Based on the polls, former President Donald Trump remains the frontrunner in the 2024 GOP presidential primary race despite his ongoing legal trouble. But there is a growing conversation among legal scholars and officials in critical swing states about whether or not the forty-fifth president will appear on the ballot.
On Monday, Megyn was joined by Alan Dershowitz, author of Get Trump, to discuss the push by some to potentially use the Fourteenth Amendment to block Trump from the 2024 ballot and whether it would be possible to do so.
What Is the 14th Amendment?
In what Megyn described as a “last ditch effort” to stymie former President Trump’s chances in the 2024 election, there are certain legal scholars and state officials who are now talking about invoking the Fourteenth Amendment to keep the GOP frontrunner from being able to run at all. Lawsuits have already been filed in Colorado and Minnesota.
Passed by Congress in June 1866 and ratified in July 1868, the Fourteenth Amendment included the citizenship clause (“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside…“) in Section One, and it also featured a disqualification clause in Section 3 that bans those who “engaged in insurrection” from holding public office.
As Dershowitz explained, it was very much written for the time. “The Fourteenth Amendment was designed to prevent people who fought in the Civil War from assuming office… not only the presidency but mayor, city council, any position under state, federal, or city law,” he said. “It doesn’t only apply to people running. It also applies to people sitting in office, so it’s a way of circumventing even the impeachment provision.”
The 14th Amendment Today
The Fourteenth Amendment was written to be “self enforcing” because, in the post-Civil War Reconstruction Era, Dershowitz said there was no debating who or what it applied to. “It was self enforcing because everybody knew who fought for the South… nobody was denying that they fought in the Confederacy,” he shared. “But beyond that limited use… who knows what an ‘insurrection rebellion’ is outside of the context of the Civil War?”
He argued that, in today’s polarized world, ‘insurrection’ has “become a metaphor for protests you don’t approve of.” And because the disqualification clause is self enforcing, “you don’t need a Supreme Court decision, you don’t need a District Court decision, you don’t need an accusation, you don’t need a conviction – all you need is [someone] to say, ‘I think it was an insurrection and, therefore, he can’t run,'” Dershowitz cautioned.
That means legal scholars like former Harvard professor Laurence Tribe and former Fourth Circuit Court of Appeals Judge Michael Luttig who are currently leading the charge on this maneuver only need to “persuade secretaries of state… to take [Trump] off the ballot,” Dershowitz noted.
Megyn said this interpretation of the amendment leaves many politicians exposed. “‘Insurrection,’ in their definition, means challenging the election results or refusing to accept that one has lost… because, again, Trump is not the one who stormed the Capitol,” she said. “What he did was try to challenge election results in every way, shape, and form he could think of.”
This makes him no different than some prominent Democrats who have contested their own election results. “I guess President Kennedy engaged in an insurrection where he had the alternate slates of electors for Hawaii,” Megyn noted. “And Stacey Abrams, who they ran again in Georgia, shouldn’t have been allowed to run again for office.”
‘The End of Democracy’
While Tribe and Luttig are regularly on cable news advocating for the use of the Fourteenth Amendment against Trump and the power of the secretaries of state to control the ballot, Dershowtiz said the legal grounds are shaky. “They claim the secretary of state decides who is on the ballot, but, of course, that’s not the law,” he said. “The people decide who’s on the ballot; the secretary of state performs the administrative function.”
And yet this could undermine that decision process. “It’s an effort to disenfranchise not only Americans who want to vote for Donald Trump, I insist on the right to vote against him for the third time – that’s an important right, too,” he said. “I want Donald Trump defeated on the merits in a fair and open election. I don’t want him disqualified.”
Ultimately, he sees this as the latest effort to ‘get’ Trump. “If [they] can persuade secretaries of state… to take him off the ballot, it’s the end of democracy,” Dershowitz concluded. It means that people don’t get to vote for and against those candidates who the majority of the people in primaries have decided to put on the ballot. It’s the most undemocratic, anti-American tactic for getting Trump.”
You can check out Megyn’s full interview with Dershowitz by tuning in to episode 624 on YouTube, Apple Podcasts, or wherever you like to listen. And don’t forget that you can catch The Megyn Kelly Show live on SiriusXM’s Triumph (channel 111) weekdays from 12pm to 2pm ET.