I’ve read an interesting article and I thought I’d share it here - it’s a more in-depth dive into how the 14th Amendment applies to Donald Trump’s potential Presidential run in its entirety, rather than Section 3 in isolation.
https://www.aei.org/op-eds/why-twisting-the-14th-amendment-to-get-trump-wont-hold-up-in-court/
The conclusion is that disqualifying him without a guilty verdict that unequivocally states he orchestrated or participated in an insurrection is premature. It would run afoul of the Due Process clause which is not only a part of the 5th, but it is restated in the 14th, the very same Amendment that’s supposed to disqualify him. So far the only official verdict regarding any such charges was the second impeachment in which Trump was acquitted.
He also mentions that in order to satisfy the requirements of the Constitution and Due Process, the provision would have to be enforced by way of Section 5 which specifies Congress as the body responsible for such a determination, by way of legislation. He recommends that a tribunal could be established to make such a finding. This makes sense as in my mind, disqualifying someone from running without a guilty verdict is indeed bypassing the clause entirely, it is a limitation of one’s liberty based on hearsay rather than due process of law. An accusation is not enough to find some guilty, it must be evidenced and it must stand up to scrutiny upon appeal.
Allowing the disqualification theory to stand without also adhering to Due Process and executing the Article correctly would cause further turmoil in future elections, as it would allow any state to disqualify any candidate based on nothing. This, in turn, would grant individual states the power to overturn elections at will - they would have that option at multiple stages of the process. That doesn’t seem sensible to me, but that’s the precedent it would set.
John Yoo is a guest research fellow at AEI specialising in International and Constitutional law, Emanuel S. Heller Professor of Law at the University of California, Berkeley, former Deputy Assistant Attorney General for the Office of Legal Counsel, former General Counsel for the Senate Judiciary Committee and an advisor on the National Board for Education Sciences. He famously advised Mike Pence in 2020 that he had no constitutional authority to interfere with the certification of the election results. Seems like an authority on the subject, the contents of the article ring true in my mind.