Molly Butler / Media Matters
Research/Study
After making wild constitutional arguments for years, right-wing media are aghast that the 14th Amendment might apply to Trump's misconduct
Right-wing figures claim using the 14th Amendment to keep Trump off the ballot is a “new scheme,” despite years of defending an unconstitutional legal theory to keep the former president in power
Written by Audrey McCabe
Published
Legal scholars are discussing whether or not former President Donald Trump can be legally removed from 2024 presidential ballots for his role in inciting the January 6 insurrection, citing a clause in the 14th amendment that bars anyone who “engaged in insurrection” against the United States government from serving in public office. Right-wing pundits have blasted the idea as a “vile attack on our elections” and warned that there will be an “insurrection” if Trump is removed from ballots. Yet, many of those same figures have supported the so-called independent state legislature theory, a fringe legal theory that was recently deemed unconstitutional by the U.S. Supreme Court and would have allowed state legislatures to invalidate the outcome of the 2020 election and prevented state courts from throwing out partisan electoral maps.
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Legal scholars and activists across the country argue that the 14th Amendment disqualifies Trump from holding office
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- The 14th Amendment of the U.S. Constitution includes a clause that bars officials who have “engaged in insurrection or rebellion” from running for office. The clause was ratified three years after the Civil War with the intent of preventing former Confederates from being elected to public office. [The Washington Post, 9/12/23]
- Last year, a federal judge cited the clause to order the removal of a New Mexico official who participated in the January 6 insurrection from office. As reported by The Hill: “New Mexico District Court Judge Francis J. Mathew said ‘Cowboys for Trump’ founder Couy Griffin’s decision to join the mob on Jan. 6 and trespass on restricted grounds constituted insurrection and disqualified him from holding federal or state office.” [The Hill, 9/7/23]
- Several active lawsuits are attempting to block Trump from appearing on 2024 ballots in at least a dozen states. Election officials in some states could theoretically justify removing Trump from their ballots, citing the 14th Amendment, but so far those officials have been reluctant to do so in the absence of a court order. [The Washington Post, 9/12/23; Axios, 9/25/23]
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The independent state legislature theory is a “bogus” legal theory that would upend American elections
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- The independent state legislature theory posits that the U.S. Constitution gives state legislatures the ultimate authority to regulate federal elections without checks or balances from other branches of state government. As Caroline Sullivan wrote for the Democracy Docket, “If endorsed, state courts could lose the power to do their jobs — interpreting state law and enforcing their state constitutions — in the sphere of elections. State legislatures could set federal voting and election rules and draw congressional maps without that important oversight. At its strongest, the ISL theory also threatens gubernatorial veto power, citizen-led ballot measures and independent redistricting commissions.” [Democracy Docket, 7/11/22]
- The U.S. Supreme Court rejected the theory, which experts have called “bogus and ahistorical” and “an elite power grab dressed in academic robes.” Republicans in the North Carolina General Assembly used ISL theory to claim that the state’s Supreme Court acted unconstitutionally when it threw out the Republican legislature’s gerrymandered electoral maps. The case made it to the Supreme Court, where it was rejected in a 6-3 vote. [Brennan Center for Justice, 6/27/23; Democracy Docket, 12/9/22]
- Trump and his allies used the bogus theory to justify sending fake slates of electors to Congress in an attempt to overthrow the results of the 2020 presidential election. Attorney and Claremont Institute senior fellow John Eastman penned a memo for the Trump team insisting that state legislatures, not voters, have “plenary power” to choose Electoral College electors in presidential elections. [The New Yorker, 6/5/23]
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For years, right-wing media advocated using the “bogus” and antidemocratic ISL theory when it suits their political agenda
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- A few days after the 2020 election, right-wing radio host and Fox host Mark Levin declared in a tweet that state legislatures “have the final say over the choosing of electors.” Levin posted, “Reminder to the Republican state legislatures, you have the final say over the choosing of electors, not any board of elections, secretary of state, governor, or even court. You have the final say — Article II of the Fed Constitution. So, get ready to do your constitutional duty.” [Twitter/X, 11/5/20]
