CNN Senior Legal Analyst Elie Honig is not on board with a radical theory that former President Donald Trump is ineligible to run for office again because of the 14th Amendment, which excludes a sworn-in public official who had “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”
Honig was responding to an article run by the left-wing magazine The Atlantic, featuring retired former federal judge J. Michael Luttig and former Harvard Law professor Laurence Tribe.
Billed as “legal scholars” by the complicit media, Luttig and Tribe throw the due process clause of the same amendment out the window to argue that Trump is ineligible because he incited an insurrection.
“Having thought long and deeply about the text, history, and purpose of the Fourteenth Amendment’s disqualification clause for much of our professional careers, both of us concluded some years ago that, in fact, a conviction would be beside the point,” the duo wrote.
“The former president’s efforts to overturn the 2020 presidential election, and the resulting attack on the U.S. Capitol, place him squarely within the ambit of the disqualification clause, and he is, therefore, ineligible to serve as president ever again,” they opine.
Appearing on CNN’s “The Lead” on Monday, Honig was quick to praise Luttig and Tribe but did not agree with their assessment.
“They make the case in a piece in The Atlantic that the Constitution prohibits Trump from ever being president again,” guest host Erica Hill said. “They write on here ‘all officials who ever swore to support the Constitution and who thereafter either engage in the insurrection or rebellion against the Constitution or gave aid and comfort to the enemies of that Constitution are automatically disqualified from holding future office and must therefore be barred from election to any office.’”
Looking past the fact that Trump has not been found guilty of anything, Honig fell back on how to apply the clause.
“These are two brilliant scholars,” he replied. “They’re correct to note that the Fourteenth Amendment rightly bars someone who’s participated in insurrection or rebellion from holding future office. The problem is that the Fourteenth Amendment tells us nothing about how that decision gets made, nor does any caselaw or statute that’s been passed. Does Congress decide? Is it the Senate? Is it the House? Is it a majority? Is it two-thirds? Is it a court? Is it a jury? Is it a judge?”
The flaw here in his mind is the idea of a “self-executing” mechanism for adjudication — keep in mind, states control their own elections.
“And what they propose in the article is they say, ‘Well, it’s self-executing,’ which, that does not do it for me,” Honig continued. “What they’re proposing essentially is, ‘Well, every state, local, county official who handles ballots will just decide on their own whether he’s disqualified or not.’ That would lead to wild inconsistency and chaos, and I don’t think that’s a viable practical solution here.”
George Washington University law professor Jonathan Turley went even further, arguing the theory is “wildly out of sync with the purpose of the amendment, which followed an actual rebellion, the Civil War.”
“This 14th Amendment theory is something that good liberals will read to their children at night,” Turley wrote. “It goes something like this: Donald Trump can never be president again, because the 14th Amendment bars those who previously took federal oaths from assuming office if they engaged in insurrection or rebellion. With that, and a kiss on the forehead, a progressive’s child can sleep peacefully through the night.”
“But don’t look under the bed. For 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,” he added.
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