Does the 14th Amendment prohibit Trump from running for president?

hi everyone Lawrence tribe is the KLM lobe University professor of constitutional law am Meritus at Harvard University and considered one of the nation's foremost Scholars on constitutional law he has argued before The Supreme Court a total of 35 times he and former federal judge J Michael ludic have recently argued that Donald Trump should be ineligible to be president of the United States because of a clause in the 14th Amendment Professor Lawrence trive you're a longtime professor of law at Harvard Law School it's great to see you again and we're here to talk thank you we're here to talk about the 14th Amendment and I know you and judge uh J Michael ludik who is a former federal judge on the US court of appeals for the fourth circuit believe that section three of the 14th Amendment effectively prohibits Donald Trump from ever being president again can you explain in simple terms how you've come to that conclusion sure both judge luding and I have studied the 14th Amendment for a very long time I've been teaching about it for 50 years and it is one of the most important parts of the Constitution the 14th Amendment is the part of the Constitution that basically after the Civil War said that states cannot violate certain rights on the part of their citizens but it also said in section three that anyone who takes an oath to support or defend the US Constitution as an officer under the United States and who then engages in Insurrection or Rebellion against the Constitution can never again hold any office it's very straightforward we've never before had a President Who at least apparently tried to turn the Constitution upside down by violating the provision that says if you lose a presidential election you leave you don't try to hold on you don't among other things have fake electoral slates or rile up a mob to sack the capital during the time that they are officially counting the electoral votes and yet that is what it looks like Donald Trump did so judge ludig and I concluded fairly simply that this basic protection of democracy the provision that says you're not eligible for another bite at the Apple if you try to crush it the first time that applies to Donald Trump and there are lawsuits all over the country making that argument one or another of them is bound to make it all the way to the US Supreme Court quite soon uh and then we'll have a definitive answer neither judge ludig nor I pretends to predict what a court with three Trump appointees and some other very very conservative members were conservative in my view in name only they're really quite radical we're not predicting what they will do uh but we believe the Constitution contains this very important protection of democracy so that's uh that's the story I understand this issue was being considered in both Minnesota and Michigan and judges in both of those States Larry said that the 14th Amendment would not preclude Donald Trump from being on the ballot in 2024 Colorado is now considering that same issue what was your reaction about the findings in Minnesota and Michigan it really wasn't too surprising because the state laws in Minnesota and Michigan make it much more difficult to take someone who is disqualified from the presidency and prevent that person from at least running in the primary the state that says we're not going to run somebody in the primary if they're not qualified to hold the office is Colorado and there was a week-long trial in Colorado the verdict will be rendered by judge Wallace either tonight Thursday night or Friday night November 17th it's very specific and whichever way she goes that is whichever way Judge Sarah Wallace decides the losing party goes straight to the Colorado Supreme Court with a brief that's due Monday morning November 20th um that's the case that I think we really need to watch one thing that I don't understand is there is a federal trial happening uh in Washington DC surrounding these same issues Donald Trump's role in what happened on January 6 how does that play into the legal process in terms of his ability to run for office again the federal criminal trial both the one in DC which is going to begin actually on March 4th with judge Tanya chatkin presiding and the federal criminal trial in Miami presided over by judge Canon um and the state criminal trials are completely unrelated to this this is a provision that is not triggered by a civil or criminal verdict it basically says we're not trying to punish someone someone through this provision we're simply trying to take them out of the running once you have taken an oath to the US Constitution for an office under the United States if you then engage in an Insurrection and the definition of insurrection may be different in this context from what it is in the criminal context once you engage in an attempt to overturn the Constitution you can't hold office again so this does not depend on a conviction in fact one of the reasons that the 14th Amendment included this special protection against insurrectionists and Rebels against the Constitution was the thought that the criminal process might not work that in fact the federal government might be in the hands of the insurrectionists as it in fact happened after Lincoln's assassination when Andrew Johnson who was very sympathetic with the Confederacy became president he made it clear that he would not