Otero County, New Mexico Commissioner Couy Griffin speaks to reporters as he arrives at federal court in Washington, Friday, June. 17, 2022. A New Mexico state district court judge has disqualified Griffin from holding public office. State District Court Judge Francis Mathew issued a ruling Tuesday, Sept. 6, 2022, that permanently prohibits Griffin from holding or seeking local or federal office. (AP Photo/Gemunu Amarasinghe, File)

How can Merrick Garland keep Donald Trump, as Liz Cheney put it, “from anywhere near the Oval Office”?

Would indicting Trump for violating the Espionage Act because of his mishandling and refusal to return some 100 classified documents seized by the FBI at Mar-a-Lago? That looks like a slam-dunk prosecution, but it won’t be enough to keep Trump from going anywhere near the White House. Even if convicted, Trump can still run. In 1920, the Socialist Party leader Eugene Debs ran for president from prison. The perennial presidential candidate John Gordon ran for the office from prison in 1976, and a federal court said he was still eligible to chase his Oval Office dreams.

Could an indictment of Trump brought under 18 U.S. Code § 2071, which makes the removal, concealment, or destruction of documents a federal crime, be enough to prevent the former president from a 2024 presidential bid? At first blush, it would seem to be. The penalty includes disqualification from holding office.

But the disqualification penalty, legal scholars argue, is trumped by Article II, Section 1 of the Constitution, which lays out the only qualifications to be president: natural-born citizenship, at least 35 years of age, and residency within the United States for 14 years. That article does not preclude felons, insurrectionists, or document removers from running.

The additional constitutional restriction, found in the Twenty-second Amendment, is that anyone elected twice to the office is disqualified—and Trump claims that he was elected twice. But what Trump thinks, as we all know, is closer to fantasy than reality.

Daring the legal system to confront him, Trump has threatened that there would be “problems in this country the likes of which perhaps we’ve never seen before,” and that he would run anyway. The intimation of violence, especially after the January 6 insurrection, is obvious. The Harvard Law professor Laurence Tribe argues that “holding Trump accountable—and disqualifying him from future office—would not be a partisan act, but one needed to preserve the republic.”

What is to be done?

One idea gaining currency for disqualifying Donald Trump from running for president is using the Fourteenth Amendment, ratified in 1868. Section 3 of the amendment provides that “no person shall … hold any office, … under the United States, … who, having previously taken an oath, … as an officer of the United States … to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”

The provision was meant to bar Confederate rebels from holding office after the Civil War. Can it apply to Trump? Supreme Court “originalists” may say no. And because, fortunately, we’ve had no insurrections or rebellions since the Civil War, there isn’t any precedent.

The evidence is overwhelming that Trump “engaged in rebellion” against the Constitution and “gave comfort” to its enemies, like the Proud Boys. But, as legal scholars acknowledge, that provision of the Constitution is not self-executing, which probably means that Section 3 of the Fourteenth Amendment has no teeth unless Congress gives it some. Section 5 states, “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” If Democrats have control of Congress, which they will until January 1, 2023—and maybe after that, with some bipartisan support—they could enact legislation enforcing Section 3, providing they could get around a Republican filibuster in the U.S. Senate.

But legislation is not the exclusive remedy; there are also the courts. In a New Mexico lawsuit brought by Citizens for Responsibility and Ethics, a courageous state court judge gave the Fourteenth Amendment teeth. Judge Francis Mathew in Santa Fe ordered Couy Griffin to be “barred for life” as Otero County commissioner due to his participation in the January 6 insurrection. Griffin, the founder of “Cowboys for Trump,” was convicted of entering restricted Capitol grounds and sentenced to 14 days in jail. He was found to have played a vital role in the “Stop the Steal” movement, trumpeting the baseless claim that the 2020 presidential election was stolen.

Not all courts have made similar determinations. In May, an administrative law judge in Georgia ruled that Representative Marjorie Taylor Greene may remain on the ballot in the state. A group of voters had attempted to disqualify her from running for reelection under Section 3. In North Carolina, a federal judge blocked the state board of elections from even hearing a challenge to Representative Madison Cawthorn’s candidacy for reelection. The challenge became moot after Cawthorn lost his primary. But, unlike Trump, neither Taylor Greene nor Cawthorn was accused of masterminding an insurrection.

Mathew’s ruling marks the first time in more than 150 years that a court has disqualified a public official under the Fourteenth Amendment, and the first time any court has determined that the events of January 6 were an insurrection. (The numerous federal prosecutions have been based on other transgressions, like criminal trespass or unauthorized entry.) Griffin has appealed the ruling to the New Mexico Supreme Court.

But if the ruling stands, Garland (or conceivably a presidential candidate with standing, such as Liz Cheney) may have at least one path to disqualify Trump from running again. Whether the ex-president would accept such an adverse ruling with more equanimity than he did losing the 2020 election is a lurking question.

James D. Zirin

James D. Zirin, a former federal prosecutor in the Southern District of New York, is the author of Supremely Partisan.