Here we go with the Never Trumpers. Those pesky straight, not gay, Republicans, who don’t sit around every day reading cock stories and salivating over Trump shirtless body memes.
A Republican election lawyer with ties to three of former president Donald Trump’s GOP primary opponents has joined a crowded field of individuals and groups exploring whether the former president can be kept off the ballot for his role in fomenting the violent attack on the U.S. Capitol on Jan. 6, 2021.
Jason Torchinsky, a partner with the Virginia law firm Holtzman Vogel, has in recent days initiated conversations about the idea of trying to disqualify Trump with a range of figures, including a Democratic secretary of state, fellow election lawyers and a retired federal judge who has helped lead the push to question Trump’s eligibility, according to multiple people familiar with the calls, who spoke on the condition of anonymity to discuss private conversations.
The lawyer’s involvement reflects the latest escalation in an emerging legal fight over a once-obscure provision of the Constitution. The tussle has produced surprising alliances, and analysts say it will probably end with a ruling on Trump’s eligibility from the Supreme Court.
Torchinsky’s firm has done legal work for the campaigns of former New Jersey governor Chris Christie and businessman Vivek Ramaswamy, as well as for Never Back Down, the political action committee promoting the presidential campaign of Florida Gov. Ron DeSantis.
Torchinsky, a longtime GOP election lawyer who has also represented the Republican National Committee, is researching the issue not for Trump’s rivals but for Jacob Harriman, the founder of a nonpartisan service organization called More Perfect Union, Harriman said in a statement to The Washington Post.
“It is critical to understand if there is a legitimate risk of nominating a candidate who could be deemed to be ineligible for office,” Harriman said. Torchinsky declined to comment.
Yet the debate about Trump’s eligibility reflects the growing anxiety among his critics that even as an alleged felon, he has a realistic chance of winning the election. Trump holds a commanding lead in polls over his Republican primary rivals, and national surveys show him neck and neck in a general-election showdown with President Biden.
At issue is a line in the 14th Amendment, ratified three years after the Civil War, to block from office any public official who had “engaged in insurrection or rebellion” — intended to prevent traitorous former Confederates from regaining power.
Advocacy groups and individual voters in at least a dozen states have filed or explored filing lawsuits to block Trump from state ballots next year. Lawyers on both sides have predicted that the dispute may ultimately be resolved by the Supreme Court. Legal challenges have been filed in New Hampshire and Wisconsin, among other states, with election officials and interest groups saying many more are probably on the way. On Tuesday, a liberal group filed suit in Minnesota. Advocates have debated whether to focus on the primary or the general-election ballot.
Two attempted challenges, in Florida, have already been thrown out on the grounds that the groups of voters bringing the cases lacked standing. A case in Colorado, filed last week by a group of voters and the D.C.-based Citizens for Responsibility and Ethics in Washington, may fare better on that principle given a state law that allows any voter to challenge a candidate’s eligibility.
State election officials are monitoring the expected challenges but have not acted themselves to try to bar Trump from the ballot. Several said in interviewsthat they believe they have no power to do so under the laws of their states. Instead, they are looking to the Supreme Court, they said, to decide such an importantand divisive constitutional matter — and to do so quickly, before the election is fully underway.
“It is notable that more people died, and many more were injured, as a result of the January 6, 2021 attack on the Capitol than died or suffered injuries as a result of the attack on Fort Sumter,” William Baude of the University of Chicago and Michael Stokes Paulsen of the University of St. Thomas wrote, referring to the opening battle of the Civil War.
“Anyone with an iota of political acumen knows there is no such thing as coincidences in politics,” LaCivita said in a text message. “It’s not surprising that President Trump’s distant-placed challengers would be conspiring with the Deep State, Never Trumpers and whacky leftist lunatics to push a radical and unconstitutional plan that would deny Americans their ability to vote for their candidate of choice.”
Critics also say democracy would be better served by defeating Trump in 2024 at the ballot box, not in court.
Torchinsky’s firm, Holtzman Vogel, does millions of dollars in legal work for Republican causes and groups, including the Republican National Committee and GOP congressional and senatorial committees. The firm handled financial disclosure paperwork for Christie, and has received payments this year of more than $100,000 from the Ramaswamy campaign and more than $125,000 from Never Back Down, according to public records.
Jocelyn Benson, the Michigan secretary of state, was among those contacted by Torchinsky, though she did not confirm the phone conversation when asked about it in a text exchange.
“My office has received a number of calls, emails and letters regarding this issue over the last month, including a formal request for a declaratory ruling on the matter,” wrote Benson, a Democrat. “This issue is something that needs resolution, and the U.S. Supreme Court is the appropriate institution to provide that resolution. I think it would be better for the country if that resolution came sooner rather than later.”
Federal and state laws provide little to no guidance on how to prevent someone from serving under the 14th Amendment. The provision bars those it applies to from serving but not from running for office, raising the murky question of whether it’s legal to keep Trump’s name off ballots.
Arizona Secretary of State Adrian Fontes (D) said any challenge in his state must happen soon, given the election calendar. Arizona’s primary is slated for March, and Republican caucus-goers in Iowa will make their choices in January.
