Former federal prosecutor Elie Honig has disputed the assertion that Donald Trump is constitutionally ineligible to run for president in 2024.
On Monday, Honig argued that the Constitution’s 14th Amendment does not provide a basis to make Trump ineligible.
This comes after Laurence Tribe and J. Michael Luttig published an essay in the Atlantic asserting otherwise over the weekend.
They cited Section 3 of the 14th Amendment, claiming it:
… automatically excludes from future office and position of power in the United States government — and also from any equivalent office and position of power in the sovereign states and their subdivisions — any person who has taken an oath to support and defend our Constitution and thereafter rebels against that sacred charter, either through overt insurrection or by giving aid or comfort to the Constitution’s enemies.
But according to Honig, despite being “two brilliant scholars,” Tribe and Luttig do not make a strong legal argument.
“They are correct that 14th Amendment rightly bars someone who’s participated in insurrection or rebellion from holding future office,” he said on CNN.
“The problem is the 14th Amendment tells us nothing about how that decision gets made, nor does any case law or statute that’s been passed,” he explained. “Does Congress decide? Is it Senate? Is it House? Is it majority? Is it two-thirds? Is it a court? Is it a jury? Is it a judge, et cetera?”
Honig strongly rejected the suggestion that the amendment in question is “self-executing,” highlighting potential issues with its interpretation.
“That does not do it for me. What they are proposing essentially is that every state, local, county official who handles ballots will just decide on their own whether [Trump] is disqualified or not,” he said. “That would lead to wild inconsistency and chaos, and I don’t think that’s a viable, practical solution here.”
The legal argument that President Donald Trump is constitutionally disqualified to run for re-election or serve in any office under the 14th Amendment has been gaining attention.
An article published in the University of Pennsylvania Law Review even advanced this theory. However, the validity of this argument has been called into question by some experts, including Michael Honig who pointed out potential flaws within it.
In a system of constitutional supremacy, the Constitution has self-executing power. However, Honig raised an important point: The Constitution itself cannot bar Trump from running for office, but it would require a legal authority – such as Congress, a judge or jury – to declare him disqualified.
This raises the issue of interpretation, as different people may apply and understand the text differently. According to Honig, this could lead to “wild inconsistency and chaos” in cases where Trump is eligible in some states but disqualified in others.
Furthermore, Trump has not been formally charged with “insurrection or rebellion,” and even if he were, he would still be considered innocent until proven guilty – a legal principle based on various due process clauses from the Constitution.
As such, proponents of using the 14th Amendment must explain how they plan to uphold American criminal jurisprudence while also denying Trump any opportunity to defend himself from these charges.
Critics are suggesting that the 14th Amendment may be a viable option for blocking President Trump from ever holding public office again.
However, as Honig has pointed out, this solution is purely theoretical and presents a number of obstacles to its successful implementation – not least of which is the practicality of enforcing it against Trump.