prosecute people who tried to overturn the constitution on behalf of the Confederacy and that he would in fact pardon anyone who was convicted so this has got nothing to do with whether Donald Trump will or will not go to jail as a result of the federal criminal trial that you're referring to in the District of Columbia at the same time it's my understanding that Donald Trump and his team of lawyers will say he did not instigate an Insurrection that he was merely telling people to you know make their feelings known etc etc and it was not his intent to do that so how can I mean it might be in the eye of the beholder right in terms of whether or not he did or didn't violate this Statute in the 14th Amendment well it's not in the eye of the defendant or in the eye of the objector it's in the eye of the judge and judges often have to make difficult decisions about who is telling the truth and what actually happened in this case there was a full trial for a whole week in Colorado all day every day pretty much and evidence was put on that related not only to the final violence on January 6th but to events that go all the way back to the election from the very moment of the election there is evidence very strong evidence that Donald Trump said I'm not leaving I don't care who says I lost I don't admit that I lost I think the election was stolen and he was willing to do whatever it took the evidence over the past week in Colorado was very strong that he was directly involved in the fake electoral slates and in addition to that that he in fact did rile up the mob and very occasionally said oh be peaceful but on the other hand you know he did everything he could to make sure they wouldn't be peaceful but we will know what the trial judge finds based on all of the evidence and Donald Trump's team had ample opportunity to put in evidence exactly trying to prove what you claim he could have testified himself it's a civil proceeding he could have testified he chose not to so if the judge finds on the basis of the facts before her that he in fact did engage in or give Aid and comfort to which is also language in the Constitution an Insurrection or Rebellion against the Constitution the fact that Donald Trump says I don't admit it it's not true that's just his opinion and a judge's decision is going to be appealed to the Supreme Court of Colorado and eventually it'll get to the US Supreme Court but the fact that there are different ways of looking at these events doesn't make it any different from what the framers of the 14th Amendment knew would happen of course after the Civil War it was a little bit easier to tell who was in the Confederacy and who wasn't can we go back to the historical reasons for section three of the 14th Amendment because it had to do with the successions during the Civil War rejoining the government right well that was only the immediate occasion the secessionists the people who tried to tear the union apart horizontally basically uh they couldn't come back in unless 2third of the house and 2third of the Senate basically pardoned them absolved them that's a provision of the 14th Amendment if you can convince 2third of both houses that you should be allowed to play a role in government again you could but there was a lot of debate over whether this was a one-time only provision or whether it would stay in place in the event that we have a future Revolution against the Constitution future Rebellion as it happens we ended up having a vertical Rebellion when I say vertical I mean that the process Through Time by which one president hands over power to the next when someone else wins that process is as basic to holding the union together as is the horizontal process that sticks the states into a union this was a not a sucession by the president but an interruption a deliberate Interruption of the peaceful TR transfer of power and there is no argument that anyone has made that's convincing to any lawyer that says that the 14th Amendment only deals with secession from the union it deals with any Insurrection or Rebellion against the Constitution and the Constitution can fall apart along to at least different axies it can fall apart if States pull apart and leave the union but it can also fall apart if we move to a dictatorship by someone who says I may have lost the election all the courts say I lost but I am insisting on staying if we have a president who does that that destroys the Constitution every bit as much is there something in the Constitution that talks about the peaceful transfer of power as well there is article two it's called the vesting clause and it says that the presidency vests in the winner of the Electoral College for four years exactly terminates at noon on January 20th of the year after the quadrennial presidential election that is as clear as day and from the very beginning from the presidency of George Washington even through the Civil War despite all of the disputes that have happened about various elections when someone is Det determined to have lost by the courts by the Electoral College that person has left office and the next one has come in why couldn't that be used against Donald Trump in addition to uh the 14th Amendment well it is being used in the sense that it is the provision that judge ludig and I have said makes clear that Donald Trump was engaged in an Insurrection of rebellion against the Constitution and and is therefore disqualified