Four questions about the effort to remove Trump from the 2024 New Hampshire ballot

Donald Trump, Melania Trump — President Donald Trump talks to the media before leaving the White House, Saturday, Nov. 9, 2019, in Washington. Trump is attending the NCAA college football game between Louisiana State University and Alabama in Tuscaloosa, Ala.

Paris Alston is co-host of Morning Edition at GBH News. Feedback? Questions? Story ideas? Reach out to Paris at paris_alston@wgbh.org.

Jeremy Siegel is co-host of Morning Edition at GBH News. Feedback? Questions? Story ideas? Reach out to Jeremy at jeremy_siegel@wgbh.org.

August 31, 2023

Jeremy Siegel: You're listening to GBH's Morning Edition. There's an effort underway in New Hampshire to bar Donald Trump, the former president, from the 2024 election. Some Republicans in the state are citing the 14th Amendment, which says no person can hold public office who has engaged in insurrection or rebellion.

Paris Alston: It's an argument that is gaining traction and causing friction amongst Republicans, in the Granite State and across the country. To get us caught up on this issue is UMass Boston political science professor Erin O'Brien, who joins us now. Good morning. Erin, thanks for being with us.

Erin O'Brien: Morning.

Siegel: So, Erin, what exactly is this constitutional argument, this amendment that's being cited in this effort?

O'Brien: So this is the first time, or one of the few times, a law review article has garnered so much attention. But yeah, it's a law review article by two conservative law professors who are originalists themselves. And their argument, just as you quoted, from Section 3 of the 14th Amendment, is that it bars sworn office holders who engaged in insurrection or rebellion against the U.S., or given aid or comfort to enemies thereof. And what it sort of turns on is this idea that that section is self-executing, meaning that any government official who is sworn to protect the Constitution has to implement it. And these two professors are saying, hey, Jan. 6, Donald Trump's actions, that is at the very least aiding and abetting. So he is not qualified for office. But Paris, as you indicated, you know, not all law professors or Republicans in New Hampshire agree.

Alston: Yeah. I mean, we know that there is a significant Trump base in New Hampshire, right? But at the same time, we know that there are splits among the Republican Party and everyone is trying to get all of their affairs in order before 2024. So what do you think, Erin? Does this hurt or help Trump, especially now that he's, you know, in the wake of this this fourth indictment here?

O'Brien: Well, if he's not on the ballot, it certainly hurts him, right?

Alston: Of course.

O'Brien: But the challenge is in part that the individual who brought the lawsuit in New Hampshire is a Republican running for office. One most of us might, including myself, had never heard of, and that is [John Anthony] Castro. And he said to the Republican New Hampshire secretary of state, Hey, [David] Scanlon, you know, you're one of these sworn officers. And so for Donald Trump, you know, I was a little glib, but like, yeah, not being on the ballot is obviously problematic. And having conversations about not being on the ballot, that's a little bit of a different issue. The Republican running for the Senate has said, hey, we need to take this seriously, thinking that's how he's going to get moderates to vote for him, Right? But if there is just conversation on this and it doesn't go through, I think that motivates the Trump base in New Hampshire even more to go through. So the conversation, ironically, I think, can be okay for Donald Trump from a motivational get out the vote effort. But if he's not on the ballot, if this succeeds, which I think it's unlikely to do, just because I think Scanlon's going to, you know, let the clock run out on it. But if he's not on the ballot, you know, it's problematic. But he'd win in the other states in all likelihood.

Siegel: Could you see something like this picking up traction in other states going forward? I mean, I imagine if you're a Republican who's opposed to former President Trump holding office again or running again, you kind of do have to calculate that push and pull between potentially getting him off of the ballot or just sparking more interest in his renewed candidacy. If New Hampshire continues to push this, I mean, you said it's unlikely, but if this goes through what we see this in other states?

O'Brien: Well, they already tried it in Florida. And the judge sort of kicked the case out, saying that they didn't have standing. In New Hampshire, you know, this seems to be going forward. But yeah, I think the biggest problem is the self-executing part, that if you're a constitutional officer, you have to do it. Legally, the three of us, we get it. But if you actually have to exercise this, we've seen the way Donald Trump has gone after so many individuals. You know, the two women who were poll workers were in the news this week or last week and this week about how, you know, the way in which being targeted by the president ruined elements of their lives. So I think it's one of these, a lot of Republicans who don't like Donald Trump are like, yeah, we should do this, but you do it, not me. I'll back you up, buddy. But you know, there's a difference between having the power and exercising the power. And I think a lot of these constitutional officers in other states, Republicans who are anti-Trump, are afraid to do it because Donald Trump is an electoral bully.

Alston: You know, Erin, I mean, there are so many people who probably would love to see this go through, right? I mean, because if it wasn't now, it was 2020 election challenge claims or it was 2016 allegations of sexual misconduct, etc., etc. And so at times, when we talk about the former president, right, it begins to sort of feel like, well, this is just another thing that may not go anywhere, right? How do we avoid falling into that trap again? Or are we sort of just already in it? Just, this is the reality here?

O'Brien: That is such a good question. And I think about it a lot.

Alston: You can't help it, right?

