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If a constitutional provision disqualifying Donald Trump from the presidency sounds too good to be true, that's because it probably is.
A forthcoming law review article by two prominent conservative academics has ignited interest in Section 3 of the 14th Amendment. The section, approved just after the Civil War, declares that no one who has "engaged in insurrection or rebellion" against or "given aid or comfort to the enemies" of the United States may hold a number of high federal offices.
The scholars' case for invoking Section 3 to keep Mr. Trump off the 2024 ballot is intriguing. But banking on an arcane paragraph to protect the country from a second Trump term would be foolish.
The first set of hurdles involve the provision's legal intricacies. For every clause presents a question. The answers, in most instances, aren't terribly clear. To start, what offices does the restriction apply to? There's no explicit mention of the presidency. This question appears surmountable: It seems implausible that the most powerful position in the land would be excluded when all possible other posts to which public servants are sworn in are covered.
Similar is the question of whether Congress effectively axed Section 3 with the Amnesty Act of 1872, which removed the disqualification from most of these Confederates and their allies. The language, full of past-tense verbs and words such as "hereby," suggests that the removal applied only retrospectively, just to the Confederates in question.
More confounding is the debate over whether, assuming Section 3 remains in effect, it applies automatically -- or whether Congress must pass a law giving it life. Generally, when Congress is required to put the word of the Constitution into force, the Constitution says so. But complicating matters is an opinion by Chief Justice Salmon P. Chase, handed down the year after the 14th Amendment's ratification, declaring that Congress must indeed give its say-so.
Meanwhile, all these quibbles seem academic compared with this issue: Is Donald Trump an insurrectionist?
Unfortunately, that's no easy question, either. Section 3 was clearly a direct response to the crisis of the times: the Civil War and its aftermath.
There's less of a case, however, that Mr. Trump engaged in this insurrection. The various prosecutors who have indicted him so far have charged him with plenty of crimes -- but not, notably, the federal crime of insurrection. As far as whether the former president nonetheless gave "aid or comfort" to "enemies of the United States" who were engaging in insurrection, it's easy to see it both ways.
Mr. Trump provided no tangible help to the men and women who stormed the nation's seat of government. But, as the Jan. 6 committee has carefully laid out, Mr. Trump egged on supporters at the National Mall who he knew were armed -- and, later, when they were beating down the building's doors, he neglected to call them off despite having the influence to end the violence.
The disputes that invoking Section 3 of the 14th Amendment would elicit would almost certainly make their way to the Supreme Court -- where the chances of Mr. Trump's disqualification being affirmed seem low. The public would be better off pursuing a more straightforward route to keeping the former president out of the Oval Office: voting.
* Guest editorial excerpt by The Washington Post.