the provision in the Constitution that says that the next president takes office at the stroke of noon on January 20th doesn't really tell you what to do with someone like Donald Trump who says yes Joe Biden took office but now I'm going to take another run at the presidency got it got it got it so this is really what you're using to prevent future uh a future candidacy by Donald Trump and that he violated Article 2 and uh and article 14 right well it's it's a little more it's a little more complicated he basically tried to violate article two by staying in power he did not succeed so it was an unsuccessful coup Joe Biden was sworn in although Donald Trump did everything he could to prevent that what do we do now when he wants to run in 2024 well one thing we can do is read the 14th Amendment it says that somebody who mounts an Insurrection against the Constitution even an unsuccessful one cannot be trusted to run again and hold office ever and so what we do through the 14th Amendment is argue as people have argued in courts around the country that Donald Trump because he tried although unsuccessfully to hold on to power in violation of the vesting Clause of article two of the con Constitution because he tried to do that he was equivalent to the secessionists in the 1860s people who though they did not succeed ultimately they lost the civil war after all people who though they didn't succeed ride to destroy the union they could not hold office again unless they were given amnesty by a vote of two-thirds of each house of Congress so do you think that there would be a vote in Congress determining this or now it's completely in the Judiciary hands it's in the Judiciary unless Donald Trump said this isn't fair and tried to convince two-thirds of the house and two-thirds of the Senate that he should be relieved of this disqualification as a matter of political reality that ain't going to happen that is you're not going to get two-thirds of either house lifting this bar on Donald Trump fact is that almost everybody in Congress though some of them won't say it out loud because they're afraid of reprisal by Donald Trump or by others almost everybody in both houses of Congress knows that Donald Trump tried to take down the country that's why a majority in the House of Representatives you will remember impeached him that's why 57 Senators said he was guilty of insurrection that wasn't enough to to disqualify him under the impeachment clause which required a two-thirds vote but now there is this separate Avenue for keeping him off the ballot you always hear the expression don't make a federal case of it why couldn't there a federal case arguing the same point why leave it to the states to adjudicate this well there are two main reasons first the constitution in article two and the 12th Amendment creates a system in which the state legislators decide how to select electors and the presidential elections strange as this may seem is basically run by the states it's the states who decide who will be the president IAL electors therefore it is the states that hold primary elections but there's another reason and that is voters who tried to go to Federal Court to argue that Donald Trump is disqualified don't have standing in federal court in federal court in order to invoke the judicial power you have to show that you're individually hurt so that someone like Chris Christie for example could make a federal case out of it if he wanted he could go to Federal Court and argue that he is harmed personally by Donald Trump claiming to be eligible for president despite the 14th Amendment but no person no other candidate no one with an individual stake in the matter has gone to Federal Court the only people who have tried to go to court are voters and citizens who've taken the position that we should not be put in a position of voting on some someone who's not eligible to serve as president States in some instances like Colorado open the door of their Court to voters and citizens making that kind of claim a state like Michigan didn't which is why the lawsuit failed there a state like Minnesota says well citizens and voters can go to court but only for the general election not for the primary so we're dealing with an area that involves a very complicated intersection of federal law state law all kinds of complicated rules um that's why it's rather hard in a short period to make it all very clear yeah I think you're doing an excellent job though and I know that your argument is essentially an endorsement of a richly researched article to be published next year by two legal Scholars William bod and Michael Stokes Paulson um and you say that the evidence they lay out will quote influence if not determine the course of American constitutional history and American history itself uh can you try to explain that to me well basically it's because someone who tried to become a dictator which is one way of looking what Donald Trump was doing when he said I don't care if I really lost I'm G to stay in power and someone who was announced as he did last December that he would terminate that was the word he used terminate the Constitution if he needed to in order to exercise power and someone who has said through what he calls project 25 that if he gets into Power he will use the power of the presidency to indict his critics to imprison his opponents we've heard that before we've heard that before in the world