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A clause in the Constitution may disqualify Trump from returning to the White House?

STEVE INSKEEP, HOST:

Does a clause in the U.S. Constitution disqualify former President Trump from returning to the White House? Some legal scholars point to the 14th Amendment, which refers to insurrection or rebellion. On ABC, Democratic Senator Tim Kaine of Virginia pointed to Trump's bid to overturn his election defeat on January 6, 2021.

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TIM KAINE: The attack on the Capitol that day was designed for a particular purpose at a particular moment, and that was to disrupt the peaceful transfer of power as is laid out in the Constitution. So I think there is a powerful argument to be made.

INSKEEP: Kim Wehle has explored that argument. She's a constitutional law scholar at the University of Baltimore. David Frum calls the argument a fantasy. He's a former presidential speechwriter who now writes for The Atlantic. Our colleague Daniel Estrin spoke with them both.

DANIEL ESTRIN, BYLINE: Kim, let's start with you. I want to read from Amendment 14, Section 3 of the Constitution, paraphrasing here, that no person shall hold any office, civil or military, where they've taken an oath to support the Constitution if they have, quote, "engaged in insurrection or rebellion against the same or given aid or comfort to the enemies thereof." How does this apply to former President Trump?

KIM WEHLE: Well, the argument is that this post-Civil War amendment to the Constitution, which was designed to keep former confederates out of office with the concern that they would sort of contaminate reconstruction and make it difficult for the country to heal and come together after the civil war, that this operates today to keep people who engaged in the January 6 insurrection at the Capitol out of office and that former President Donald Trump qualifies as an officer of the United States within the meaning of the 14th Amendment.

ESTRIN: And how practically could that work? How do you enforce this amendment then?

WEHLE: That's the big question. I think the closest precedent is from a state court judge in New Mexico who used that language to disqualify a county commissioner from his elected position because that individual had been convicted of criminal trespass on January 6. But that, of course, assumes that there are people within the election process that are willing to do that. And then what would the standard be for insurrection? Does it have to go to a jury trial? Do you need a criminal conviction? All of those questions are unanswered under the Constitution, but that's not unusual for the Constitution. Courts fill those blanks in all the time.

ESTRIN: So let me turn to you, David. Why don't you think that Donald Trump's activities on January 6 and beyond disqualify him?

DAVID FRUM: That's not the real-world question. If we lived in a world where this scheme could work, we wouldn't be in trouble. Because we're in trouble, this scheme won't work. I mean, I invite people to consider what happens on the next day. Let's suppose that a Secretary of State in one or more swing states says, you know what? I have the power to exclude anyone who, having previously taken an oath to the United States, engaged in what I regard as insurrection, I'm keeping Donald Trump off the ballot, and Joe Biden wins the presidency with a majority of the electoral vote in the states because Donald Trump wasn't on the ballot. Is that election accepted? Or do you have actually civil disorder on a scale hard to imagine right now?

It is precisely because Donald Trump is on his way to being the nominee of a major party, precisely because very large numbers of your fellow citizens regard his behavior as acceptable. That's why we're in trouble. Part of the country that is supporting these illegal, undemocratic measures is going to have to be confronted. But you do it through what the video gamers would call a cheat code, and you simply perpetuate the problem we have now.

ESTRIN: Kim, is David missing something here?

WEHLE: I mean, I just think that there's a faith in the electoral process that perhaps has failed us in this moment and that the framers of the Constitution did include Section 3. I mean, it exists. And, you know, I don't have confidence that it's worth the gamble to see if the process is going to work in the old-fashioned way, in getting people out to vote and having, in this instance, the front-runner with 60% of the Republican voter base kind of just hope at the edge of our seats that democracy is going to prevail and not put someone like that in office. Because in my view, if that happens, it's over.

FRUM: What I'm worried about is, what if the 14th Amendment people win? Do you think the plurality of Americans who have voted for Donald Trump in an election that he would have won are going to say, oh, you know, you said the magic words. I guess we're beaten. I guess we'll go home. That's not what happens. It is an example of how magical thinking prevents us from dealing with the real problems democracy has.

We don't have an agreement that what happened on January 6 was an insurrection. I believe it. Others believe it. But not everybody believes it. We're leaving it up to Democratic secretaries of state to try their hands at this. It's a reckless project, and it distracts people from the real work they have to do, which is to make sure that you are signed up to drive your friends and neighbors to the polls to save your country from a threat to democracy that isn't going to be stopped by magic words.

ESTRIN: Kim?

WEHLE: You know, I don't disagree at all with the suggestion that this would cause tremendous civil unrest, but I'm not sure any Democrat moving forward, even if it's a legitimate election, is going to be accepted by millions of Americans that are buying widespread lies and misinformation coming out of Donald Trump and a big component of the Republican Party. But there is this textual commitment in the Constitution. It exists. It's something that should be reckoned with in this moment, given the stakes, if, in fact, as David says, Donald Trump is reelected, whether legitimately or illegitimately. That would be, in my mind, the end of American democracy, given his stated plans for what he will do to the federal government with, you know, a cadre of loyalists making very clear that they're not willing to adhere to the electoral process in the Constitution with fidelity in the way that federal officials have to date.

ESTRIN: If the U.S. fails to employ this constitutional provision, does this expose the U.S. to long-term harm?

WEHLE: I don't think so. I do think we're at a fraught moment in American democracy, but I don't think it turns on whether Section 3 plays a role in the next election or not. I think the problems are much bigger and more complex than that.

ESTRIN: David, last word.

FRUM: I think American democracy has been in harm unprecedented since the Civil War since June of 2015, when Donald Trump declared himself a candidate. But I also think there's a paradoxical gift of Donald Trump, which is that he's a summons to everybody to be a better citizen, to be more involved, to rediscover why democracy is important, to rediscover what you believe in. And you have to act on those beliefs and not look for any magic wishing spell to save you.

ESTRIN: David Frum, senior editor with The Atlantic, thank you so much.

FRUM: Thank you.

ESTRIN: And Kim Wehle, constitutional law scholar at the University of Baltimore, thanks for being here.

WEHLE: Thank you for having me. Transcript provided by NPR, Copyright NPR.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.