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An About-Face on Whether the 14th Amendment Bars Trump From Office


A little more than a month ago, a law professor who helped found the Federalist Society, the conservative legal group, enthusiastically endorsed a new law review article arguing that Donald J. Trump was ineligible to be president.

The article was “a tour de force,” the professor, Steven G. Calabresi, told me. It demonstrated, he said, that Mr. Trump was subject to a provision of the Constitution that bars some officials who have engaged in insurrection from holding government office.

“Trump is ineligible to be on the ballot, and each of the 50 state secretaries of state has an obligation to print ballots without his name on them,” said Professor Calabresi, who teaches at Northwestern University.

He appeared to be offering considered views, and he elaborated on them in a blog post titled “Trump Is Disqualified From Being on Any Election Ballots.”

Last week, in an extraordinary about-face, the professor changed his mind.

In a letter to The Wall Street Journal, he said he had been persuaded by an opinion article in that newspaper that the provision — Section 3 of the 14th Amendment — did not apply to Mr. Trump.

In that article, Michael B. Mukasey, who served as attorney general under President George W. Bush, focused on a part of the provision that limits its scope to people who had taken an oath to support the Constitution “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.”

The only category that even arguably applies to Mr. Trump is “an officer of the United States,” Mr. Mukasey wrote. But that phrase, he asserted, “refers only to appointed officials, not to elected ones.”

That proposition is not self-evident, and the 126-page law review article that had set off the discussion, by William Baude of the University of Chicago and Michael Stokes Paulsen of the University of St. Thomas, considered the meaning of “officer of the United States” at length.

It concluded that “the ordinary sense of the text” of the Constitution, “the structure and logic of its provisions,” “the evident design to be comprehensive,” “the seeming absurdity of the prospect of exclusion of the offices of president and vice president from triggering the disqualification” and other factors “all convince us that the natural conclusion is the correct one: Section 3 includes in its coverage, or ‘triggering’ language, insurrectionists who once served as president and vice president.”

They added a plea for a little common sense: “A reading that renders the document a ‘secret code’ loaded with hidden meanings discernible only by a select priesthood of illuminati is generally an unlikely one.”


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