if we we allow the United States of America to go down that path we are doomed as a democracy that's why I say and that's why a conservative like judge luding says that what happens with this disqualification section will be so important now it is possible even if this disqualification argument fails because for example the US Supreme Court finds some way to rule for Donald Trump that he will lose nonetheless at The Ballot Box and because he doesn't have the military and the power of the presidency in his hands now we may have a peaceful succession to a second Biden term but there's no guarantee of that right I was going to say but if the Supreme Court rules in his favor I.E Donald Trump's favor and he wins the election then what then I think think there's a danger that American democracy will come to an end because the presidency will be the in the hands of someone who says I am in here for vengeance Vengeance against the people who aren't loyal enough to me and the rule of law doesn't apply to me right I am the law we've heard that before in the history of the world it's a scary thing it's not just scary because of you know what you learn in civics class it's your freedom my freedom that are on the line nobody is really free if there's someone in power who has boundless power who can imprison anyone who wants who can pick an attorney general who will indict his critics who will silence the media silence the Press that's a scary Prospect and when people say it can't happen here I have news for them it can how much confidence do you have in this Supreme Court given that the majority of the justices are conservative well conservative really is the wrong word if you were conservative you would want to conserve the most important thing we've got which is our constitution they're not conservative they're just right- wiers I'm not that confident honestly about what the US Supreme Court will do I'm somewhat more confident what the American people will ultimately do because despite the polls I think when people really St in the face what it means to have a person in power who says I'm not leaving I'm here get used to it I've got an army I can hire an attorney general who will go after my enemies I won't respect the separation between the White House and the justice department that is going to be a scary Prospect for everybody people might think oh I'm not in trouble I've got money I've got friends in high places a lot of people said that in Germany in the 1930s other people have said that in Hungary and in China and in Russia it doesn't work dictatorship spells the end of Freedom the end of law the end of those things that protect everyone but the friends of the dictator I'd like to ask you about the court cases really quickly as we wrap this up but before I even roach that topic what do you think of the polls the fact that right now Donald Trump seems to be ahead of the incumbent president they scare me I I don't think that a poll a year out um is necessarily decisive a lot of people who say I don't mind that the president has been indicted but I won't vote for him if he's actually convicted there are a lot of people who after he is convicted in the district of Colombia case and I think he will be next summer um are going to rethink whether they are in favor of him U they're going to look at what Biden has done for them and for their lives they're not going to like how old he is that's clear uh but I think in the end between two old guys one of whom seems to be crazed and in it just for himself not respecting the law and another old guy who respects the law and has made a lot of progress on the ground as between those two I think a lot of people will rethink it and end up voting against Trump but I wouldn't wage my life on it that's for sure what if he is convicted in any of these cases these four criminal cases in DC New York Florida and Georgia would any of those convictions preclude him from running for president in 2024 no you can be a convicted felon and still run for president that's insane to me well it's the way the system is written you can run for president from jail Eugene Debs I guess did other people have um we have a system that isn't perfect it's better than any other in the world that I know of but it isn't perfect but I also wouldn't like a system that says that somebody has the power to prevent you from running for president just by finding a jury that will convict you you know there's no perfect solution which of the four criminal cases against him do you think is the most serious in terms of ultimate odds that he will be convicted and sentenced to prison it's probably the one that goes after him and his unindicted co-conspirators in the district of Colombia um but certainly the one that is for judge cannon in in Florida that involves his violation of national security by holding on to National Defense secrets and apparently showing them to people for his own benefit that's awfully serious too although it's a little harder for people to get their minds around it the one in the district of Colombia is fairly straightforward it basically says he tried to steal the election it's more technical than that but that's really the argument um I think that's the one which people are most likely to rethink their support of the president former president but what about Georgia because my understanding is if he's convicted in Georgia he cannot be pardoned that's right