Day: December 20, 2023

WASHINGTON — The Colorado voters who sought to disqualify Donald Trump from the state’s 2024 Republican primary ballot ran the table on eight distinct legal issues on Tuesday. To ultimately keep him off the ballot, though, they almost certainly will have to do so again — in the U.S. Supreme Court.

In a 4-3 decision that set off a political and legal earthquake, the Colorado Supreme Court said that Trump had engaged in insurrection and therefore was barred by the 14th Amendment from holding federal office.

“This is a major and extraordinary holding from a state supreme court,” Derek Muller, a law professor at the University of Notre Dame, wrote on the Election Law Blog. “Never in history has a presidential candidate been excluded from the ballot under Section 3 of the Fourteenth Amendment. United States Supreme Court review seems inevitable, and it exerts major pressure on the court.”

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The majority on Tuesday said every key legal issue came out against Trump.

“The sum of these parts is this: President Trump is disqualified from holding the office of president,” the majority said in an unsigned opinion, saying that his efforts to overturn the 2020 election results amounted to engaging in an insurrection and that Section 3 of the 14th Amendment, ratified after the Civil War, bars insurrectionists from federal office, including the presidency.

The majority added: “We do not reach these conclusions lightly. We are mindful of the magnitude and weight of the questions now before us. We are likewise mindful of our solemn duty to apply the law, without fear or favor, and without being swayed by public reaction to the decisions that the law mandates we reach.”

But the court gave Trump a provisional escape route. It put its ruling on hold through Jan. 4, and if he seeks review in the U.S. Supreme Court, as he said he will, the state court said his name would remain on the primary ballot.

It could take some time for the justices to act, and the Colorado Republican primary, scheduled for March, could proceed unaffected. The justices may have to grapple with the case’s many interlocking legal issues, which are novel, complex and extraordinarily consequential. Indeed, courts in other states have come to differing conclusions on some of the questions.

The justices may also be reluctant to withdraw from the voters the decision of how to assess Trump’s conduct after the 2020 election.

Section 3 of the 14th Amendment bars those who had taken an oath “to support the Constitution of the United States” from holding office if they then “shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”

Congress can remove the prohibition, the provision says, but only by a two-thirds vote in each chamber.

Though the provision was devised to address the aftermath of the Civil War, it was written in general terms and, most scholars say, continues to have force. Congress granted broad amnesties in 1872 and 1898. But those acts were retrospective, scholars say, and did not limit Section 3’s prospective force.

A Colorado trial judge had ruled that Trump had engaged in insurrection but accepted his argument that Section 3 did not apply to him, reasoning that Trump had not sworn the right kind of oath that the provision did not apply to the office of the presidency.

The Colorado Supreme Court affirmed the first part of the trial judge’s ruling — that Trump engaged in an insurrection, including by setting out to overturn the result of the 2020 presidential election; trying to alter vote counts; encouraging bogus slates of competing electors; pressuring the vice president to violate the Constitution; and calling for the march on the Capitol.

But the majority reversed the part of the trial judge’s decision that said the Section 3 provision did not bar Trump from seeking reelection.

That view has its critics. In an opinion piece published in The Wall Street Journal in September, Michael B. Mukasey, who served as attorney general under President George W. Bush, wrote that Section 3 is limited to people who had taken an oath to support the Constitution “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.”

The only category that even arguably applies to Trump is “an officer of the United States,” Mukasey wrote. But that phrase, he asserted, “refers only to appointed officials, not to elected ones.”

In a law review article first published in August, William Baude of the University of Chicago and Michael Stokes Paulsen of the University of St. Thomas, disagree with Mukasey.

Their article concluded that “the ordinary sense of the text” of the Constitution, “the structure and logic of its provisions,” “the evident design to be comprehensive,” “the seeming absurdity of the prospect of exclusion of the offices of president and vice president from triggering the disqualification” and other factors “all convince us that the natural conclusion is the correct one: Section 3 includes in its coverage, or ‘triggering’ language, insurrectionists who once served as president and vice president.”

They added that “a reading that renders the document a ‘secret code’ loaded with hidden meanings discernible only by a select priesthood of illuminati is generally an unlikely one.”

