This is the initial post of the news blog, which will summarize the situation up to the present.

Prior to August 14, 2023

Prior to August 14, 2023, it was known that Section 3 of the 14th Amendment could arguably preclude Mr. Trump from running again for the presidency. For example, on November 24, 2022, the New York Times published an opinion piece with the title: "Is Donald Trump Ineligible to Be President?" It discussed the fact that Representative David Cicilline of Rhode Island drafted a Congressional resolution enabling the use of Section 3, and quoted him saying:

This is America. We basically allow anyone to be president... We set limited disqualifications. One is, you can’t incite an insurrection against the United States. You shouldn’t get to lead a government that you tried to destroy.

The resolution was introduced, but was never at all likely to pass, given Republican control of the House. And it hasn't passed.

August 14, 2023

The situation changed on August 14, 2023, when William Baude, a law professor at the University of Chicago - Law School, and Michael Stokes Paulsen, a law professor at the University of St. Thomas School of Law, released a 126-page paper entitled "The Sweep and Force of Section Three". These professors are both active members of the conservative Federalist Society, the conservative legal group, and proponents of originalism.

Their paper contains a very extensive and deep exploration of the question of whether Mr. Trump is precluded from appearing on ballots under the 14th amendment. It was convincing to some law experts, and not others.


Conservative law professor former federal judge on the U.S. Court of Appeals J. Michael Luttig, and Carl M. Loeb University Professor of Constitutional Law Emeritus at Harvard University Laurence H. Tribe, published an article in The Atlantic on August 19, 2023, entitled "The Constitution Prohibits Trump From Ever Being President Again". As the title implies, they found the Baude & Paulsen article to be convincing.

On September 6, 2023, a group named Citizens for Responsibility and Ethics in Washington launched a lawsuit in Colorado to invoke the 14th Amendment to keep Mr. Trump off the ballot in that state. The judge hopes to rule by Thanksgiving. (Of course, however the judge rules, the case will make its way to the Supreme Court if the losing side has enough funding for a legal team to continue to pursue it.)

On September 12, Free Speech For People filed a lawsuit in Minnessota arguing that Mr. Trump can't be on the ballot in that state. You can read the petition online.

Meanwhile, on September 8, Michael B. Mukasey, s U.S. attorney general, 2007-09, and U.S. district judge, 1988-2006, wrote an article for the Wall Street Journal entitled, "Was Trump ‘an Officer of the United States’??" and subtitled, "A careful look at the 14th Amendment’s Insurrection Clause shows that it doesn’t apply to him."

There are also lawsuits in the New Hampshire and Oklahoma Federal courts.

That article argues that Section 3 only applies to "officers" of the United States, and that the President isn't one. It is worth noting that the Baude & Paulsen article did expressly address that argument, but Mukasey renews it with vigor.

And Mukasey's argument was convincing to at least some. For example, Steven Calabresi, a founder of the Federalist Society and Clayton J. and Henry R. Barber Professor of Law at Northwestern University, who had expressed the opinion that Mr. Trump was disqualified, changed his mind and decided he was indeed qualified.

However, on September 13, Yale Law School professor Akhil Reed Amar released a podcast episode, in which he said:

Let me be clear, this is a genuinely stupid argument on the merits, I'm going to demolish it. It's embarrassing that someone so distinguished [as Mukasey] at the end of, you know, near the end of their career would say something like this and so prominent to place.

At this point, the issue remains undecided. Only the Supreme Court can decide it with finality.