that is the president's pardon power even if he became president a Georg your conviction he couldn't wipe out but on the other hand if he's president there's no way that Georgia is going to be able to imprison him uh he will use the powers of the presidency even though the pardon power will not wipe the Slate clean in Georgia he will use if he becomes president again the power of the presidency to put himself above all of the law and I'm can guarantee you that these cases are scheduled to be heard I guess in March three separate felony cases and then the classified documents case which is being overseen by a judge very sympathetic to Donald Trump apparently um is scheduled for May so how do you see this all shaking out before 2024 well the March trial that will begin in the district of Colombia before judge chuin is going to move with all deliberate speed it will reach a conclusion before the election probably before the Republican convention the case before the very sympathetic judge Alene Cannon who's done all kinds of bizarre things though it's scheduled for May I don't think is going to be tried before the election she's quite sympathetic not only on the merits but in terms of timing all sorts of efforts to delay seem to succeed in her court but not in the court of Judge Chuck and who is calling it just like it is she's a very solid good straightforward J you've been teaching law Lauren's tribe for many years you I don't know how old you are at this point may I ask sure I I'm 82 you're 82 years old I mean I'm sure you must shake your head and wonder how did we get here I think a lot of people are asking that question when you think about it what answer do you come up with well I don't come up with a quick answer there are all sorts of force that have combined to bring us here Democrats often took people for granted but much worse than that there has been an undercurrent of racism and fear of the other fear of immigrants all kinds of concerns about people being displaced people no longer knowing their place the culture changing so quickly the internet which made it possible for people to have access to huge gobs of information ends up serving to isolate people in their own little silos their own little Echo Chambers all sorts of things have come together in a Kind of Perfect Storm that puts us at this hinge point in our history there are some forthcoming books that try to examine how we got here and how if at all we might get out of it uh but it's sort of above my pay grade to to Fashion a path Out of the Woods it's it's we're in a difficult situation I think political participation by more people people who vote even though they are not in one of the ideological extremes of the society that could make the difference I think if all eligible voters were to go massively to the polls in November 24 it would be such a landslide not so much for Joe Biden a lot of people might not be enthusiastic about him but I think it would be a landslide against the enemies of the Constitution and against Donald Trump but only if everybody votes because there are so many voter suppression efforts going on there are so many people who have been lulled into apathy or hopelessness that if people are passive and if people don't stand up up for what is really best about America and that is the inclusion of everybody the idea that everyone is entitled to full and equal dignity regardless of sex regardless of of gender regardless of sexual orientation regardless of race ethnicity nationality if people don't stand up for those principles then we're not going to retain a republic as Benjamin Franklin said when he was asked famously the end of the convention what have you given us here Mr Franklin he said we have given you a republic if you can keep it and what that meant very simply was that it's in our hands if we don't fight for the principles of a constitutional democracy and of a republic under the rule of law then we will lose all of what we have built up in the last 225 years that's a good place I think to end this conversation thank you so much for spending time with me today it's really wonderful to see you and um you and judge ludic I think are a formidable team and I hope that you keep talking about this because there's so much news going on that I think and I do feel like people have gotten apathetic and I feel like our education system sucks and I think that's the technical term i' use our education but um you know I worry about my future grandchild and I'm sure you're worried about yours your current grandchildren absolutely I'm quite worried but I think it's in their hands the future is in their hands as well as ours uh and if we fail I think it's not all over they they will have a chance to try well it makes me feel like I'm going to go and make sure people are registered to vote and that they vote I hope you do well it's great to see you again thanks thank you again for your time and uh you know it's a real pleasure being with you same here okay take care okay good luck with your future grandchild oh thank you so much I'll let you know what I have or what my daughter has okay they're not finding out they say it's one of the last surprises yeah it's great it's great to be surprised yeah anyway take care and thanks again thank you okay bye bye

Channel: Katie Couric

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Length: 34min 25sec (2065 seconds)

Published: Sat Nov 18 2023