A South Florida lawyer has filed a lawsuit against Donald Trump seeking to have the former president declared ineligible to run for another term as president.
The lawsuit, citing Trump’s involvement in the Jan. 6, 2021, insurrection, wants the federal courts to enforce the 14th Amendment to the Constitution, added after the Civil War to prevent people who engaged in rebellion against the United States from holding office again.
Lawrence Caplan’s lawsuit asserts the provision clearly applies to Trump:
“President Trump’s efforts both in Washington, as well as in Georgia and perhaps other states, as well as the consequential assault on the U.S. Capitol … make him ineligible to ever serve in federal office again. Now given that the facts seem to be crystal clear that Trump was involved to some extent in the insurrection that took place on January 6th, the sole remaining question is whether American jurists who swear an oath to uphold the U.S. Constitution upon their entry to the bench, will choose to follow the letter of the Constitution in this case.”
Caplan concluded that the “bottom line here is that President Trump both engaged in an insurrection and also gave aid and comfort to other individuals who were engaging in such actions, within the clear meaning of those terms” as spelled out in the 14th Amendment “Trump is no longer eligible to seek the office of the President of the United States, or of any other state of the Union.”
Caplan didn’t come up with the theory on his own.
The theory has received lots of attention in recent weeks after legal scholars — including one of the nation’s preeminent conservative legal thinkers and members of the conservative Federalist Society — said the 14th Amendment unquestionably applies to Trump, and prohibits him from another term as president.
Caplan’s lawsuit, filed Thursday in U.S. District Court in South Florida, utilizes that theory in asking the court to declare Trump is barred from seeking the presidency and is barred from participating in the 2024 Florida Republican primary.
Despite the legal underpinnings for the case, people who dislike and fear Trump shouldn’t get too excited and people who love him shouldn’t get too alarmed.
“Realistically, it’s not a Hail Mary, but it’s just tossing the ball up and hoping it lands in the right place,” said Charles Zelden, a professor of history and legal studies who specializes in politics and voting at Nova Southeastern University. “It’s hopefulness that we can make the problem that is Trump simply go away. And I’m sorry, Trump is too big a problem to simply go away. He’s too much of a challenge to the system.”
“It’s kind of one of those ideas that only a law professor could love,” Zelden said.
Caplan said he concluded that it’s not beyond the realm of possibility that “this character could get reelected” and he decided that “someone had to take the lead.”
Caplan said he’s not a political activist.
“I’m not active at all in party politics,” he said. “I’m not a political animal.”
He has voted for presidential candidates of both parties over the years: Republicans Ronald Reagan and George H.W. Bush and Democrats Barack Obama, Hillary Clinton (“I held my nose”) and Joe Biden (“because there was no other choice.”)
To anyone who attempts to claim he isn’t a patriot, Caplan said, he’d tell them that after he finished law school he worked for the National Security Agency.
People who have intentionally taken on or inadvertently gone against Trump have found themselves subject to harassment by the former president’s supporters. Most recently, members of the Georgia grand jury that indicted Trump for his attempt to overturn the 2020 election have been threatened.
Caplan said he wasn’t concerned about a negative reaction. “Don’t care. I’ve been through multiple brain surgeries and I’m not concerned. I can survive that.”
Caplan, 65, who grew up in Miami, lives in Boca Raton and practices law in Boynton Beach, said this case “will be my last litigation.” He said he would concentrate on estate planning, tax and business law. He also owns a title company.
Zelden said he sees validity to the scholars’ argument. But it’s complicated. “On a practical level, how do you make this happen in real life?”
“The question with this is how do you determine that what Trump did was an insurrection? In some people’s minds it is and in some people’s minds it isn’t. And even if you come down on the side that says ‘yes, this is an insurrection,’ is the provision in the 14th Amendment self actualizing? Does it need laws that make it work in practice or is it simply automatic?” Zelden said. “These are tough questions to answer because there are no obvious answers.”
Caplan’s complaint describes recent history, including elements of what happened on and around Jan. 6, 2021.
And it discusses Section 3 of the 14th Amendment, the disqualification clause, automatically barring from service those who “having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, 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” unless Congress restores their right to hold office by a two-thirds vote.
In a scholarly paper posted online earlier this month and slated for publication next year in the University of Pennsylvania Law Review, William Baude of the University of Chicago Law School and Michael Stokes Paulsen of University of St. Thomas School of Law, detailed their conclusion after a year of research that the 14th Amendment disqualifies Trump.
Both are members of the Federalist Society, the incubator of conservative and limited-government legal thinking that has effectively become a requirement for judicial nominations during Trump’s presidency and in Florida under Gov. Ron DeSantis.
On Aug. 19, J. Michael Luttig, a former federal appeals court judge and leading conservative thinker, and Laurence Tribe, a liberal professor emeritus of constitutional law at Harvard Law School, wrote in The Atlantic that the 14th Amendment disqualifies Trump.
During the Republican presidential debate on Wednesday, former Gov. Asa Hutchinson of Arkansas cited the legal scholars’ argument that Trump is disqualified. “This is something that disqualifies him under our rules and under our Constitution,” he said.
The outcome depends on what trial judges decide — with more cases likely in different states — followed by appeals courts and ultimately the Supreme Court, if it makes it that far in time for 2024 voting.
Caplan’s case was assigned to U.S. District Judge Robin L. Rosenberg, who sits in West Palm Beach. Rosenberg was nominated as a judge by Obama. Any appeals would go to the 11th Circuit Court of Appeals, a court dominated by conservatives, some of whom could put stock in the Luttig analysis.
Caplan said he expects his lawsuit will be opposed on multiple grounds, including whether he has legal standing to bring the case. In the complaint, he asserts he does.
Zelden said procedurally it may make more sense for someone challenging Trump’s ability to run would more appropriately file suit against the secretary of state, in charge of elections in many states, seeking an order to bar Trump from the ballot. “Suing Trump directly is not likely to have the impact that (Caplan) wants.”
Zelden said the 14th Amendment eligibility issue is like many things that surround Trump. “It’s just more of the mess that’s associated with Trump, whether you like him or dislike him, he makes the system of governance messy, complicated, difficult.”
Anthony Man can be reached at aman@sunsentinel.com, on Twitter @browardpolitics and on Post.news/@browardpolitics.
