Sunday, August 22, 2021

The OLC and Section 3

Gerard N. Magliocca

A few days ago, Juan Williams wrote an op-ed in The Hill arguing that Section 3 of the Fourteenth Amendment bars Donald Trump from being elected President in 2024. Williams went on to say that Attorney General Garland should issue a legal opinion reaching that conclusion. 

I doubt that the Attorney General is keen to wade into this matter now (either directly or by asking the OLC to do so). There is, however, precedent for such an opinion. In 1885, President Grover Cleveland sought an opinion from his Attorney General about whether an ex-Confederate that he considering for an ambassador position was ineligible under Section Three for such an appointment. The Attorney General then wrote a (rather questionable) opinion stating that the person was not ineligible. 

The Attorney General could therefore ask the OLC to examine the question of whether Donald Trump is ineligible to receive a presidential appointment to something that is clearly covered by Section 3. This is not the same as asking whether Trump is ineligible to be elected president. But I don't really see why the Attorney General can opine on that issue unless and until Trump actually runs or Congress passes some sort of enforcement legislation. When the issue of Trump's eligibility is litigated in 2023 or 2024, the AG can file an amicus brief and give the view of the United States. 

Still, perhaps there is some merit in getting an OLC opinion on the other aspects of what occurred on January 6th (whether it was an insurrection, what constitutes "engaging in insurrection," etc.)


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