The day before Mock Convention 2024 kicks off, the U.S. Supreme Court will hear a case with the potential to upend the 2024 presidential race. The question: Is former President Donald Trump disqualified by Section 3 of the Fourteenth Amendment from holding the office of the presidency in 2024?

On Dec. 19, the Colorado Supreme Court ruled that Trump was disqualified from the state’s presidential primary election ballot under the Fourteenth Amendment’s Disqualification Clause. Now, before the U.S. Supreme Court., the future of the Trump campaign may be on the line.

One of the leading figures of the view that the former president is constitutionally disqualified is Judge J. Michael Luttig ’76, one of the most influential legal scholars in the United States. Over his vast legal career, Judge Luttig served as an Assistant Attorney General, Counselor to the Attorney General of the United States, a judge on the United States Court of Appeals for the Fourth Circuit, and a Supreme Court short lister. At the time of his appointment to the federal court, Luttig was 37, the youngest federal judge in the country. He has long been one of the leading conservative legal thinkers in the nation.

I spoke with Judge Luttig to explore the legal origins and implications of the Colorado disqualification case now before the Supreme Court and to learn more about how a potential disqualification might shake up the 2024 presidential race. An amicus brief filed by Judge Luttig and others can be read here.

Starting with an op-ed in The Atlantic last summer, you and Harvard professor and scholar Laurence Tribe have led the legal movement arguing that former President Donald Trump is disqualified from assuming the presidency again under Section 3 of the Fourteenth Amendment. I know that you have made yourself an expert in this area of legal study–where did that process begin?

My interest in the question of the former president’s disqualification under the Fourteenth Amendment began on January 6, 2021, when I provided the counsel to former Vice President Mike Pence that he did not have the authority under the Constitution or laws of the United States to overturn the 2020 presidential election as former President Trump was arguing he did. From that moment on, and for the past three plus years, I have been studying all things January 6th and, in particular, the constitutional and legal arguments that were made by the former president for attempting to overturn the election, as well as the Constitution and laws relating to the punishment of the former president for his attempt to overturn the election. That first took me not to the Fourteenth Amendment, but rather to Title 18 U.S.C. § 2383, which is the federal statute that criminalizes an insurrection against the United States. For much of the first year or so after January 6, 2021, I focused on that statute and the question whether the former president had engaged in an insurrection or rebellion against the United States or the authority of the United States when he attempted to remain in power beyond his four-year term, preventing the peaceful transfer of power for the first time in American history. That research and thinking naturally led to the next question: whether, for his conduct in and around January 6th, the former president is disqualified under Section 3 of the Fourteenth Amendment.

Can you explain your reading of the 14th Amendment and why you think Trump should be taken off of primary and general election ballots?

Section 3 of the 14th Amendment, known as the Disqualification Clause, disqualifies any person who has previously taken an oath to support the Constitution of the United States and thereafter engages in an insurrection or rebellion against the Constitution of the United States. Any person who is found to have done that is disqualified thereafter from holding any office under the United States, including the presidency of the United States. It is my conclusion that the former president is disqualified from assuming the presidency in 2024 by virtue of his insurrection and rebellion against the United States Constitution in and around January 6, 2021.

Central to that argument is that President Trump engaged in insurrection. Can you explain why his speech at the Eclipse was not protected under the First Amendment?

Proof of an insurrection or rebellion against the United States Constitution does not require proof of protected speech. By way of illustration, although the United States has not charged the former president with inciting an insurrection under Title 18, the charges that have been brought against him for January 6th can be proven without reference to the former president’s speech, which is to say that the proof of the criminal offenses is possible by proof of conduct or acts, without regard to speech arguably protected under the First Amendment.

You earlier argued that Trump should not be impeached for his conduct on January 6th. I know that these are two separate clauses of the Constitution, can you go into that?

Yes, they are entirely different clauses of the Constitution, ratified at different times in our history and serve entirely different purposes. There is not a constitutional scholar in the world who would ever say that the two different clauses should be interpreted to come to the same conclusion under each. I don’t even know what that means in this context. That simply is not a canon of constitutional interpretation and never would be. The first and most important thing to know about impeachment is that it is a political process. A person, including the president of the United States, can be impeached for purely political reasons, whether or not he has violated the Constitution or laws of the United States. Recognizing that, the impeachment clauses themselves provide that an individual who is impeached and removed or not removed from office can, after leaving office, be prosecuted for any crimes that may have been alleged in the impeachment process.

The Disqualification Clause of the Fourteenth Amendment is premised on the understanding that the individual disqualified is not then incumbent in an “office under the United States.” Turning to the question of whether the former president is disqualified, he is not an “officer of the United States” and he does not hold an “office under the United States” today. The reason that he is potentially disqualified is because he once was the President of the United States, and in that capacity he held an “office under the United States,” was an “officer of the United States,” and took an oath to support the Constitution of the United States. So, if under Section 3 of the Fourteenth Amendment he engaged in an insurrection or a rebellion against the Constitution of the United States in and around January 6, he is disqualified from holding the presidency again.

Something you have said in so many words is that the originalist interpretation here backs up your conclusion that President Trump should be disqualified. Can you explain why you believe that?

One who believes in an originalist interpretation of the Constitution believes that one must examine and determine the meaning of the words in the Constitution at the time the words were written. In the original Constitution, that would be from, let’s say, 1787 to 1789. With respect to the Fourteenth Amendment, it would be in and around1868, when the Fourteenth Amendment was ratified. In any case, an originalist looks back to the available sources at the time contemporaneous with the ratification of the particular clause of the Constitution and tries to divine from those public sources what the words meant when they were framed and ratified.