- Two years later, Levin claimed on his radio show, “We have a long history in the country that pre-dates the Constitution, where the states determine the election procedures." He continued, “And so, what happened here is that Democrats want their courts, like the state Supreme Court, in Pennsylvania, you may remember the state supreme court in Florida and other courts, to overturn what the will of the people through the state legislature are doing, or Democrat governors to overturn what state legislatures are doing or secretaries of the state, and we saw this in 2020 election.” [Fox News, Life Liberty & Levin, 10/2/22]
- The Washington Examiner’s Jacqueline Timmer published an article defending ISL, claiming, “The Constitution makes it very clear that state legislatures are intended to oversee federal elections within their jurisdictions.” Timmer wrote, “Indeed, the language used by the founders strongly suggests that they saw the state legislatures’ authority over elections as plenary.” [The Washington Examiner, 7/21/22]
- Right-wing radio host Erick Erickson claimed that ISL protects against “biased” judges who might “interfere with a state legislature’s redistricting effort.” Erickson posted, “Seems to me on the independent state legislature doctrine, if the judges of a state Supreme Court are elected in partisan elections, the judges are openly admitting a bias up front and shouldn’t be allowed to interfere with a state legislature’s redistricting effort.” [Twitter/X, 7/3/22]
- Erickson later referred to ISL as a “no brainer.” He said, “On the independent state legislature case, I personally think it is a no brainer that a partisanly elected state Supreme Court should have no power to overrule a state legislature on redistricting issues. It's substituting the partisan judgment of one for another.” [Twitter/X, 12/1/22]
- In The Federalist, Professor of Law Timothy Canova criticized the California Bar for threatening to disbar John Eastman after he advocated using ISL theory to overturn the 2020 election. Canova argued, “At the time, this did not appear to be such a frivolous view as to impugn the integrity of lawyers making the argument, let alone grounds for revoking their bar licenses.” [The Federalist, 6/22/23]
- Breitbart’s Michael Patrick Leahy cited a John Eastman memo in which the disgraced lawyer pleaded with Republican state legislators to assert their “plenary power” to decertify “tainted” election results. Breitbart reported that Eastman, who now faces criminal charges in Fulton County, Georgia, for his role in attempting to overturn the results of the 2020 presidential election in that state, offered tenets of ISL as “constitutional imperatives” to convince Republican state legislators they had the power to decertify state election results that favored President Joe Biden. [Breitbart, 1/3/21; Democracy Docket, 7/11/23; PBS, 9/21/23]
- In December 2020, Newsmax’s Dick Morris said that Trump “understands that the fight is now mainly going to be in the state legislatures.” Morris said, “I spoke to [Trump] three times. He's determined, that's what I would say. He's fighting and determined. He understands that the fight is now mainly going to be in the state legislatures.” He continued, “The state legislatures is the last line of defense because we have Republican majorities in Georgia, Pennsylvania, Michigan, Wisconsin, and Arizona. And in those states, the legislature — in every state — decides who the electors are under the Constitution.” [Newsmax, John Bachman Now, 12/7/20]
- Former Trump attorney and Salem Media host Jenna Ellis advocated for ISL theory in November 2020. Ellis posted, “State law delegation of election process and manner of selecting delegates does not supersede the US Constitution, which expressly provides the state legislatures authority to select delegates. State legislatures may reclaim that authority at any time. Article II, Sec 1.2.” [Twitter/X, 11/30/20]
- Turning Point USA founder Charlie Kirk on John Eastman’s ISL theory: “That’s exactly right.” During an interview on Kirk’s show, Eastman doubled down on his assertion that the Constitution gives state legislatures “the power to direct the manner for choosing presidential electors,” to which Kirk responded, “That’s exactly right.” Kirk also defended Eastman against the criminal charges he faces in Georgia for helping Trump plot to overturn the results of the 2020 election. “Is it now a crime to use the legal system to get to the truth of an election?” Kirk asked. [Salem Media Group, The Charlie Kirk Show, 8/2/23]
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Yet some of those same figures attack those who argue that the 14th Amendment might disqualify Trump from public office
