Alternate Title: Critique of Baude & Paulsen (2023), Part 3

As you may have heard by now (see here, for example), multiple efforts are afoot in various States to disqualify Donald Trump from the ballot box under the disqualification clause of the 14th Amendment. This dangerous and misguided movement has been bolstered by a 126-page law review article (see here), which mistakenly claims, among other things, that the disqualification clause is “self-executing” and that due process rights are somehow inapplicable to disqualification cases. For my part, I have already debunked the completely bogus “self-execution” argument here and here. Today, by contrast, I will explain why due process of law is never optional and why the disqualification clause cannot be self-executing without violating the right to due process. Simply put, before someone can be disqualified from running for federal office, that someone (even Mr Trump) is entitled to a fair hearing before a regular court of law.

Recall what the disqualification clause does: it disqualifies from federal office anyone “who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, 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.” In other words, this provision poses several novel questions of law and fact, and these questions must at some point be adjudicated by a regular court of law. Among these novel legal questions are:

1. Is the president an “officer of the United States”?
2. What state of affairs constitutes an “insurrection or rebellion”?
3. Who decides who the “enemies” of the United States are?
4. And what constitutes the giving of “aid or comfort” to those enemies?

In addition to these questions of law, a court would also have to apply the law to the facts. But what are the facts? In the case of Trump, a court would have to decide whether the riot at the U.S. Capitol on January 6, 2021 constituted an insurrection or rebellion and whether any of the former president’s actions or omissions on that fateful day could be construed as giving aid or comfort to the enemies of democracy under the 14th Amendment.

Frankly, a strong case can be that Trump deserves to be disqualified for his provocative tweets on J-6 or for his extended “radio-silence” on that fateful day, when he refused to address the nation until after the riot was over. But the point I am trying to make here is that it does not matter what I think — or what pundits like William Baude or Larry Tribe think — about J-6. What matters here is what the courts decide, and a court cannot decide these questions of law and fact without complying with the rudiments of due process, i.e. without at a minimum giving Trump a fair hearing.

Suffice it to say, due process is not some minor detail that we can dispense with whenever we don’t like a person or his alleged actions, no matter how heinous or evil. Why not? Because due process is the bedrock of our Anglo-American legal system. Period, full stop. Even the Nazi war criminals were entitled to due process during the Nuremberg trials.