Other scholars, notably Josh Blackman of South Texas College of Law Houston and Seth Barrett Tillman of Maynooth University in Ireland, say that Section 3 does not cover Trump. There is, they wrote, “substantial evidence that the president is not an ‘officer of the United States’ for purposes of Section 3.”

The Colorado Supreme Court ruled that the presidency is covered by the provision. “President Trump asks us to hold that Section 3 disqualifies every oath-breaking insurrectionist except the most powerful one and that it bars oath breakers from virtually every office, both state and federal, except the highest one in the land. Both results are inconsistent with the plain language and history of Section 3.”

The state Supreme Court addressed several other issues. Congress does not need to act to disqualify candidates, it said. Trump’s eligibility is not the sort of political question that is outside the competence of courts. The House’s Jan. 6 report was properly admitted into evidence. Trump’s speech that day was not protected by the First Amendment, it said.

The court added that states are authorized under the Constitution to assess the qualifications of presidential candidates. “Were we to adopt President Trump’s view,” the majority wrote, “Colorado could not exclude from the ballot even candidates who plainly do not satisfy the age, residency and citizenship requirements” of the Constitution.

The case reminded some election law scholars of Bush v. Gore, the 2000 decision that handed the presidency to Bush.

“Once again the Supreme Court is being thrust into the center of a U.S. presidential election,” said Richard L. Hasen, a law professor at the University of California, Los Angeles. “But, unlike in 2000, the general political instability in the United States makes the situation now much more precarious.”

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It was in early October when Donald Trump first started using anti-immigrant rhetoric that echoed Hitler’s “Mein Kampf.” The former president told a conservative outlet, in reference to migrants entering the United States, “Nobody has any idea where these people are coming from. … It’s poisoning the blood of our country.”

The rhetoric, not surprisingly, sparked immediate pushback, but the Republican front-runner, confident that the GOP base would embrace such rhetoric, quickly added the phrasing to his repertoire. Indeed, he spent the weekend repeating the line, both at rallies and by way of his social media platform.

Trump apparently came to realize that he was echoing notorious fascists, so at his last Iowa rally, the former president offered new reassurances. NBC News reported:

Former President Donald Trump on Tuesday doubled down on his widely criticized comments about immigration by suggesting that people crossing the border illegally into the United States are “destroying the blood of our country.” … Trump brushed off the comparison to Hitler during Tuesday’s event in Iowa, saying that he “never read Mein Kampf,” and that Hitler made the comment “in a much different way.”

The way the candidate delivered the line, he apparently thought his audience would feel better about him using Nazi-like rhetoric if he dismissed the idea that he’d read Hitler’s book.

There are a few angles to this that are worth keeping in mind.

First, it’s very easy to believe that Trump hasn’t read “Mein Kampf,” given that the former president isn’t much of a reader. I’m hard-pressed to imagine him reading any book from cover to cover. But it’s also irrelevant: Nearly a century later, it’s not difficult to know the core elements of the book without having read it.

Indeed, Trump apparently has some familiarity with the text: He told his Iowa audience that when Hitler referenced immigrants poisoning German blood, the monster made the comment “in a much different way” — suggesting some familiarity with the text.

Second, in 1990, Trump told Vanity Fair his “friend Marty Davis from Paramount who gave me a copy of Mein Kampf, and he’s a Jew,” adding that his friend thought he’d find it “interesting.” (For his part, Davis said he wasn’t Jewish and he’d given Trump a book about Hitler, not “Mein Kampf.”)

But even if we put those relevant details aside, let’s not miss the forest for the trees. As 2023 comes to a close, American politics has reached the point at which the Republican Party’s likely presidential nominee echoes Adolf Hitler with such frequency that he felt the need to deny publicly that he’d read “Mein Kampf.”

This is where we find ourselves as a nation. This is what the GOP has come to.

Not to put too fine a point on this, but when an American presidential candidate finds it necessary to tell the public that he hasn’t read Hitler’s book, that ought to be a flashing red light that there’s something fundamentally wrong with his candidacy for national office.

