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August 22, 2023

Is Trump Ineligible for the Presidency?

By trying to make a constitutional case against the runaway Republican front-runner, the Trump haters are betraying their fear that he might just win.

The experts need to make up their minds.

Are the Democrats licking their lips at the prospect of running against Donald Trump again, or are they afraid that he might actually win and take “our democracy” with him?

It depends on whom you talk to.

Take CNN data analyst Harry Enten, for example, who doesn’t like what he sees in the numbers: “There are a lot of Democrats who simply can’t believe Donald Trump could be elected president again,” he says. “The polling indicates he is, in fact, in a stronger position at this point than he was during the entire 2020 campaign.”

Or MSNBC host Donny Deutsch, who recently warned about a Trump victory in 2024: “Make no mistake about it, and this is what I get so enraged with — not the far-right fringe, but the establishment Republicans. Do you not understand that if Donald Trump wins, nothing else matters? Because it’s over. … Freedom is over if Donald Trump gets elected, it’s that simple. No other issue matters.”

And then there’s National Review’s normally astute Andy McCarthy, who also thinks it’s simple, but in the opposite direction. “Very simple,” he tweeted. “Trump can’t win. 65% already against him. That’s before Dems launch barrage after getting him nominated. If we finally grasp that, his support will collapse. If not, we lose everything, and Dems use majorities to remake Supreme Court. Nominate him if you want, but that’s reality.”

Is that the reality? Is it really just that simple? Assuming that 65% polling information is correct, does McCarthy really think that even a single voter among the remaining 35% can be persuaded by a “barrage” of Democrat advertising? Does he think there’s some new and awful revelation about Trump that the Democrats are keeping under wraps until just the right moment? That’s the Trump base he’s talking about, and they’re not going anywhere. And if McCarthy honestly thinks that Trump’s support “will collapse” if only they’d come around to his “reality,” then he has no clue as to the stickiness of Trump’s supporters. No clue.

A couple of McCarthy’s fellow legal scholars certainly don’t share his confidence in a Trump loss. Otherwise, they wouldn’t be trying to claim that the Constitution disqualifies him from running. Here’s how those two “experts,” Mike Luttig and Larry Tribe, tee things up in The Atlantic:

As students of the United States Constitution for many decades — one of us as a U.S. Court of Appeals judge, the other as a professor of constitutional law, and both as constitutional advocates, scholars, and practitioners — we long ago came to the conclusion that the Fourteenth Amendment, the amendment ratified in 1868 that represents our nation’s second founding and a new birth of freedom, contains within it a protection against the dissolution of the republic by a treasonous president.“

Did you catch that last part about "a treasonous president”? That’s what they think Donald Trump is — for questioning the legitimacy of an undeniably odd election. Reaching back to Section 3 of the 14th Amendment, which was meant to keep the postbellum Southern states from sending their erstwhile Confederate leadership to Congress, Luttig and Tribe present the following language:

No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, 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. But Congress may by a vote of two-thirds of each House, remove such disability.

So Trump is constitutionally forbidden from being president because he engaged in an insurrection. Seems a bit of a stretch, doesn’t it?

To this, our Nate Jackson quipped, “The Democrats have finally found something that’s forbidden by the Constitution.”

And if the legal gymnastics of Luttig and Tribe aren’t enough to convince you to abandon Trump, there’s always former Arkansas Congressman and Governor Asa Hutchinson, an anti-Trump Republican who’s running for the GOP nomination in 2024: “I’m not even sure he’s qualified to be the next president of the United States,” said the guy who’s currently polling at around 1%. “And so you can’t be asking us to support somebody that’s not perhaps even qualified under our Constitution. And I’m referring to the 14th Amendment.”

Thankfully, though, we have another constitutional scholar, Jonathan Turley, who doesn’t see things quite this way. Indeed, Turley calls the Trump-haters’ 14th Amendment play “the ultimate Hail Mary pass if four indictments, roughly 100 criminal charges, and more than a dozen opposing candidates fail to get the job done.”

Turley continues: “As scary as it might sound to some, Trump can indeed take office if he is elected … even if he is convicted. Indeed, he can serve as president even in the unlikely scenario that he is sentenced to jail. … I have strongly rejected this interpretation for years, so it is too late to pretend that I view this as a plausible argument.”

We’ll let the legal scholars battle it out, and let the candidates settle things at the ballot box. But as for the possibility of a Trump victory, the fear on the Left is real. Otherwise, they wouldn’t be frantically dusting off their copies of the Constitution.

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