The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Prof. Larry Lessig (Harvard) Criticizing the § 3 Disqualification Argument as to Trump


An excerpt from Lessig's article in Slate (read the whole piece for more), discussing the same issue that has been discussed on this blog by Profs. Ilya Somin, Steve Calabresi, Will Baude, and Michael McConnell (and see also Jonathan Adler's post citing Prof. Derek Muller):

The provision of the 14th Amendment that [the advocates of disqualifying Trump] rely upon describes a range of offices that one becomes disqualified from occupying if one, "having previously taken an oath, … shall … engage[] in insurrection or rebellion." …

Imagine that on Jan. 6, Vice President Mike Pence did what Trump's lawyer John Eastman was advising him to do: assert a constitutional authority to decide which electoral votes should be counted. Imagine he then excluded the ballots for Joe Biden in a number of critical states, and instead counted the ballots for Donald Trump in those states. And then imagine, on the basis of that count, that Pence declared Donald Trump reelected….

What, then, would be the status of anyone who would act to resist that outcome? What is the line that would divide "insurrectionists" from protesters? If 50,000 gathered on Capitol Hill to protest the Pence coup, would that render the protesters insurrectionists under Section 3? Would they be acting to overthrow a government? Or would it require violence for resistance to become a violation of Section 3? And if so, how much violence? If protesters on the House side broke into the Capitol, would protesters on the Senate side who didn't break in be disqualified? Or, more pointedly, would those who rallied the protesters to resist the Pence coup then be disqualified from future office?

Don't get me wrong. I believe that those who charged the Capitol on Jan. 6 committed a crime. I believe that their crimes should be prosecuted. But I also believe that the vast majority of them thought not that they were overthrowing a government but that they were pressuring their government to do the right thing—at least as they (wrongly) saw it.

If such behavior qualifies as Section 3 "insurrection," then every leader who might resist a future coup attempt risks disqualifying themselves from serving in any subsequent government.

This is a nightmare of uncertainty — and one that wouldn't end with declaring Donald Trump disqualified…. [N]o court should transform even criminal protest and violence into a Section 3 disqualification. We should punish those who breached the Capitol on Jan. 6. I think we should also punish those who encouraged those people to believe that there was a "steal" that they should "stop." But the act they were engaging in was not rebellion. It was an effort to assure what they wrongly believed was the rightful result. Section 3 cannot police a contest over an election….