Former President Donald Trump's remark earlier this month urging "termination" of the Constitution and installation of him as president underscores the urgency of legal action to bar him from ever again occupying the White House.
As I explained in a recent commentary ("Could Trump campaign from jail? Absolutely," Nov. 17), a criminal conviction, even incarceration, would not bar him from running, winning and serving again. The same Constitution he wants to set aside establishes only three exclusive eligibility requirements: 35 years of age, natural born citizenship, and residency in the country for 14 years. Lack of a criminal record, even a felony, is not one of them.
But the Star Tribune Editorial Board's proposed solution, calling for the Republican Party to "stop this sham of a candidacy," is anemic ("Trump is a threat to the Constitution," Dec. 8). Trump remains the most probable nominee of the GOP, although that obviously could change.
Still, rather than waiting helplessly for the party to derail that danger, there is another measure in the nation's governing instrument, which the ex-president wants to obliterate, that could and should be invoked to prevent a second Trump presidency. It is Section 3 of the 14th Amendment.
It would be the height of happy irony if a provision in the very Constitution that the ex-president has disclaimed becomes the tool to prevent him from wrecking it.
The post-Civil War 14th Amendment is best known for its due process and equal protection clauses. But the amendment's third section provides that "No person shall ... hold any office ... under the United States ... who, having previously taken an oath ... to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same ... ."
It is worth revisiting as we contemplate the horrific possibility that the 45th president might become the 47th.
None of the multitude of current investigations regarding Trump's conduct during or since his presidency is directed to that disqualification provision. So here is a modest proposal. Let a separate, free-standing, noncriminal civil proceeding be initiated, invoking the "insurrection" clause of the 14th Amendment. Such an approach would offer several advantages over waiting — and hoping — for the other criminal proceedings to play out unfavorably for the former president.
As a threshold matter, this would be a lawsuit, subject to a less onerous burden of proof, a preponderance of evidence, rather than the stringent beyond-a-reasonable-doubt standard applied in criminal prosecutions.
Such a suit also might move more swiftly than the ponderous proceedings of a criminal character. Alacrity would be aided by drawing upon the voluminous evidence already gathered and about to be published by the Jan. 6 Committee in the House.
Even so, there are some high hurdles that would have to be surmounted to proceed in this way. A couple of "Section 3" proceedings have failed against members of Congress and Jan. 6 cheerleaders Rep. Marjorie Taylor Greene of Georgia and Rep. Madison Cawthorn of North Carolina (who was defeated this spring in a Republican primary). But their involvement in the insurrection, while disgraceful, was seemingly much less extensive than the ex-president's.
Meanwhile, the legal doctrine of "standing" poses a substantial if surmountable obstacle. That tenet, requiring that a litigant pursuing a lawsuit must have a discernible individualized stake in the case and its outcome, is a limitation on interlopers initiating litigation. A 14th Amendment lawsuit by an individual litigant may run aground on this basis.
But why should it? Nothing in the 14th Amendment describes — or limits — who can bring such a claim. Any natural person or collection of them who are eligible, registered voters in any part of the country would seem to have sufficient stake to seek a judicial declaration of ineligibility under the "insurrection" provision. Alternatively, a secretary of state, like Minnesota's Steve Simon, whose job is to certify candidates for the ballot, could undertake the initiative. If not them, then who?
Furthermore, such a lawsuit could be brought in a congenial jurisdiction — anywhere that the ex-president may loom as a prospective candidate. How about Minnesota?
Marshall H. Tanick is a Twin Cities constitutional law attorney.