It was roughly 24 hours ago when Senate Majority Leader Chuck Schumer spoke on the chamber’s floor about what the final steps members would take before leaving for the holidays. Near the top of the list: Confirming the remaining military nominees who’d been subjected to Republican Sen. Tommy Tuberville’s blockade.

“We’re not quite done yet,” the New York Democrat said. “There are still 11 nominees that are awaiting confirmation. We will not leave town until every last one of these delayed nominees is finally confirmed. I hope we can do so quickly.”

Soon after, the far-right Alabaman, who largely abandoned his radical scheme a couple of weeks ago, suggested to Politico that he was prepared to drop the remainder of his holds. By the end of the day, Tuberville’s blockade was finally and completely over. NBC News reported:

The Senate on Tuesday unanimously confirmed the remaining service members whose promotions had been held up by Sen. Tommy Tuberville as part of his protest against the Defense Department’s abortion policy. “These 11 flag officers have now been approved, joining the rest of their colleagues who we approved a few weeks ago. That’s good news,” said Majority Leader Chuck Schumer, D-N.Y., on the Senate floor.

When the Alabama Republican backed off his blockade earlier this month, he narrowed the focus of his tactic: Tuberville said he would only maintain holds on military officers up for four-star positions. It was never altogether clear why, exactly, he wanted to delay these highly decorated servicemembers, but the GOP senator apparently thought he might be able to leverage their nominations for some kind of concessions.

That didn’t happen.

Indeed, as the entire fiasco comes to an ignominious end, this remains one of the most important takeaways of the unnecessary ordeal: Tuberville spent 10 months undermining his own country’s armed forces, and he has nothing to show for it.

In early December, the Republican was asked whether he had any regrets. “It was pretty much a draw,” Tuberville said. “I mean, they didn’t get what they wanted. We didn’t get what we wanted.”

That didn’t make any sense. The whole point of Tuberville’s tantrum was opposition to the Pentagon providing travel reimbursements to U.S. troops who need reproductive care in red states. The GOP lawmaker said he’d continue to hurt the military until the Pentagon changed its policy.

The Pentagon never changed its policy. On the contrary, the Defense Department refused to pay a ransom, and Tuberville ultimately backed down. “Draw” isn’t the first word that comes to mind.

As the dust settles on the debacle, some might want to see this as an all’s-well-that-ends-well story, but it’s not. For one thing, it’s going to take time for the armed forces to recover from the effects of Tuberville’s blockade.

But reiterating a point we discussed a couple of weeks ago, no one should be surprised if there are lasting effects for Tuberville personally. The Alabama Republican’s reputation on Capitol Hill wasn’t great headed in 2023, and after spending a year hurting the U.S. military during international crises, he shouldn’t expect to end up on any “Most Respected Members of Congress” lists anytime soon.

Indeed, it was just last month when several Senate Republicans decided they’d seen enough of Tuberville’s blockade, and they publicly accused the coach-turned-politician of, among other things, being dishonest, damaging the military during international crises, assisting U.S. adversaries abroad, and relying on tactics that were “ridiculous” and “dumb.”

Or put another way, the Alabaman didn’t just needlessly hurt the military, he also did lasting harm to his own credibility and stature, in exchange for nothing.

For his part, when President Joe Biden issued a written statement celebrating the end of the blockade, the Democrat said, “In the end, this was all pointless. Senator Tuberville, and the Republicans who stood with him, needlessly hurt hundreds of servicemembers and military families and threatened our national security — all to push a partisan agenda. I hope no one forgets what he did.”

This post updates our related earlier coverage.

DENVER (AP) — A divided Colorado Supreme Court on Tuesday declared former President Donald Trump ineligible for the White House under the U.S. Constitution’s insurrection clause and removed him from the state’s presidential primary ballot, setting up a likely showdown in the nation’s highest court to decide whether the front-runner for the GOP nomination can remain in the race.

The decision from a court whose justices were all appointed by Democratic governors marks the first time in history that Section 3 of the 14th Amendment has been used to disqualify a presidential candidate.

“A majority of the court holds that Trump is disqualified from holding the office of president under Section 3 of the 14th Amendment,” the court wrote in its 4-3 decision.