O'Brien: Yeah, because it's like he gets Teflon, to overuse a phrase. That's a self-fulfilling prophecy. If people like myself say, oh, this, you know, this isn't a big deal or this won't work, you know, the emperor has no clothes, only after the fact. So it does take someone bold enough or a team of individuals bold enough to take on Trump. We've seen four major indictments and maybe major changes in public opinion. Is that the barometer we use for success? I'm not making this argument uniquely, but the fact that four indictments from different courts to federal to state have tried to hold are currently trying to hold Donald Trump accountable, maybe it's late to some ears, but it's happening. I'm also struck by the fact, you know, in the Jack Smith case, the one out of D.C., that federal lawsuit relies on policies that were passed or legal precedent that was passed immediately following the Civil War, right? And the 14th Amendment was also passed immediately following the Civil War, like in this case and in the Jack Smith case, we're looking at post-Civil War law. That tells you how serious it is in this country right now. But that's the legal precedents we're going to. That, to me, is pretty shocking. And it should be shocking to listeners' ears. But Paris, to your point, we're so numb to another scandal, another scandal, another scandal.

Siegel: Erin O'Brien is a political science professor at UMass Boston. January is going to be here before we know it, so we hope to have you on again before then. Thanks so much for joining us.

O'Brien: Thank you both.

Alston: You're listening to GBH News.

There's an effort underway in New Hampshire to bar Donald Trump, the former president, from the 2024 election. Some Republicans in the state are citing the 14th Amendment, which says no person can hold public office who has engaged in insurrection or rebellion. It's an argument that is gaining traction and causing friction amongst Republicans, in the Granite State and across the country. GBH’s Morning Edition co-hosts Paris Alston and Jeremy Siegel asked UMass Boston political science professor Erin O'Brien what the effort may mean for the presidential 2024 election.

1. What’s the legal argument behind the effort to remove Trump from the 2024 ballot in New Hampshire?

The argument started gaining traction when two conservative law professors and members of the Federalist Society, William Baude and Michael Stokes Paulsen, wrote an article in the Pennsylvania Law Review arguing that Section 3 of the 14^th Amendment disqualifies Trump from running for president.

The section says that anyone who has “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof” may not “hold any office, civil or military, under the United States, or under any state.”

“This is the first time, or one of the few times, a law review article has garnered so much attention,” O’Brien said. “That section is self-executing, meaning that any government official who is sworn to protect the Constitution has to implement it. And these two professors are saying, hey, Jan. 6, Donald Trump's actions, that is at the very least aiding and abetting. So he is not qualified for office.”

Of course, not everyone agrees that the section applies to Trump.

“But the challenge is in part that the individual who brought the lawsuit in New Hampshire is a Republican running for office,” O’Brien said, referencing long-shot Republican candidate John Anthony Castro.

2. Could this effort to remove Trump from the ballot help further his campaign?

“Not being on the ballot is obviously problematic,” O’Brien said. “Having conversations about not being on the ballot, that's a little bit of a different issue.”

An unsuccessful effort to disqualify Trump may just serve as motivation for his base, she said.

“The conversation, ironically, I think, can be okay for Donald Trump from a motivational, get-out-the-vote effort,” she said. “If he's not on the ballot, you know, it's problematic. But he'd win in the other states in all likelihood.”

3. How likely is this effort to succeed?

Not overly likely, O’Brien said. New Hampshire Secretary of State David Scanlon, also a Republican, may let the deadline pass without acting.

“I think Scanlon's going to, you know, let the clock run out on it,” O’Brien said. “They already tried it in Florida. And the judge sort of kicked the case out, saying that they didn't have standing.”

The biggest hurdle, O’Brien said, may be relying on the self-executing nature of the amendment, meaning that any constitutional officer has a duty to uphold it.

“If you're a constitutional officer, you have to do it,” O’Brien said. “But you know, there's a difference between having the power and exercising the power. And I think a lot of these constitutional officers in other states, Republicans who are anti-Trump, are afraid to do it because Donald Trump is an electoral bully.”

She mentioned Georgia election workers Ruby Freeman and Wandrea ArShaye "Shaye" Moss, a mother and daughter who faced harassment after Trump falsely accused them of tampering with election results.

“A lot of Republicans who don't like Donald Trump are like, yeah, we should do this. But you do it, not me,” O’Brien said. “I'll back you up, buddy.”

4. Trump has been in trouble before — after the 2020 election, with sexual assault allegations in 2016, and many other times. Is this time any different?

It’s hard to say, O’Brien said. Trump’s “Teflon” nickname came about for a reason.

“That's a self-fulfilling prophecy, if people like myself say, oh, this, you know, this isn't a big deal or this won't work,” she said. “It does take someone bold enough or a team of individuals bold enough to take on Trump.”

With four criminal indictments against Trump, O’Brien said people should choose what they see as a barometer for success.

“I'm not making this argument uniquely, but the fact that four indictments from different courts to federal to state have tried to hold are currently trying to hold Donald Trump accountable, maybe it's late to some ears, but it's happening,” O’Brien said.

The fact that the case law and amendments being cited came about in the reconstruction after the US Civil War is also relevant, she said.

“That tells you how serious it is in this country right now,” O’Brien said. “That, to me, is pretty shocking. And it should be shocking to listeners' ears.”

But, she acknowledged that some voters may have scandal fatigue.

“We're so numb to another scandal, another scandal, another scandal,” she said.