Effort To Disqualify Trump Reaches a Fork in the Road

Democrats have the will, but will they figure out a constitutional way?

Via Wikimedia Commons
'Signing of the Constitution,' detail, by Howard Chandler Christy, 1940. Via Wikimedia Commons

Even those who agree on the end goal of blocking President Trump from office on the basis of the 14th Amendment’s Disqualification Clause are split as to the best means to do so, signaling that the Democrats are wading into unchartered constitutional waters.   

The question of how the Civil War-era amendment could be activated nearly a century and a half after its passage has come into focus. It has done so as efforts to disqualify Mr. Trump — and others such as Representatives Marjorie Taylor Greene and Madison Cawthorn — have been attempted in courts, state houses, and now the halls of Congress.

Congressman David Cicilline, now challenging Representative James ”Jim” Clyburn for a leadership post in the 118th House, has teased bringing a disqualification bill to the floor. He is telling colleagues that he has “drafted legislation that would prevent Donald Trump from holding public office again.”

In the wake of Mr. Cicilline’s announcement, the Sun reached out to the legal director of Free Speech for People, Ronald “Ron” Fein. Free Speech is a not-for-profit group that has been at the forefront of disqualification efforts against Mr.Cawthorn, Mrs. Taylor Greene, and Mr. Trump. 

Mr. Fein noted that Mr. Cicilline’s bill “may prove to assist our efforts to enforce” the Disqualification Clause “against Mr. Trump and others involved in the January 6 insurrection.” He averred that “even without federal legislation, state officials and state courts are fully empowered to enforce and apply” the clause, as they “routinely apply” the rest of the Constitution.  

Free Speech has pursued that strategy even in the absence of a congressional mandate. The group has sent a letter to all 50 secretaries of state, asking that they go on record with the position that Mr. Trump is ineligible for office. 

After Mr. Trump announced his 2024 candidacy for president, Free Speech joined forces with another group, Mi Familia Vota, to launch TrumpIsDisqualified.org, which it describes as a “national grassroots campaign to urge Secretaries of State and other chief elections officials to bar former President Donald Trump from appearing on any future ballot.”

The movement to disqualify candidates has had one success, in New Mexico state district court. A challenge brought by the group Citizens for Responsibility and Ethics in Washington resulted in a judicial finding that January 6 was an insurrection and a barring from office of a county commissioner, Couy Griffin. 

The Congressional Research Service notes that it is “unclear whether Section 3 is self-executing,” meaning that how it gains legal force is an open question. If it is not, Congress would need to enact legislation like that proposed by Mr. Cicilline to activate its terms. The amendment’s Fifth Section empowers Congress to enforce it “by appropriate legislation.” 

One challenge to enacting a law that specifically bars Mr. Trump from office, as Mr. Cicilline seeks, is that of the prohibition against bills of attainder, found in Article 1 Section 9 of the national parchment. The Legal Information Institute explains that attainder allows the “government to punish a party for a perceived crime without first going through the trial process.”

A model for Messrs. Fein and Cicilline could be the First Ku Klux Klan Act of 1870. That law directed state district attorneys to seek to block Klan candidates by filing writs of quo warranto, which translates to “by what authority,” in front of judges. That arcane write is used broadly to challenge the suitability of officeholders. 

The Klan Act also made it a misdemeanor for a disqualified individual to hold office, though it required a prior conviction. The special counsel, John “Jack” Smith, is tasked with investigating Mr. Trump’s January 6 activities, and Attorney General Garland will determine whether charges are appropriate.

One will look in vain for the First Ku Klux Klan Act in the federal code, because it was obviated by the Amnesty Act of 1872. That lifted many of the penalties on Confederates that were levied by the Disqualification Clause. Thousands of Confederate soldiers found refuge at its safe harbor, and Mr. Cawthorn scored a victory in his own disqualification battle by appealing to the Amnesty Act.


The New York Sun

© 2025 The New York Sun Company, LLC. All rights reserved.

Use of this site constitutes acceptance of our Terms of Use and Privacy Policy. The material on this site is protected by copyright law and may not be reproduced, distributed, transmitted, cached or otherwise used.

The New York Sun

Sign in or  Create a free account

or
By continuing you agree to our Privacy Policy and Terms of Use