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- Mark Levin: “The Democrat Party's fetish for the 14th Amendment is a vile attack on our elections directed at one man: Donald Trump.” In the article, he claims that “the language does not and was never intended to abolish separation of powers, which is core to our constitutional system. The proponents of this absurdity would have turned Biden into a bigger dictator than he already is. But none of this mattered to the proponents. They seek power at any cost.” [The Blaze, 9/5/23]
- On his radio show, Levin ranted about attempts to disqualify Trump, asking, “How many of you will accept the distortion and destruction of the Constitution this way, and hence, accept a Democrat win — whether it's the Senate, the House, or the presidency?” He added, “I'm not gonna even accept it now, with what the hell has been going on here. You don't get to do all this, interfere in all this, turn our Constitution inside out, turn our legal system into a Democrat party operation funded by the taxpayers of this country, and then expect us to accept the outcome of the damn election.” [Westwood One, The Mark Levin Show, 8/25/23]
- The Washington Examiner’s Byron York referred to the lawsuits as a “new scheme” to take out Trump. “No one's analysis, so far at least, has really explored the effect such a stunt would have on our political system,” wrote Byron York, the outlet’s chief political correspondent. “But you can be sure of one thing: Someone is going to try this. Some official somewhere will cite the new interpretation of the 14th Amendment, Section 3, to remove Trump from a ballot. And then, who knows what will happen?” [Washington Examiner, 8/28/23]
- Erick Erickson argued that Republicans might disqualify “BLM rioters” from office if Democrats use the 14th Amendment to remove Trump from state ballots. “Democrats deploying the 14th Amendment option will not be surprised when BLM rioters are disqualified from office in Republican states,” Erickson wrote. “And they'll scream and argue about it not being an insurrection, etc. And it won't matter.” [Twitter/X, 8/31/23]
- A few days later, Erickson said, “The left really doesn't care about the destructive fallout of the 14th Amendment option.” He continued: “Remember Schumer telling the Supreme Court they'd reap the whirlwind? That was nothing compared to what will undoubtedly and predictably happen. Beat Trump democratically.” [Twitter/X, 9/4/23]
- In The Federalist, “torture lawyer” John Yoo and Robert Delahunty argued that disqualifying Trump using the 14th amendment would “throw our electoral system into chaos.” They wrote, “One of the chief virtues of the Electoral College system is that it decentralizes the selection of the president: State legislatures decide the manner for choosing electors, with each state receiving votes equal to its representation in the House and Senate. ... The effort to hold Trump accountable for his actions should not depend on a warping of our constitutional system.” Yoo was one of the executive branch attorneys who famously provided legal cover for the George W. Bush administration’s sprawling torture program, laying the legal foundation for torture operations carried out in Afghanistan, Iraq, Guantanamo Bay, and countries that hosted CIA-run or associated “black sites.” [The Federalist, 8/25/23; Media Matters, 4/13/23]
- In Breitbart, Washington Times editor Charles Hurt claimed that Democrats in Washington are using the Civil War-era clause to exploit “long ago fractures for a short term political payday.” Hurt also referred to the legal argument as the “final partisan tool remaining in Democrats’ torture closet.” [Breitbart, 2/13/21]
- Conservative pundit Megyn Kelly: “It's such an absurd argument. This is the act of desperation. … So this is a loser, and it stinks of desperation.” Kelly and host Eric Bolling then warned that there will be an “insurrection” if Trump is removed from ballots [Newsmax, Eric Bolling: The Balance, 9/5/23]
- Jenna Ellis after pleading “not guilty” to charges related to election subversion: “The Left is purposefully calling J6 an 'insurrection' to justify a baseless 14th Amendment challenge.” She later posted, “This is textual semantics as much as calling J6 an ‘insurrection’ to frivolously invoke a 14th Amendment disqualification.” [Twitter/X, 8/22/23; Twitter/X, 9/11/23]
- Charlie Kirk went on a bizarre rant about the 14th Amendment, calling it “sloppily written” and claiming that it “has become kind of the modern Marxist revolutionary gateway to whatever they want to do.” He argued further, “It’s just too broad. Again, morally necessary, with too many opaque provisions and vocabulary that is now harming us in 2023. They believe the 14th Amendment nullifies the rest of the Constitution, as long as the government can be used to attack white people, or now to attack insurrectionists.” [Salem Media Group, The Charlie Kirk Show, 8/21/23]