Zoe Berg, Senior Photographer

Three years ago, Yale Law School professor Bruce Ackerman LAW ’67 and McKinney School of Law professor Gerard Magliocca LAW ’98 challenged the eligibility of former president Donald Trump to run in future federal elections. 

The two began raising questions about his candidacy under the 14th Amendment which are now at the center of many cases before several courts across the country. 

On Jan. 11, 2021, Ackerman and Magliocca published a joint op-ed in The Washington Post, just five days after the Jan. 6 insurrection in which a mob of Trump’s supporters breached the United States Capitol, attempting to overturn the results of the 2020 presidential election. The insurrection led to multiple deaths and injuries, as well as damage to the Capitol building.

In their op-ed, the duo asserted that, according to Section 3 of the Constitution’s 14th Amendment, the insurrection called Trump’s eligibility to run into question. They contended that the Amendment, enacted in the aftermath of the Civil War, could be used to disqualify Trump from holding future federal office positions if he was found to have “engaged in insurrection or rebellion against” the Constitution of the United States. According to Magliocca, the pair was the first to publish the idea of using the 14th Amendment against Trump.

“I had written a paper at the end of 2020 on Section 3 of the 14th Amendment and so it just so happened that I was also working on it when January sixth happened,” Magliocca told the News. “It was front and center in my mind.”

Magliocca, a specialist on the 14th Amendment, told the News that around one to two days after the insurrection, Ackerman contacted him. Magliocca said that Ackerman had come across his writings on the 14th Amendment, sparking conversation over their shared interest in the insurrection. These discussions ultimately led them to pen the Op-Ed.

Magliocca said that, at the time, he was reflecting on two key thoughts following the events of Jan 6. First, he observed the widespread use of the term “insurrection” to characterize the events that unfolded. Second, he acknowledged Trump played an “important role” in those events, prompting Magliocca to question whether this meant that the former president directly engaged in the insurrection and whether that could mean Section 3 of the 14th Amendment also applied to Trump.

“We didn’t know all the facts of what was going on the day when it happened, but we knew that he kind of played a role with the speech and so on,” he explained.

Magliocca emphasized that numerous questions persist around this legal issue including its applicability to a president. These unresolved aspects are currently the subject of legal scrutiny in various state courts, where lawsuits argue that Trump should be deemed ineligible under the 14th Amendment.

The first court to release a decision was the Colorado Supreme Court, where Magliocca played a pivotal role by testifying before the court in November.  The state court, in a narrow 4-3 decision, ruled in December that Trump was ineligible to run under Section 3 of the 14th Amendment and therefore he was removed from the state’s 2024 ballot.

“President Trump did not merely incite the insurrection,” the Colorado Supreme Court’s majority opinion reads. “Even when the siege on the Capitol was fully underway, he continued to support it by repeatedly demanding that Vice President Pence refuse to perform his constitutional duty and by calling Senators to persuade them to stop the counting of electoral votes. These actions constituted overt, voluntary, and direct participation in the insurrection.”

As of Jan. 12, 2024, Maine is the only other state to rule that Trump is ineligible under the 14th Amendment. With formal challenges having been filed in at least 35 states, rulings in at least 16 other states, including Connecticut, have either favored keeping Trump on their state’s ballot or dismissed the case outright, according to the New York Times. 

On Friday, Jan. 5, the United States Supreme Court agreed to hear the case in Colorado, now titled Trump v. Anderson, addressing Trump’s eligibility for the state’s Republican primary. This Supreme Court decision could impact the 2024 election: if the justices rule Trump ineligible for public office, votes for him would not be counted in any state.

Yale Law experts remain divided 

Despite Yale Law graduates taking a leading role in pushing for the idea of using the 14th Amendment against Trump, the Yale Law School community remains divided on the issue.

“A nineteenth century legal solution is a bad fit for a twenty-first century political problem,” Yale Law School professor Samuel Moyn wrote in an email to the News. “Those lawyers who have tried to revive Section 3 from the grave have drastically underplayed how infirm the legal case is for applying the provision to Donald Trump.”

Moyn added that although he believes that many of the case’s lawyers have “the best of intentions,” this legal issue is another example of “avoiding the central task of presenting the American people with a political alternative worthy of their votes.”

David Lat LAW ’99, author of the legal commentary Substack newsletter Original Jurisdiction, told the News that Yale Law School alumni and professors “loom large” in the effort to bar Trump from the presidency under the 14th Amendment. He noted that the leading academic article on this subject was co-authored by two Yale Law graduates — Will Baude LAW ’07 and Michael Stokes Paulsen LAW ’85 DIV ’85.

Lat mentioned that some Yale Law School graduates fall on the other side of the legal debate, such as Harvard Law School professor Lawrence Lessig LAW ’89. Lessig called the approach “a terrible plan” to neutralize Trump. 

“I guess it just goes to show that whenever there’s a major legal debate in this country, you’ll find Yale Law alums chiming in,” Lat wrote to the News.

The Supreme Court is set to hear Trump v. Anderson on Thursday, Feb. 8.