Published in Lawfare February 24, 2003
Donald Trump’s recently announced campaign for a second term as president of the United States must overcome a major constitutional obstacle before the former chief executive faces voters in Republican primaries. The U.S. Constitution requires presidents to be over 35 years old, a U.S. citizen, a U.S. resident for at least 14 years, and, as decided by the 39th Congress in 1868, not a participant in any rebellion or insurrection against the United States. Section 3 of the 14th Amendment disqualifies any person from holding “any office, civil or military, under the United States, ... who, having previously taken an oath ... as an officer of the United States, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same.” As I have written previously, a historically informed interpretation of those terms leaves little doubt that Trump’s conduct on and immediately before Jan. 6, 2021, may fit the bill, although crucial facts necessary for disqualification are disputed. Likewise, Bruce Ackerman and Gerard Magliocca have argued that Trump can be barred from the presidency if Congress declares that, by encouraging the attack on the Capitol, Trump engaged in “insurrection or rebellion.”
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Mark A. Graber is the Regents Professor at the University of Maryland Francis King Carey School of Law.