“Somebody needs to throw a punch and get this thing started so that we can get the courts to act,” Fontes said in a recent radio interview, “because I have a feeling it’s going to be nine judges in Washington, D.C., that make this call.”
Critics of the 14th Amendment theory, including some legal scholars, argue that neither of two prosecutions pending against Trump alleging that he attempted to illegally overturn the 2020 result — one federal and the other in Georgia — accuses him of sedition or rebellion. Trump was impeached by the Democrat-led House in 2021 for “incitement of insurrection” but acquitted by the Senate, where a bipartisan 57-43 vote for conviction fell 10 shy of the required two-thirds threshold. The House committee investigating Jan. 6 recommended last year that he be charged with four crimes, including aiding an insurrection.
“I don’t think that the 14th Amendment’s founders thought that any government official in the country, down to the lowliest county elections officer, could decide who’s an insurrectionist or not,” said John Yoo, a University of California at Berkeley law professor who was a senior Justice Department official during the George W. Bush administration. “You’ve got the Congress and the executive branch so far declining to find Trump committed insurrection. If they did and the courts upheld it, then I would say, yes, Donald Trump could be removed from the ballot.”
Some critics have other objections to the 14th Amendment’s use in Trump’s case: that it was enacted specifically to address Confederate traitors, that only Congress can invoke the amendment’s provisions and that a president is not a “federal officer.”
The clause has been used eight times, according to Citizens for Responsibility and Ethics in Washington, and nearly all of those instances occurred in the immediate aftermath of the Civil War. More recently, courts have appeared mostly skeptical of the idea.
A Georgia judge dismissed a case last year seeking to disqualify Rep. Marjorie Taylor Greene (R), an ardent Trump ally, ruling that while she was culpable for inflammatory rhetoric in the weeks and months leading up to the events of Jan. 6, she did not actually participate in the attack.
In Arizona, a state judge last year threw out lawsuits brought by Arizona voters that sought to disqualify from the primary ballot three Trump allies: former state representative Mark Finchem (R) and two Republican members of Congress, Andy Biggs and Paul A. Gosar.
One such effort did succeed last year: In New Mexico, a state judge ruled that Couy Griffin, a county commissioner and Trump supporter, was disqualified from holding office because of his conviction in federal court on a misdemeanor trespassing charge stemming from Jan. 6.
Griffin was removed after he won office rather than being barred from the ballot. The judge rejected his argument that his removal would subvert the will of voters who elected him, noting that Griffin took an oath to support the Constitution and then “engaged in that insurrection” after taking the oath.
One early test of the case against Trump could come in New Hampshire, home to the country’s first presidential primary, where a onetime Trump ally has signaled plans to sue if the state allows the former president on the ballot.
Bryant “Corky” Messner has said he voted for Trump twice, and he received Trump’s endorsement in 2020 when he made an unsuccessful run against Sen. Jeanne Shaheen (D-N.H.). But Messner, an attorney, has since become a Trump critic. After reading the article by Baude and Paulsen, he became convinced that the former president could not serve again because of his role in trying to overturn his 2020 loss.
Messner said he wants to see his case or others like it get to the U.S. Supreme Court as soon as possible to avoid having a patchwork of standards, with Trump appearing on the ballot in some states but not others. He noted that Trump’s candidacy could be doomed if he were removed from the ballot in just one or two swing states. And he argued that conservatives, who often claim to be constitutional “textualists,” should abide by the clear, original intent of the 14th Amendment.
“One of the things that has really surprised me about this is how many conservatives now want to ignore the text of the Constitution or suddenly view the Constitution as a living, breathing, changing document,” he said.
Free Speech for People, a nonprofit that describes itself as an advocate for political equality, filed Tuesday’s lawsuit in Minnesota and has plans for more in several other states if Trump appears on the ballot, said Ben Clements, the chairman of the group.
“This is based on an overwhelming public record and public findings by various officials, including courts, that establish he’s disqualified,” Clements said.
Opponents say it would be undemocratic to take the choice away from voters. Chris Ager, chairman of the New Hampshire GOP, said the party would intervene in any effort to keep Trump or other Republicans off the ballot in his state.
“The ultimate jury in this, in who should become president, is the American people,” Ager said.
Similarly, Georgia Secretary of State Brad Raffensperger (R), who refused to help Trump’s efforts to subvert election results and is a likely key witness in the state’s case, wrote in an opinion piece published in the Wall Street Journal that “denying voters the opportunity to choose is fundamentally un-American.” For him to consider removing Trump, he wrote, “would only reinforce the grievances of those who see the system as rigged and corrupt.”
There is no guarantee that a challenge to Trump would make it to the Supreme Court. A multitude of procedural hurdles stand in the way, and the high court could decline to take such a politicized case.
Still, Edward B. Foley, a law professor at Ohio State University, said he expects that the Supreme Court would take up the issue “and decide it one way or the other” should any lower court rule to disqualify the former president. He added that the public should not assume that the court’s 6-3 conservative majority, including three Trump-appointed justices, would automatically rule in his favor.
“Obviously it’s politically momentous,” he said. “But they’re called upon to answer difficult constitutional questions, and this one needs an answer.”