Getting Trump disqualified with the 14th Amendment could be dangerous -- here's why

Legal scholars are debating whether Donald Trump could be disqualified from the 2024 ballot for leading an insurrection after his election loss nearly three years ago, but that could pose a new threat to constitutional order.

A recent law review article argues that Section Three of the 14th Amendment, which dates from the Civil War, remains enforceable against candidates who "engaged in insurrection" after having "taken an oath" to "support the Constitution, and election law expert Walter Olson told The Bulwark that could potentially be applied to the former president and current GOP frontrunner.

"[William] Baude and [Michael Stokes] Paulsen’s article is very well put together, it is argued very carefully," Olson said. "They are very well respected conservative law professors associated with the Federalist Society, and they do a — really, it’s a tour de force — a magnificent job."

"It doesn’t mean, necessarily, I think that their view is going to prevail in the courts," Olson added.

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An 1869 ruling by a two-judge panel that included Supreme Court chief justice Salmon Chase found that some official acts by ineligible former insurrectionists could remain valid, but Olson said that Baude and Paulsen persuasively argued that the Reconstruction-era decision was wrong.

"On the other hand, precedent is precedent," Olson said, "and we know that the Supreme Court regularly agrees to live with old cases that it might agree were not really decided. So, that’s point number one."

"Point number two . . . is a vision of chaos and anarchy," he added, "in which every secretary of state, and perhaps down to a more granular level — you know, county election boards — could be refusing to let [Trump] on the ballot [and] could be refusing to tabulate votes as invalid. This could happen, as indeed it did happen in challenges to Representatives Madison Cawthorn and Marjorie Taylor Greene."

However, Olson said, the U.S. Supreme Court would likely intervene to prevent such a tumultuous outcome.

"Let me say somewhat reassuringly, all those things are going to get appealed very quickly, if they have any success, and go right up to the Supreme Court," Olson said. "It’s crucial for the country. But it will also probably happen, that if this gets any traction, it is going to be resolved . . . early by the Supreme Court, so that we don’t have to go through uncertainty about whether or not it applies to Trump."