Colorado’s highest court overturned a ruling from a district court judge who found that Trump incited an insurrection for his role in the Jan. 6, 2021, attack on the Capitol, but said he could not be barred from the ballot because it was unclear that the provision was intended to cover the presidency.

The court stayed its decision until Jan. 4, or until the U.S. Supreme Court rules on the case. Colorado officials say the issue must be settled by Jan. 5, the deadline for the state to print its presidential primary ballots.

“We do not reach these conclusions lightly,” wrote the court’s majority. “We are mindful of the magnitude and weight of the questions now before us. We are likewise mindful of our solemn duty to apply the law, without fear or favor, and without being swayed by public reaction to the decisions that the law mandates we reach.”

Trump’s attorneys had promised to appeal any disqualification immediately to the nation’s highest court, which has the final say about constitutional matters.

Trump’s legal spokeswoman Alina Habba said in a statement Tuesday night: “This ruling, issued by the Colorado Supreme Court, attacks the very heart of this nation’s democracy. It will not stand, and we trust that the Supreme Court will reverse this unconstitutional order.”

Trump didn’t mention the decision during a rally Tuesday evening in Waterloo, Iowa, but his campaign sent out a fundraising email citing what it called a “tyrannical ruling.”

Republican National Committee chairwoman Ronna McDaniel labeled the decision “Election interference” and said the RNC’s legal team intends to help Trump fight the ruling.

Trump lost Colorado by 13 percentage points in 2020 and doesn’t need the state to win next year’s presidential election. But the danger for the former president is that more courts and election officials will follow Colorado’s lead and exclude Trump from must-win states.

Dozens of lawsuits have been filed nationally to disqualify Trump under Section 3, which was designed to keep former Confederates from returning to government after the Civil War. It bars from office anyone who swore an oath to “support” the Constitution and then “engaged in insurrection or rebellion” against it, and has been used only a handful of times since the decade after the Civil War.

“I think it may embolden other state courts or secretaries to act now that the bandage has been ripped off,” Derek Muller, a Notre Dame law professor who has closely followed the Section 3 cases, said after Tuesday’s ruling. “This is a major threat to Trump’s candidacy.”

The Colorado case is the first where the plaintiffs succeeded. After a weeklong hearing in November, District Judge Sarah B. Wallace found that Trump indeed had “engaged in insurrection” by inciting the Jan. 6 attack on the Capitol, and her ruling that kept him on the ballot was a fairly technical one.

Trump’s attorneys convinced Wallace that, because the language in Section 3 refers to “officers of the United States” who take an oath to “support” the Constitution, it must not apply to the president, who is not included as an “officer of the United States” elsewhere in the document and whose oath is to “preserve, protect and defend” the Constitution.

The provision also says offices covered include senator, representative, electors of the president and vice president, and all others “under the United States,” but doesn’t name the presidency.

The state’s highest court didn’t agree, siding with attorneys for six Colorado Republican and unaffiliated voters who argued that it was nonsensical to imagine that the framers of the amendment, fearful of former confederates returning to power, would bar them from low-level offices but not the highest one in the land.

“President Trump asks us to hold that Section 3 disqualifies every oathbreaking insurrectionist except the most powerful one and that it bars oath-breakers from virtually every office, both state and federal, except the highest one in the land,” the court’s majority opinion said. “Both results are inconsistent with the plain language and history of Section 3.”

The left-leaning group that brought the Colorado case, Citizens for Responsibility and Ethics in Washington, hailed the ruling.

“Our Constitution clearly states that those who violate their oath by attacking our democracy are barred from serving in government,” its president, Noah Bookbinder, said in a statement.

Trump’s attorneys also had urged the Colorado high court to reverse Wallace’s ruling that Trump incited the Jan. 6 attack. His lawyers argued the then-president had simply been using his free speech rights and hadn’t called for violence. Trump attorney Scott Gessler also argued the attack was more of a “riot” than an insurrection.

That met skepticism from several of the justices.

“Why isn’t it enough that a violent mob breached the Capitol when Congress was performing a core constitutional function?” Justice William W. Hood III said during the Dec. 6 arguments. “In some ways, that seems like a poster child for insurrection.”

