Former governor and current 2024 Republican presidential candidate Asa Hutchinson (R-AR) was interviewed by CNN‘s State of the Union where he remarked that the current Republican frontrunner, Donald Trump, has a high risk of being disqualified president on legal grounds. “I’m not even sure he’s qualified to be the next president of the United States, and so, you can’t be asking us to support someone who is perhaps not even qualified under the Constitution. I’m referring to the 14th Amendment that a number of legal scholars said that he is disqualified because of his actions on January 6,” said Hutchinson.
“There should be a court declaration, and so there would have to be a separate lawsuit that would be filed in which there would be a finding that the former president engaged in insurrection and that would disqualify him. The other way would be that if a specific state made that determination on their own, that would put the burden of someone else challenging that. Either way, it winds up in court. But I expect those lawsuits to be filed, I expect some states to take that action, but I think it’s a serious jeopardy for Donald Trump under our Constitution, not being qualified,” Hutchinson further pontificated.
While Hutchinson might fantasize about how January 6th would disqualify Mr. Trump from being the president and how a court could seriously entertain ruling in an uncontroversial legally airtight way in favor of such a prospect, this is highly unlikely. For one thing, none of the lawfare against former president Trump (currently) accuses him of engaging in an insurrection against the US government as the 14th Amendment would require for such a disqualification.
Secondly, even if a charge should be brought against Mr. Trump by a prosecutor it is not clear that such an indictment would pass constitutional muster given that this item was the subject of Mr. Trump’s second impeachment. The Constitution states that only in cases where a president was impeached and convicted in the Senate could he (or she) “be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” It is a matter of record that Trump was not convicted in the Senate and so it appears he cannot be “liable and subject” to a court proceeding over the same.
Thirdly, there is a strong argument that 14th Amendment’s disqualification clause does not apply to a person running for the presidency. As that clause puts it, “[n]o person shall be a Senator or Representative in Congress, or elector of President and Vice-President.” It may forbid someone from being an elector but not a president.
Other constitutional lawyers observe other problems with the use of the 14th Amendment against Trump. Robert Barnes writes, “We already had a Presidential candidate who was (unlike Trump) actually charged w/, convicted of, and in prison for sedition that sought the Presidential ballot. 1920, Eugene Debs. He was never denied access to the ballot.”
The key problem with this #Luttig argument is history. We already had a Presidential candidate who was (unlike Trump) actually charged w/, convicted of, and in prison for sedition that sought the Presidential ballot. 1920, Eugene Debs. He was never denied access to the ballot. https://t.co/pXIGwKAGev
— Robert Barnes (@barnes_law) August 20, 2023