*Over the years I have had the privilege of reprinting for publication many informative and insightful articles written by our distinguished interviewee today, John F. Banzhaf III, B.S.E.E., J.D., Sc.D.
John Banzhaf is a professor of public interest law emeritus at the George Washington University Law School. Although best known for founding a renowned anti-smoking advocacy group, his public interest successes in the field of government include helping to obtain special prosecutors for former president Richard Nixon and suing former vice president Spiro Agnew to get back the money he took in bribes. He also helped reform laws related to voting and copyrights; and filed ethical complaints against former congressman Barney Frank and vice-presidential candidate Geraldine Ferraro.
Most recently, he filed a formal complaint accusing former president Donald Trump of violating at least three laws. This triggered the current criminal investigation of Trump in Georgia.
Today’s Q & A topic is a question many voters have been asking: “Can former president Donald Trump be allowed to run for president again?” Amid all the blaring personal and political allegations he is facing, it would seem no way he could, but read on for Professor Banzhaf’s take on it.
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Q. How can a former president who (allegedly knowingly) made election fraud accusations, refused to publicly concede defeat of the 2020 election, and refused a peaceful transfer of power, even be qualified to run for office again?
A. The U.S. Constitution sets forth the very minimal standards or requirements for someone to be president – at least 35 years old, and a natural-born citizen who has lived in the U.S. for at least 14 years – and therefore to be qualified for the office. It’s clear that not even Congress, through legislation, can add to those requirements. Thus, even assuming that Trump was found guilty of various criminal charges, he could still run for and serve as president.
The argument would be that the voters get to choose the president (albeit through the clumsy Electoral College), and they can consider the extent to which even the most reprehensible acts should disqualify someone. This is true in general, which is why people have run for office even while sitting in a jail cell after having been convicted of a crime.
However, the Constitution – Section 3 of the 14th Amendment – provides: “No person…shall hold any [state or federal] office, who, having previously taken an oath, as [a state or federal officer] 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.” If someone has taken the oath of office – whether or not that person is currently in office – and later “engage[s] in insurrection or rebellion,” that person is constitutionally prohibited from holding any state or federal office in the present or future. While the law regarding that section is far from clear, it has been held, in at least one case, that an office seeker was disqualified for engaging in insurrection or rebellion. If Trump is convicted on such a charge, it would be up to the authorities to decide whether he would be disqualified from holding any federal office in the future.
Q. Given Trump’s financial crisis alone, could that prevent or disqualify him from obtaining a Top Secret clearance from the DOJ for being “at risk” for compromise? And what about illegally removing classified documents from the White House and storing them improperly in his private home? How can he be trusted to run for the Office of the President again?
A. The law seems clear that a president may declassify even the most secret of documents (although probably not just by thinking about it). It also appears that he can award himself whatever security clearance he wishes, despite any prior misdeeds, either directly or by ordering subordinates to award him the clearance. As president, he probably has the right to see any document, regardless of its classification, and/or his lack of security clearance.
Q. Why is the former president, under multiple investigations, being allowed to mislead his followers and create chaos in the election process?
A. The First Amendment, history, and well-established custom say that no one can NOT allow (i.e., disallow) a president, or a candidate for other public office, to mislead people and create confusion, except if he is under oath and subject to penalties for perjury. Otherwise, we would have a judge or other government official deciding whether a political statement is misleading. In short, a president is not like a pitchman for soap. The latter’s claims are subject to review, and to requirements of verifiable truth, by the FTC or others. But no agency, even including the Federal Election Commission, can review and censor the statements of a candidate for public office.
We thank you Professor Banzhaf for your law-based and constitutional-informed responses. People, democracy is the ship that holds America together. We see the signs that we’re on course for a shipwreck, and unless we use the power of our vote to change course, we are doomed for a catastrophe of titanic proportions.
JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law Emeritus
George Washington University Law School
“The Man Behind the Ban on Cigarette Commercials”
FAMRI Dr. William Cahan Distinguished Professor
Fellow, World Technology Network
Founder, Action on Smoking and Health (ASH)
Inventor of the “Banzhaf Index”
(202) 994-7229 // (703) 527-8418
https://banzhaf.net – @profbanzhaf
Larry Buford is a Los Angeles-based contributing writer. Author of “Things Are Gettin’ Outta Hand” and “Book To The Future” (Amazon). Email: [email protected]
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