I am guessing that Michael Luttig and Lawrence Tribe don’t agree on much about the law. But they do agree that the Fourteenth Amendment prohibits Trump from running for public office, including the presidency. Lutting is a retired George W. Bush-appointed federal judge whose judicial philosophy drew comparisons to Antonin Scalia. In 2005, Bush interviewed him for the Supreme Court positions that eventually went to John Roberts and Samuel Alito. Tribe taught constitutional law at Harvard Law School and taught Barack Obama, Ted Cruz, John Roberts, Elena Kagan, Merrick Garland, and Jamie Raskin, among others. He is one of the co-founders of the liberal American Constitutional Society, an organization formed to counter the conservative Federalist Society.
Luttig and Tribe just teamed-up in a piece at The Atlantic. Here is a taste of “The Constitution Prohibits Trump From Ever Being President Again“:
As students of the United States Constitution for many decades—one of us as a U.S. Court of Appeals judge, the other as a professor of constitutional law, and both as constitutional advocates, scholars, and practitioners—we long ago came to the conclusion that the Fourteenth Amendment, the amendment ratified in 1868 that represents our nation’s second founding and a new birth of freedom, contains within it a protection against the dissolution of the republic by a treasonous president.
This protection, embodied in the amendment’s often-overlooked Section 3, 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.
The historically unprecedented federal and state indictments of former President Donald Trump have prompted many to ask whether his conviction pursuant to any or all of these indictments would be either necessary or sufficient to deny him the office of the presidency in 2024.
Having thought long and deeply about the text, history, and purpose of the Fourteenth Amendment’s disqualification clause for much of our professional careers, both of us concluded some years ago that, in fact, a conviction would be beside the point. The disqualification clause operates independently of any such criminal proceedings and, indeed, also independently of impeachment proceedings and of congressional legislation. The clause was designed to operate directly and immediately upon those who betray their oaths to the Constitution, whether by taking up arms to overturn our government or by waging war on our government by attempting to overturn a presidential election through a bloodless coup.
The former president’s efforts to overturn the 2020 presidential election, and the resulting attack on the U.S. Capitol, place him squarely within the ambit of the disqualification clause, and he is therefore ineligible to serve as president ever again. The most pressing constitutional question facing our country at this moment, then, is whether we will abide by this clear command of the Fourteenth Amendment’s disqualification clause.
Read the rest here.