In the ruling issued Tuesday, the court’s majority dismissed the arguments that Trump wasn’t responsible for his supporters’ violent attack, which was intended to halt Congress’ certification of the presidential vote: “President Trump then gave a speech in which he literally exhorted his supporters to fight at the Capitol,” they wrote.

Colorado Supreme Court Justices Richard L. Gabriel, Melissa Hart, Monica Márquez and Hood ruled for the petitioners. Chief Justice Brian D. Boatright dissented, arguing the constitutional questions were too complex to be solved in a state hearing. Justices Maria E. Berkenkotter and Carlos Samour also dissented.

“Our government cannot deprive someone of the right to hold public office without due process of law,” Samour wrote in his dissent. “Even if we are convinced that a candidate committed horrible acts in the past — dare I say, engaged in insurrection — there must be procedural due process before we can declare that individual disqualified from holding public office.”

The Colorado ruling stands in contrast with the Minnesota Supreme Court, which last month decided that the state party can put anyone it wants on its primary ballot. It dismissed a Section 3 lawsuit but said the plaintiffs could try again during the general election.

In another 14th Amendment case, a Michigan judge ruled that Congress, not the judiciary, should decide whether Trump can stay on the ballot. That ruling is being appealed. The liberal group behind those cases, Free Speech For People, also filed another lawsuit in Oregon seeking to bounce Trump from the ballot there.

Both groups are financed by liberal donors who also support President Joe Biden. Trump has blamed the president for the lawsuits against him, even though Biden has no role in them, saying his rival is “defacing the constitution” to try to end his campaign.

Trump’s allies rushed to his defense, slamming the decision as “un-American” and “insane” and part of a politically-motivated effort to destroy his candidacy.

“Four partisan Democrat operatives on the Colorado Supreme Court think they get to decide for all Coloradans and Americans the next presidential election,” House Republican Conference Chair Elise Stefanik said in a statement.

___

Associated Press writer Jill Colvin in New York contributed to this report.

The only question is whether American citizens today can uphold that commitment.

By J. Michael Luttig and Laurence H. Tribe

Illustration by Jared Bartman / The Atlantic. Sources: Chip Somodevilla / Getty; U.S. National Archives and Records Administration.

As students of the United States Constitution for many decades—one of us as a U.S. Court of Appeals judge, the other as a professor of constitutional law, and both as constitutional advocates, scholars, and practitioners—we long ago came to the conclusion that the Fourteenth Amendment, the amendment ratified in 1868 that represents our nation’s second founding and a new birth of freedom, contains within it a protection against the dissolution of the republic by a treasonous president.

This protection, embodied in the amendment’s often-overlooked Section 3, automatically excludes from future office and position of power in the United States government—and also from any equivalent office and position of power in the sovereign states and their subdivisions—any person who has taken an oath to support and defend our Constitution and thereafter rebels against that sacred charter, either through overt insurrection or by giving aid or comfort to the Constitution’s enemies.

The historically unprecedented federal and state indictments of former President Donald Trump have prompted many to ask whether his conviction pursuant to any or all of these indictments would be either necessary or sufficient to deny him the office of the presidency in 2024.

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Having thought long and deeply about the text, history, and purpose of the Fourteenth Amendment’s disqualification clause for much of our professional careers, both of us concluded some years ago that, in fact, a conviction would be beside the point. The disqualification clause operates independently of any such criminal proceedings and, indeed, also independently of impeachment proceedings and of congressional legislation. The clause was designed to operate directly and immediately upon those who betray their oaths to the Constitution, whether by taking up arms to overturn our government or by waging war on our government by attempting to overturn a presidential election through a bloodless coup.

The former president’s efforts to overturn the 2020 presidential election, and the resulting attack on the U.S. Capitol, place him squarely within the ambit of the disqualification clause, and he is therefore ineligible to serve as president ever again. The most pressing constitutional question facing our country at this moment, then, is whether we will abide by this clear command of the Fourteenth Amendment’s disqualification clause.