Turning to the former president’s case, the discussion about his disqualification was prompted by a comprehensive and scholarly treatise on the then-contemporaneous meaning of the words of Section 3 by Professors William Baude and Michael Stokes Paulsen, both of whom are well known conservative thinkers and scholars of the Constitution. They first determined and concluded that, under an originalist understanding of Section 3 of the Fourteenth Amendment, the former president is disqualified from holding the presidency again.

I know that you won’t predict the outcome of this Supreme Court case, but if the conservative justices on the Court want to stick with their originalism and textualism, do you think that they have to disqualify the former president?

I never predict what the Supreme Court might do. All that I or anyone else can do is evaluate the objective law, in this case Section 3 of the Fourteenth Amendment and determine whether the president is disqualified under that objective law. That’s what I have done with my friend and colleague Professor Laurence H. Tribe from Harvard, and that is what Professors Baude and Paulsen have done.

One way that I have described the law as it relates to the former president’s case is that I do not believe there are any legitimate off ramps to a decision by the Supreme Court that the former president is disqualified from holding the presidency again.

Looking into a few contended off ramps, some of the legal arguments made by President Trump’s legal team and others in the legal community include a belief that congressional action is needed, that running for office is separate from assuming office, and that the clause does not apply to presidents. What do you make of those arguments?

Whether congressional action is required raises the Constitutional question of whether Section 3 is self-executing. If it is self-executing, and as such, it does not require action by the Congress of the United States. Were it not self-executing, then it would require action by Congress. Under the law as I have read and studied it, there is no argument whatsoever that Section 3 is not self-executing. And it seems exceedingly unlikely that the Supreme Court will hold otherwise.

Assuming that the Court agrees that Section 3 is self-executing and that congressional action is not required, then the several questions that the Court must decide are these: One, is the “Office of the President” an “office under the United States.” Two, is the President of the United States an “officer of the United States.” And three, when a president takes the constitutionally prescribed oath to become president, does he or she take an oath to “support the Constitution of the United States.”

The last question arises because the constitutional oath of the president reads in relevant part that the president will “preserve, protect, and defend” the Constitution, whereas the oath referenced in Section 3 of the Fourteenth Amendment is an oath to “support” the Constitution. By its terms, it is not an oath to “preserve, protect, and defend” the Constitution. That is why the former president is arguing, implausibly in my view, that he never took an oath to “support” the Constitution, he only took an oath to “preserve, protect, and defend” the Constitution.

The former president’s argument as to whether he is an “officer of the United States” has its genesis in the same phrase in the Appointments Clause of the Constitution. In the Appointments Clause, the phrase does not include the president; the Appointments Clause provides that the president appoints “the officers of the United States.” Therefore, the argument goes, the president is not himself an “officer of the United States,” because he does not appoint himself president.

Then last, the former president’s argument is that he doesn't hold an “office under the United States.” Frankly, I don’t even know what his argument is that the “Office of President” is not an “office under the United States.” The office of the president is referred to as such many times in the Constitution. There is simply no argument that the “Office of President” is not an “office under the United States.”

What are the implications beyond this case if there is a ruling that holds that Section 3 of the 14th Amendment is not self-executing?

The Court simply cannot hold that Section 3 is not self-executing because, doctrinally, that would, in effect, require the Court to say that Section 1 of the Fourteenth Amendment is also not self-executing. Under long established case law, Section 1 is self-executing. So, it would wreak doctrinal havoc for the Court to hold that Section 3 is not self-executing.

What about the implications beyond this case if the Court finds that the president does not hold an “office under the United States”?

The implications and consequences throughout the Constitution would be enormously consequential, which is why the Supreme Court is also exceedingly unlikely to hold that the “Office of President” is not an “office under the United States.”

Another argument against ballot disqualification, this one made by former Solicitor General Noel Francisco, is that running for office is separate from assuming office, and therefore the Fourteenth Amendment does not apply in this case, although it might apply down the road if President Trump wins election and attempts to hold office.

Solicitor General Francisco is a former law clerk of mine, and you’ve stated his argument perfectly well. In support of that argument is that Section 3 disqualifies a person only from holding office. By its terms, it does not purport to prevent a person from running for an office that he or she might be disqualified from holding.

There is also an argument under the Electors Clause of the Constitution that states can put on their primary ballots whoever they wish. Does that only apply to the primary process or the general election process as well?

The argument that the Electors Clause permits the respective states, under state law, to qualify for the primary ballot any person that it wishes is strong. There is also a strong argument that, under the Electors Clause, the states also have the authority and power to qualify or not qualify persons for the general election ballot – in the first instance, subject to review by the Supreme Court of the United States.

Wrapping this up, one of our cycle initiatives at this Mock Convention is Mock Con meets Main Street, where we aim to support Lexington’s small business community. I know Palms is a longtime favorite of a number of alums; where were your go-to spots in Lexington when you were at W&L?

There was Mother’s, which was right next door to Alvin Dennis and the Dutch Inn, and White’s Truck Stop, between Harrisonburg and Lexington, which I believe is still in business, but perhaps under another name. Then, of course, there was the Southern Inn! My wife, Elizabeth, and I got married in Lee Chapel, and we had breakfast at the Southern Inn the day of our wedding!

I hate to tell you, but the Southern Inn is now catering only!

Now, that is a national tragedy…