Former GOP U.S. Senate candidate Corky Messner says he’s defending the U.S. Constitution.
Republican state party chair Chris Ager calls it “antithetical to our ‘Live Free or Die’ tradition.”
And Gov. Chris Sununu “doesn’t expect it” to be a problem for the former president.
It is the highly-publicized effort to keep Donald Trump off the New Hampshire ballot by declaring him disqualified under Section 3 of the 14th Amendment of the U.S. Constitution.
Section 3 bars people from holding “any office” if they “shall have engaged in insurrection or rebellion against [the Constitution], or given aid or comfort to the enemies thereof.” It was a response to the Civil War and was intended to prevent former Confederates from holding positions of power in the post-war United States.
According to a law review article by two members of the conservative Federalist Society, not only has Trump clearly run afoul of the 14th Amendment, but nothing is keeping New Hampshire Secretary of State David Scanlan from booting him from the ballot right now.
“No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, 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. But Congress may by a vote of two-thirds of each House, remove such disability.” — 14th Amendment, Section 3
“Section Three requires no legislation or adjudication to be legally effective. It is enacted by the enactment of the Fourteenth Amendment. Its disqualification, where triggered, just is,” they write. [emphasis in original]. “No prior judicial decision, and no implementing legislation, is required for Section Three to be carried out by officials sworn to uphold the Constitution whose duties present the occasion for applying Section Three’s commands. Section Three is ready for use.”
The article and its endorsement by prominent legal scholars J. Michael Luttig (a conservative) and Harvard Law Professor Emeritus Laurence Tribe (a liberal) have generated much attention. Former Gov. Asa Hutchinson (R-Ark.) mentioned it on stage during last week’s GOP presidential primary debate.
And now Messner is making headlines by announcing he wants to see action taken, and he may take it himself.
Messner, who founded a law firm in Colorado in 1995 and was the GOP nominee for the U.S. Senate in 2020, told NHJournal he found the 120-page law review article “very compelling.”
“I was reading it and I thought, ‘Someone’s got to pay attention to this, it’s important.’ Then I thought, ‘Well, I’m going to pay attention to it because I believe in the Constitution, and [this question] hasn’t been getting enough attention.”
The Trump campaign dismissed it as an “absurd conspiracy theory.”
“Joe Biden, Democrats, and Never Trumpers are scared to death because they see the polls showing President Trump winning in the general election,” said Trump’s spokesman Steven Cheung. “The people who are pushing this political attack on President Trump are stretching the law beyond recognition, much like the political prosecutors in New York, Georgia, and D.C. There is no legal basis for this effort except in the minds of those who are pushing it.”
Messner said he believes the question of Trump’s eligibility should be addressed sooner rather than later for the sake of the Republican Party.
“If I were Donald Trump or his supporters who say he did not violate Section 3, they should want to want to get in front of the U.S. Supreme Court as soon as possible,” Messner said. “Whatever the answer is, you don’t want to get blindsided later on.”
Messner says he has heard from some Trump supporters who hate what he is doing, and from some anti-Trump folks who are fans (“Some even want to give me money to take this to other states.”) But despite rumors circling among MAGA Republicans in the Granite State, one person he has not heard from is Sununu.
“I’ve had no direct or indirect communication with Chris about this. None. Zero.”
Some far-right Republicans who have long been frustrated with Sununu’s outspoken criticism of Trump suspect he must be behind the effort to block the former president’s name from the ballot. However, according to Sununu spokesperson Ben Vihstadt, Sununu does not expect Trump to face any trouble getting on the New Hampshire ballot.
“The governor first heard about this effort just yesterday,” Vihstadt told NHJournal Sunday. “The governor is not making any attempt or assisting any effort to keep anyone off the ballot. He has not spoken to and has nothing to do with Mr. Messner’s actions.
“Providing he follows the same rules as all other candidates, the Governor doesn’t expect ballot access will be a problem for the former president,” Vihstadt said.
Ager, who as state party chair is decidedly neutral in the GOP primary, opposes the push to block Trump.
“Efforts to deny New Hampshire Republican Primary voters a full slate of options are antithetical to our ‘Live Free or Die’ tradition. The State Republican Party will fight all efforts to eliminate candidates from our Primary ballot,” Ager said. “I have confidence in our secretary of state and attorney general to make the right decisions. Let voters choose who they want as our nominee, not a weaponized Justice system using tortured logic. Let the people decide.”
Scanlan is involved because, as the state’s top election regulator, he has the power under Section 3 to declare Trump a participant in an insurrection and ineligible to serve — which, in turn, would keep Trump off the ballot. But Scanlan has made it clear he will not be the arbitrary arbiter of such an important decision.
Scanlan, who confirmed to NHJournal that he met with Messner on Friday, said, “While I am not the one raising the objections under Article 14, I will be the one who may have to rule on any objections made. For this reason, I will be seeking input from the attorney general and others so I better understand the legal issues that are involved.”
For many Trump supporters, the entire concept is a farce. They say the January 6, 2021, U.S. Capitol riot wasn’t an “insurrection,” and some note that, even if you believe it was, Trump is not charged with such a crime. They see yet another example of “weaponizing the justice system” to target a Republican.
“Which media genius determined Trump supported an insurrection,” asked Trump ally Corey Lewandowski. “The same ones who won Pulitzers for the ‘Fake Russian Hoax’ story?”
Some prominent legal scholars have also questioned the application of Section 3 to Trump. Professor Richard Epstein of the University of Chicago and the Hoover Institution is a harsh critic of Trump’s behavior on January 6 and in the days after the 2020 election. But he said Trump’s behavior, based on the premise that he had someone been wronged in the election process, could be found to be illegal, but “I don’t think Trump’s actions count as an armed insurrection or an open revolt. It’s not an effort to defy the process; it’s an effort to take it over.”
“I regard these charges as stunningly weak overall,” Epstein added.