We were immensely gratified to see that a richly researched article soon to be published in an academic journal has recently come to the same conclusion that we had and is attracting well-deserved attention outside a small circle of scholars—including Jeffrey Sonnenfeld and Anjani Jain of the Yale School of Management, whose encouragement inspired us to write this piece. The evidence laid out by the legal scholars William Baude and Michael Stokes Paulsen in “The Sweep and Force of Section Three,” available as a preprint, is momentous. Sooner or later, it will influence, if not determine, the course of American constitutional history—and American history itself.

Written with precision and thoroughness, the article makes the compelling case that the relevance of Section 3 did not lapse with the passing of the generation of Confederate rebels, whose treasonous designs for the country inspired the provision; that the provision was not and could not have been repealed by the Amnesty Act of 1872 or by subsequent legislative enactments; and that Section 3 has not been relegated by any judicial precedent to a mere source of potential legislative authority, but continues to this day by its own force to automatically render ineligible for future public office all “former office holders who then participate in insurrection or rebellion,” as Baude and Paulsen put it.

Among the profound conclusions that follow are that all officials who ever swore to support the Constitution—as every officer, state or federal, in every branch of government, must—and who thereafter either “engaged in insurrection or rebellion” against the Constitution or gave “aid and comfort to the enemies” of that Constitution (and not just of the United States as a sovereign nation) are automatically disqualified from holding future office and must therefore be barred from election to any office.

Regardless of partisan leaning or training in the law, all U.S. citizens should read and consider these two simple sentences from Section 3:

The Fourteenth Amendment was promulgated and ratified in the context of postbellum America when, even after losing the Civil War, southern states were sending men to Congress who had held prominent roles in the Confederacy or otherwise supported acts of rebellion or insurrection against the United States.

The two of us have long believed, and Baude and Paulsen have now convincingly demonstrated, that notwithstanding its specific historical origin, Section 3 is no anachronism or relic from the past; rather, it applies with the same force and effect today as it did the day it was ratified—as does every other provision, clause, and word of the Constitution that has not been repealed or revised by amendment.

Baude and Paulsen also conclude that Section 3 requires no legislation, criminal conviction, or other judicial action in order to effectuate its command. That is, Section 3 is “self-executing.” (Other scholars have relied on Chief Justice Salmon P. Chase’s poorly reasoned opinion in an 1869 case called In Re Griffin to support the contrary view. Baude and Paulsen decisively dismantle Griffin as a precedent.)

They conclude further that disqualification pursuant to Section 3 is not a punishment or a deprivation of any “liberty” or “right” inasmuch as one who fails to satisfy the Constitution’s qualifications does not have a constitutional “right” or “entitlement” to serve in a public office, much less the presidency. (For that reason, they argue that the section, although it does not entirely override preexisting limits on governmental power, such as the First Amendment’s ban on abridgments of the freedom of speech, powerfully affects their application.) Finally, the authors conclude that Section 3 is “expansive and encompassing” in what it regards as “insurrection or rebellion” against the constitutional order and “aid and comfort to the enemies” of the United States.

Baude and Paulsen are two of the most prominent conservative constitutional scholars in America, and both are affiliated with the Federalist Society, making it more difficult for them to be dismissed as political partisans. Thus it is all the more significant and sobering that they do not hesitate to draw from their long study of the Fourteenth Amendment’s text and history the shattering conclusion that the attempted overturning of the 2020 presidential election and the attack on the Capitol, intended to prevent the joint session from counting the electoral votes for the presidency, together can be fairly characterized as an “insurrection” or “rebellion.” They write:

At the time of the January 6 attack, most Democrats and key Republicans described it as an insurrection for which Trump bore responsibility. We believe that any disinterested observer who witnessed that bloody assault on the temple of our democracy, and anyone who learns about the many failed schemes to bloodlessly overturn the election before that, would have to come to the same conclusion. The only intellectually honest way to disagree is not to deny that the event is what the Constitution refers to as “insurrection” or “rebellion,” but to deny that the insurrection or rebellion matters. Such is to treat the Constitution of the United States as unworthy of preservation and protection.

Baude and Paulsen embrace the “idea that men and women who swore an oath to support the Constitution as government officials, but who betrayed that oath by engaging in or abetting acts of insurrection or rebellion against the United States, should be disqualified from important positions of government power in the future (unless forgiven by supermajorities of both houses of Congress).” To them, as to us, this will forever “remain a valid, valuable,” and “vital precept” for America.

