WASHINGTON — Questions over whether former President Donald Trump is legally eligible to run for president have started to pick up steam in New Hampshire, where Republicans have been quarreling over Trump potentially being left off the state’s 2024 primary ballot.
The legal theory in question takes aim at Section 3 of the 14th Amendment, which says no one who has “engaged in insurrection or rebellion” or “given aid or comfort to the enemies thereof,” is allowed to hold public office. Some have argued that Trump’s efforts to overturn the 2020 election and his actions before and during the Capitol attack on Jan. 6, 2021 fit that definition.
It’s an argument that has quickly picked up steam in the must-win Granite State. New Hampshire Secretary of State David Scanlan has requested legal guidance from the New Hampshire Attorney General’s office, which is “carefully reviewing the legal issues involved,” Scanlan and Attorney General John Formella said in a joint statement on Tuesday.
But the officials clarified that they have not “taken any position” on whether the former president and current GOP frontrunner will be on the ballot in New Hampshire.
Attorney Bryant “Corky” Messner, who was also the GOP nominee for the New Hampshire Senate race in 2020, called the theory “very compelling” in an interview with USA TODAY. He predicted Scanlan will be “in a difficult position” over the seemingly narrow legal issue that could have major ramifications on the 2024 Republican primary.
“He’s very conscientious and serious about this, and he said he could not make a decision unless he had some legal guidance and I agreed with him,” Messner said. “I absolutely agreed with him that he’s in a difficult position without a court telling him how to interpret that.”
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Trump’s efforts to overturn the 2020 election and his actions surrounding the Jan. 6, 2021 attack on the Capitol, some legal scholars and his critics say, disqualify him from running for president under the 14th Amendment. That includes pressuring election officials in key battleground states and accusations he incited the Capitol attack.
The theory gained traction after two conservative legal scholars endorsed it in a draft law review article published earlier this month.
“We think that if these constitutional duties are taken seriously, there is a list of candidates and officials who must face judgment under Section Three. Former President Donald Trump is at the top of that list,” William Baude of the University of Chicago and Michael Stokes Paulsen of the University of St. Thomas wrote.
Messner said the article “really ignited me to essentially become an advocate for the Constitution.”
The goal, Messner said, is not to disqualify Trump from the ballot, but to have the Supreme Court decide on his eligibility. If New Hampshire officials decide to allow Trump to appear on the ballot, Messner said he would partly finance a lawsuit and suggested proponents of the theory would sue in other states.
“I think this ought to be nonpartisan, and it ought to be a focus on what the constitution says,” Messner said. “Of course, once you get into the legal system, it’s an adversarial process, and each side can argue their cases, but ultimately we need a judicial decision.”
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The legal theory has garnered plenty of critics. Chris Ager, chair of the New Hampshire state Republican Party, in an interview with USA TODAY, denounced the push to keep Trump off the 2024 ballot.
Ager, who is remaining neutral in the Republican primary, described the efforts as an “assault on American democracy” and argued that Granite State voters should decide whether Trump is qualified for the presidency.
“Whatever happened to letting the people decide? Let’s let the people decide, and let’s have a free, fair, open donnybrook of an election and whoever wins, let’s rally behind them and move the country forward,” Ager said.
If Trump is on the ballot and Messner or another party tries to push the case all the way to the Supreme Court, Ager said the state GOP would likely intervene and join the legal battle. If the secretary of state determines Trump can’t be on the ballot, Ager said his party would “join a lawsuit with the aggrieved candidate.”
The legal hypothesis is also controversial among Trump’s Republican rivals seeking the White House. One of Trump’s opponents, presidential candidate and former Arkansas Gov. Asa Hutchinson, has expressed support for the theory and said he expects multiple lawsuits across the country challenging Trump’s candidacy.
“I expect those lawsuits to be filed, I expect some states to take that action,” Hutchinson said on CNN’s “State of the Union.” “I think it’s a serious jeopardy for Donald Trump under our constitution of not being qualified.”
This article originally appeared on USA TODAY: Trump disqualified from being president? Some Republicans aren’t sure