Nine California lawmakers have written to the state’s attorney general asking whether Donald Trump is disqualified from standing in the upcoming Republican primary under the 14th Amendment of the U.S. Constitution.
A number of prominent legal scholars have argued the 14th Amendment, which prohibits anyone who swore an oath “to support the Constitution,” and then engaged in “insurrection or rebellion,” from serving in any civil or military office, means any White House return from Trump would be unconstitutional.
This claim is premised on Trump’s attempts to overturn the 2020 presidential election result, during which hundreds of his supporters stormed the U.S. Capitol on January 6, 2021, constituted an “insurrection or rebellion.” Trump pledged to “preserve, protect and defend” the Constitution during his inauguration.
Trump’s bid for a second term in the White House could be complicated by a range of legal action, including four ongoing criminal cases. The Republican frontrunner is facing charges related to claims he orchestrated the payment of hush money to an adult film star, mishandled classified documents, and broke the law attempting to overturn the 2020 presidential election both nationwide and in the state of Georgia, specifically.
Trump has pled not guilty to all counts in the four cases and insists the charges against him are politically motivated.
On Monday, eight Democratic members of the California State Assembly, and one from the state’s Senate, signed a letter to Attorney General Rob Bonta asking him to “seek the court opinion as to whether or not Donald J. Trump should be removed from the ballot of the presidential primary election scheduled in California on March 5, 2024.”
Newsweek reached out to Donald Trump via the press inquiry form on his website for comment.
The letter, written by State Assemblymember Evan Low, said Bonta was “uniquely positioned to proactively seek the court’s opinion to confirm Mr. Trump’s inability to hold office given these facts.”
A spokesperson for Bonta confirmed to The New York Times that the letter had been received and said they would “review the request internally.” They added: “There is no denying that Donald Trump has engaged in behavior that is unacceptable and unbecoming of any leader, let alone a president of the United States. Beyond that, we have no additional comment.”
A poll released earlier this month conducted by the UC Berkeley Institute of Governmental Studies found Trump is on track to win all of California’s 169 delegates at the March 5 primary. This is because he is polling at 53 percent, and a recent rule change means if any Republican candidate gets over 50 percent of the vote they automatically get all the state’s delegates.
In total, just over 1,200 delegates are needed to clinch the Republican presidential nomination, with California providing more than any other state, meaning being rejected from its ballot would be a major blow to the Trump campaign.
However, if a California court does rule Trump should be removed from the primary ballot the decision will almost certainly be challenged legally by his campaign team and could end up in the Supreme Court which currently has six conservative-leaning justices and only three liberals.
In August conservative affiliated law professors William Baude and Michael Stokes Paulsen, from the University of Chicago and the University of St. Thomas, respectively, released a report arguing Trump is ineligible to serve a second term due to his “participation in the attempted overthrow of the 2020 presidential election.”
Speaking to Newsweek, Adam Kamenstein, a former federal prosecutor and partner with the Los Angeles-based law firm Adams, Duerk & Kamenstein, argued the case that Trump is constitutionally prohibited from serving as president again is strong but unlikely to gain broad acceptance.
“The most highly respected, conservative legal scholars have recently made a trenchant and compelling case that Trump is disqualified from holding the office of president, based on section three of the 14th Amendment, which prevents someone who participated in an insurrection from holding that office, as plainly as the Constitution bars someone who is foreign-born or younger than age 35,” Kamenstein said.
“However, like all legal arguments, its practical application rests on the common acceptance of certain facts. We don’t have that here, today, where facts and truth vary depending on one’s political point of view. Even if everyone agreed on the underlying Constitutional scholarship, we would never see agreement on the facts to which it must be applied. So, no matter how compelling the legal scholarship, it is unlikely to gain broad acceptance.”
In addition to California bids to remove Trump from the ballot on the basis of the 14th Amendment have already been launched in the states of Colorado, New Hampshire, Michigan and Arizona.