Section 3’s disqualification clause has by no means outlived its contemplated necessity, nor will it ever, as the post–Civil War Framers presciently foresaw. To the contrary, this provision of our Constitution continues to protect the republic from those bent on its dissolution. Every official who takes an oath to uphold the Constitution, as Article VI provides every public official must, is obligated to enforce this very provision.

The Baude-Paulsen article has already inspired a national debate over its correctness and implications for the former president. The former federal judge and Stanford law professor Michael McConnell cautions that “we are talking about empowering partisan politicians such as state Secretaries of State to disqualify their political opponents from the ballot … If abused, this is profoundly anti-democratic.” He also believes, as we do, that insurrection and rebellion are “demanding terms, connoting only the most serious of uprisings against the government,” and that Section 3 “should not be defined down to include mere riots or civil disturbances.” McConnell worries that broad definitions of insurrection and rebellion, with the “lack of concern about enforcement procedure … could empower partisans to seek disqualification every time a politician supports or speaks in support of the objectives of a political riot.”

We share these concerns, and we concur that the answer to them lies in the wisdom of judicial decisions as to what constitutes “insurrection,” “rebellion,” or “aid or comfort to the enemies” of the Constitution under Section 3.

As a practical matter, the processes of adversary hearing and appeal will be invoked almost immediately upon the execution and enforcement of Section 3 by a responsible election officer—or, for that matter, upon the failure to enforce Section 3 as required. When a secretary of state or other state official charged with the responsibility of approving the placement of a candidate’s name on an official ballot either disqualifies Trump from appearing on a ballot or declares him eligible, that determination will assuredly be challenged in court by someone with the standing to do so, whether another candidate or an eligible voter in the relevant jurisdiction. Given the urgent importance of the question, such a case will inevitably land before the Supreme Court, where it will in turn test the judiciary’s ability to disentangle constitutional interpretation from political temptation. (Additionally, with or without court action, the second sentence of Section 3 contains a protection against abuse of this extraordinary power by these elections officers: Congress’s ability to remove an egregious disqualification by a supermajority of each House.)

The entire process, with all its sometimes frail but thus far essentially effective constitutional guardrails, will frame the effort to determine whether the threshold of “insurrection” or “rebellion” was reached and which officials, executive or legislative, were responsible for the January 6 insurrection and the broader efforts to reverse the election’s results.

The process that will play out over the coming year could give rise to momentary social unrest and even violence. But so could the failure to engage in this constitutionally mandated process. For our part, we would pray for neither unrest nor violence from the American people during a process of faithful application and enforcement of their Constitution.

If Donald Trump were to be reelected, how could any citizen trust that he would uphold the oath of office he would take upon his inauguration? As recently as last December, the former president posted on Truth Social his persistent view that the last presidential election was a “Massive Fraud,” one that “allows for the termination of all rules, regulations, and articles, even those found in the Constitution.”

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No person who sought to overthrow our Constitution and thereafter declared that it should be “terminated” and that he be immediately returned to the presidency can in good faith take the oath that Article II, Section 1 demands of any president-elect “before he enter on the Execution of his Office.”

We will not attempt to express this constitutional injunction better than did George Washington himself in his “Farewell Address” to the nation, in 1796:

Our first president may well have been our most prescient. His fears about “cunning, ambitious, and unprincipled men” have, over the centuries, proved all too well founded. But his even stronger hopes for the republic were not misplaced. Still today, the Constitution, through its Reconstruction Amendments, contains a safeguard that it originally lacked—a safeguard against the undermining of our constitutional democracy and the rule of law at the hands of those whose lust for power knows no bounds.

The men who framed and ratified the Fourteenth Amendment entrusted to us, “the People of the United States,” the means to vigilantly protect against those who would make a mockery of American democracy, the Constitution, the rule of law—and of America itself. It fell to the generations that followed to enforce our hallowed Constitution and ensure that our Union endures. Today, that responsibility falls to us.

Under the Fourteenth Amendment’s Insurrectionist Disqualification Clause, Trump’s incitement of the January 6th insurrection bars him from holding public office.

