side with centrist Democrats and Never Trump Republicans who just want to get rid of Trump as if nothing happened.

AMY GOODMAN: We want to thank you both for being with us. Samuel Moyn, professor of law and history at Yale University, we’ll link to your New York Times op-ed, “The Supreme Court Should Overturn the Colorado Ruling Unanimously.” And Praveen Fernandes, vice president of Constitutional Accountability Center, which filed an amicus brief in the Colorado lawsuit.

That does it for our show. Happy Birthday to Charina Nadura. I’m Amy Goodman, with Juan González.