Legal scholar exposes the constitutional ‘technicality’ that sinks effort to disqualify Trump from ballot

Constitutional law scholar Steven Calabresi no longer believes the Constitution disqualifies Donald Trump from being re-elected to the White House.

Last month, Calabresi, a law professor at Northwestern, endorsed the theory that Trump is constitutionally disqualified from running for president under Section 3 of the 14th Amendment. Calabresi argued Trump broke his oath of office when he participated in an “insurrection or rebellion” on Jan. 6, 2021.

But now Calabresi has changed his mind completely.

Calabresi — who emphasized that he is a “Never Trumper” and would vote for a Democrat over Trump — explained in a new essay that a “technicality in the drafting” of Section 3 means it “does not apply to Trump.”

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The question centers on whether Trump was “an officer of the United States” on Jan. 6. This is critical to the theory because Trump is not a member of any of the other groups — members of Congress, members of state legislatures, or state executive and judicial officers — that Section 3 targets.

And, according to Calabresi, “officer of the United States” is a “legal term of art” that does not apply to Trump.

To bolster his case, Calabresi relies on intratextualism to discern how the phrase is used in other parts of the Constitution, specifically Article II:

• The Commission Clause, (Article II, Section 3), which states that presidents “shall commission all the officers of the United States.” But as Calabresi noted, not a single president in U.S. history “has ever, either before or after, the ratification of the Fourteenth Amendment commissioned himself.”
• The Appointments Clause, (Article II, Section 2), which states that presidents “shall nominate … all other officers of the United States.” And as Calabresi explained, the clause “is used to describe appointed persons and not elected persons like the members of Congress or the president.”
• The Impeachment Clause, (Article II, Section 4), which lists the president and vice president separately from “all civil officers of the United States.”

The sum total of textual evidence, Calabresi argued, means Trump can appear on the ballot in 2024.

Textual evidence aside, Calabresi said that using the 14th Amendment to disqualify Trump “would set a bad precedent for American politics” because the legal argument is “a very muddled area of constitutional law” that has resulted in a “confused state of the law.”

The 14th Amendment argument gained significant traction after a law article in the University of Pennsylvania Law Review made a comprehensive argument for Trump’s disqualification.

That argument, however, is already being scrutinized and picked apart.

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