BOSTON, MA (July 12, 2023) – Free Speech For People (FSFP) and Mi Familia Vota Education Fund (MFVEF) issued letters today to Secretaries of State and chief election officials in nine states, urging them to abide by the US Constitution and bar former President Donald Trump from the ballot. According to Section 3 of the Fourteenth Amendment, also known as the Insurrectionist Disqualification Clause, by swearing an oath to uphold the Constitution and subsequently inciting and facilitating the violent January 6th attack on the Capitol, Trump is ineligible to run for office again.

Free Speech For People and Mi Familia Vota Education Fund sent letters to Oregon Secretary of State LaVonne Griffin-Valade, California Secretary of State Shirley Weber, Massachusetts Secretary of the Commonwealth William Francis Galvin, Colorado Secretary of State Jena Griswold, Michigan Secretary of State Jocelyn Benson, New York State Board of Elections Co-Chairs Peter Kosinski and Douglas Kellner, members of the North Carolina State Board of Elections, Georgia Secretary of State Brad Raffensperger, and Pennsylvania Secretary of the Commonwealth Al Schmidt. The organizations delivered a similar letter to Nevada Secretary of State Cisco Aguilar in early April.

Enacted in the wake of the Civil War, Section 3 of the Fourteenth Amendment disqualifies from public office, regardless of a prior criminal conviction, any individual who has taken an oath to uphold the U.S. Constitution and then engages in insurrection or rebellion against the United States, or gives aid or comfort to its enemies. Trump’s involvement in the violent attack on Congress to prevent the certification of democratic election results disqualifies him from holding any future public office.

“[S]ince 1868, the qualifications for eligibility for the presidency—in addition to natural-born citizenship, age, and residency—have also included not having engaged in insurrection against the United States after having taken an oath to support the Constitution,” the letters read. “And Trump does not meet that qualification.”

FSFP and MFVEF also argue that state election officials have the power to enforce the Insurrectionist Disqualification Clause without express permission from Congress. They note that nothing in the text, original public meaning, or the Reconstruction-era history of Section 3’s implementation suggests that states need authorization from Congress to implement this part of the Constitution. During Reconstruction, states repeatedly enforced Section 3 in exactly that circumstance, and two different states (Georgia and New Mexico) heard Section 3 challenges against those involved in the January 6th insurrection in 2022. These challenges did not need any special federal legislation, relying on standard state legal procedures for challenging a politician’s constitutional eligibility for office.

“While the US Justice Department, along with state and local authorities, must hold Donald Trump accountable for all crimes that he has committed, secretaries of state and chief election officials across the country must carry out their responsibility to follow the mandate of the Constitution and the Insurrectionist Disqualification Clause and bar Trump from any future ballot,” said Free Speech For People President John Bonifaz. “Criminal prosecutions will establish Trump’s liability under the law. But the enforcement of Section 3 of the Fourteenth Amendment against Trump will ensure that our republic is protected and that this insurrectionist-in-chief is forever disqualified from holding any future public office.”

“The evidence is overwhelming that Donald Trump incited and mobilized the insurrection on January 6, 2021 at our nation’s Capitol,” said Alexandra Flores-Quilty, Campaign Director for Free Speech For People. “The US Constitution is clear that anyone who takes an oath of office and then engages in insurrection is forever barred from holding public office again. Election officials must carry out their duty, follow this constitutional mandate, and bar Trump from the ballot.”

Irving Zavaleta, Mi Familia Vota National Programs Manager said:  “Secretaries of State and state election officials are well within their authority to bar former President Donald Trump from the ballot. We all know that Donald Trump incited an insurrection to stop the certification of the 2020 election. Under Section Three of the Fourteenth Amendment, anyone who has taken the oath of office to defend the Constitution and then engages in an insurrection is disqualified from holding future public office. Trump is disqualified, and we strongly urge election officials to bar him from the ballot.” 

Free Speech For People has called for applying the Insurrectionist Disqualification Clause to Donald Trump since June 2021. The organization, in partnership with Mi Familia Vota Education Fund, launched the Trump is Disqualified campaign following Trump’s announcement of his 2024 presidential bid in November 2022. Click here for more information on the campaign.

Read the letters here.