As GOP front-runner Donald Trump battles criminal charges in four separate cases, he is also beginning to confront another legal threat to his candidacy: the growing flurry of lawsuits across the country that attempt to declare the former president ineligible to serve again due to his role in the violence of Jan. 6, 2021.
A New Hampshire lawsuit filed Aug. 27 by long-shot Republican presidential candidate John Anthony Castro of Texas is just one in an early crop of cases built around Section Three of the 14th Amendment of the Constitution. The post-Civil War provision sought to prevent prominent Confederates from taking power by barring from major elected office those who, “having previously taken an oath . . . to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”
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In addition to the New Hampshire case, which argues that Trump’s behavior on Jan. 6 constituted “aid or comfort” to the rioters who stormed the Capitol, other lawsuits have surfaced in Florida, Arkansas, and Michigan, with more expected in the coming weeks.
Many of the early cases were brought by relative unknowns, or voters representing themselves, and face steep procedural hurdles, including questions over whether those filing them have appropriate “standing” to sue or whether they are bringing the cases to the right venue at the right time. But even if this first batch of lawsuits doesn’t prove particularly strong, “the Section Three issue is a serious one” that “could be a serious obstacle to [Trump’s] candidacy,” said Derek Muller, an election law expert and professor at the University of Notre Dame Law School.
“Most of these cases will go nowhere, especially at this stage . . . but there will be serious legal challenges coming,” Muller predicted. “It’s going to be seriously debated in some courts, somewhere, this winter, and I think it has the potential to exclude Trump from the ballot in some states. . . . I don’t know that it’s likely, but it’s possible.”
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In a statement last month, Trump campaign spokesperson Steven Cheung dismissed the legal challenges as an “absurd conspiracy theory” and “political attack.”
“There is no legal basis for this effort except in the minds of those who are pushing it,” Cheung added.
The New Hampshire case faces a particularly challenging road ahead, legal experts said, in large part because it may be coming too early. The issue of Trump’s eligibility as a candidate may not yet be “ripe” for a court to weigh in on, scholars said, because New Hampshire has not yet begun its formal filing process for presidential hopefuls and, thus, Trump is not yet officially a candidate. There are other significant questions about timing, too — such as how courts will judge Trump’s role in the Jan. 6 riots before he stands trial next year on related criminal charges.
Laurence H. Tribe, an emeritus law professor at Harvard, has long argued that Trump’s actions on Jan. 6 should disqualify him. But he called the New Hampshire case “a rather skeletal effort to tee up the issue,” and said a similar effort in Florida “doesn’t have any legs at all.”
“My sense is that the heftier suits against other state secretaries of state that will likely be filed soon have a better chance of success,” he said.
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The Section Three argument for Trump’s disqualification is not an entirely new one; Democratic groups and scholars have been making the case for years, and it has been tested in a handful of lawsuits against lower-profile candidates accused of playing some role in the Jan. 6 insurrection. But the legal theory has gained significant heft in recent weeks, after two conservative legal scholars published a 126-page law review article charting the legal history and power of the provision.
“The bottom line is that Donald Trump both ‘engaged in’ ‘insurrection or rebellion’ and gave ‘aid or comfort’ to others engaging in such conduct, within the original meaning of those terms as employed in Section Three of the Fourteenth Amendment,” wrote William Baude and Michael Stokes Paulsen, both members of the conservative Federalist Society. “If the public record is accurate, the case is not even close. He is no longer eligible to the office of Presidency, or any other state or federal office covered by the Constitution. All who are committed to the Constitution should take note and say so.”
Tribe called their work “really comprehensive and devastating,” and said it “clears the path nationally for lots of people to take this seriously.”
“If it were only liberals like me who said this,” he added, “people on the right [could] simply dismiss these things and say it’s purely political.”
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Now, though, the legal theory is resonating even among conservatives, and it has moved from the realm of academic debate onto the campaign trail.
Former Arkansas governor Asa Hutchinson has raised the issue of Trump’s eligibility repeatedly, including at the first Republican debate last month, where he cited conservative legal scholars saying Trump “may be disqualified under the 14th Amendment from being president again.”
Merits of the legal argument aside, political and logistical risks abound for Trump opponents pursuing it as a means to bar the former president from the White House. Taking Trump off the ballot could create an inconsistent mess of the country’s electoral map, with him potentially competing in some but not all states, or lend fuel to supporters who believe any legal or criminal proceedings against Trump are politically motivated shams.
James Bopp Jr., an Indiana attorney who represented Representative Marjorie Taylor Greene in a similar lawsuit challenging her eligibility under Section Three, rejected the theory that the Constitution disqualifies Trump.
“Under the law, it was not an insurrection, and Trump did not . . . engage in that invasion of the Capitol,” he said. Bopp warned that should the legal arguments succeed in striking Trump from some state’s ballots, it “would result in extreme chaos that our system could never adjudicate.”
As the lawsuits pile up, party leaders and state elections officials across the country are beginning to weigh their options and seek legal advice.
The New Hampshire attorney general’s office is “is now carefully reviewing the legal issues involved,” a spokesperson said recently, and has not taken a position. The New Hampshire GOP, meanwhile, has vowed to “actively” defend Trump’s ballot eligibility.
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A spokesperson for Attorney General Andrea Campbell of Massachusetts declined comment, and a spokesperson for Secretary of State William F. Galvin said, “it would be premature for the secretary to make any determinations about candidate eligibility.”
Even as it builds support from legal experts on both sides of the aisle, the theory remains relatively untested, and there are scholars who doubt its significance. So far, Section Three has been wielded in a handful of lawsuits, with mixed results.
In the case against Greene, a Georgia administrative law judge found no evidence that she had engaged in insurrection, and she was deemed eligible to run for reelection. But in New Mexico, a Jan. 6 rioter who had been convicted of trespassing on Capitol grounds was removed from his role as an elected county commissioner.
Steven Porter of the Globe staff contributed to this report.
Emma Platoff can be reached at emma.platoff@globe.com. Follow her @emmaplatoff.