Rule of Law

Trump’s fight to stay on 2024 election ballot threatens to turn Constitution’s insurrection clause into ‘historical ornament,’ experts say

More than two years after rioters stormed the U.S. Capitol and the tradition of America’s peaceful transfer of presidential power was broken, the question of whether the man at the center of that day — Donald Trump — should have his name on the ballot for the 2024 presidential race is looming larger than ever.

In the days ahead, a tug-of-war over this historic legal question is poised to grow more intense.

Over a dozen entities or individuals across the United States have filed lawsuits to strike Trump from the ballot by way of Section III of the Fourteenth Amendment – known simply as the Constitution’s insurrection clause. But out of the many plaintiffs who have filed complaints, two groups in two states appear to have the legal heft to go the distance and take the fight to the U.S. Supreme Court: Citizens for Responsibility and Ethics in Washington (CREW), which has filed in Colorado, and Free Speech for the People, which filed litigation in Minnesota.

Trump’s conduct on Jan. 6, such as his remarks from the Ellipse where he whipped supporters into a frenzy while regurgitating his by then months-old — and widely disproven — message that the 2020 election was “stolen” due to fraud, is just one aspect binding together these two respective bids to bump Trump from the ballot.

The groups point to Trump’s alleged intimidation of state legislatures, election officials, and workers as well his pressure campaign on then-Vice President Mike Pence to overturn the results during the congressional session to certify President Joe Biden’s electoral victory, despite having no legal authority to do so. The filings also note Trump’s refusal to call off the rioters for a span of nearly three hours, as well as his solicitations on social media for supporters to attend a “wild” rally protesting the so-called “rigged” election. And then there are Trump’s alleged schemes to subvert the election results — something he is also criminally indicted for in both the District of Columbia and Georgia — and how those efforts brought the congressional proceedings undergirding the transfer of power to a standstill for hours on Jan. 6.

Similarly, the groups respectively contend that while Trump himself did not “engage” in violence directly on Jan. 6, he never needed to in order to be disqualified under Section III.

“Indeed, Jefferson Davis, the president of the Confederacy, never fired a shot,” counsel for Free Speech for the People wrote in its petition to the Minnesota State Supreme Court.

Section III itself is written in plain enough language, and the force of its meaning seems clear: Anyone who takes an oath to uphold the Constitution and then later turns their back on it to engage in “insurrection or rebellion” or, importantly, to provide “aid or comfort” to its enemies, should be barred from holding office:

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.

As the Congressional Research Service explains in a 2022 report, Section III was written in the aftermath of the Civil War, but it’s still enforceable today. It is applicable even without a connection to actual warfare, and no prior criminal conviction is required to disqualify someone under it either. There are also no permissions needed from Congress by individual states to enforce the clause.

In its case, CREW represents six Republican voters from Colorado, plus one unaffiliated voter and a mix of former state, federal, and local officials, including a former state representative, a majority leader for the Colorado legislature, and a conservative columnist. They are suing Colorado Secretary of State Jena Griswold and Trump himself, whereas in Minnesota, the eight plaintiffs representing a diverse group of voters include a former Minnesota secretary of state, a former Minnesota Supreme Court justice, and a 22-year veteran of the Minnesota National Guard. They have not named Trump directly in the Minnesota petition; rather, they have demanded only that Minnesota Secretary of State Steve Simon stop Trump from appearing on the ballot.

Free Speech for the People has also joined forces with the Mi Familia Vota Education Fund for a campaign it dubs “Trump Is Disqualified.” It actively calls on secretaries of state and election officials to bar Trump — and any other elected official — from the ballot if they were involved in the uprising on Jan. 6.

None of the plaintiffs were available to comment while the cases are still ongoing, according to spokespeople for CREW and Free Speech for the People.

Both matters are on track to end up at the U.S. Supreme Court, and such an outcome would mark the very first time that the highest court in the land would issue a ruling on the applicability of Section III.

In the meantime, attorneys representing Trump have urgently pushed back on the litigation, arguing last week in a series of motions filed in the Colorado case that his removal from the ballot is a violation of his First Amendment rights and that the petitioners lack standing. Trump’s lawyers have indicated they will file a motion Friday in Colorado “focusing on the substance” of Section III of CREW’s petition. A hearing on that matter will then be held on Oct. 13, with Colorado 2nd Judicial District Judge Sarah Wallace presiding. On Oct. 30, another hearing will be held on the constitutionality of the case.

In Minnesota, oral arguments are not scheduled until Nov. 2, but there will be a flurry of motions on the docket before then. Per an order from Minnesota Supreme Court State Chief Justice Lorie Gildea, Free Speech for the People will have until Oct. 4 to file a brief addressing whether Section III is “self-executing,” if it “operates to preclude a person from being President of the United States,” and “whether… it applies to the person who has previously taken an oath as President of the United States.”

An Oct. 18 deadline is set for Trump and Minnesota Secretary of State Steve Simon to respond.

As for Colorado, under Trump’s free speech argument, which falls under that state’s anti-SLAPP laws, his attorneys have already claimed the quadruple-indicted former president is simply being targeted for ballot removal because of his unsavory speech, not because he actually “engaged in” a “purported insurrection.”

“To be sure, President Trump will separately seek dismissal of this case as a legal matter, because the Fourteenth Amendment applies to one who ‘engaged in insurrection or rebellion,’ not one who only ‘instigated’ any action,” lawyer Scott Gessler wrote in a filing dated Sept. 22.

And if Trump did “instigate” violence, Gessler argued, it wasn’t Trump’s intent. The former president’s attorneys also argue that since nary a Jan. 6 rioter has been charged and convicted under the federal rebellion statute, 18 U.S.C. 2383, there is no way Trump could have provided “aid or comfort” to insurrectionists as Section III describes them. Notably, however, more than a dozen Jan. 6 defendants have been convicted of seditious conspiracy, or the conspiracy to stop the government from exercising its official duties by force. Many of these same individuals have also laid blame directly at Trump’s feet for inspiring them to act violently on Jan. 6.

Trump, however, maintains his claims of a stolen election are “the epitome of public issues” and that his statements at the Ellipse were neither “explicit” nor “implied” calls for lawlessness. The use of the word “fight” in Trump’s speech on Jan. 6, which was uttered roughly two dozen times, was protected too because it was “metaphorical,” the motion to dismiss asserts. And in perhaps the boldest claim of all, the former president’s attorneys argue that Trump’s speech wasn’t even “likely to result, imminently, in lawless action.”

The House Select Committee to Investigate the Jan. 6 Attack on the U.S. Capitol did, however, obtain witness testimony that Trump knew many of his supporters were armed, and urged security to let them past metal detectors. Cassidy Hutchinson, a former White House aide to Trump’s then-Chief of Staff Mark Meadows, testified under oath last year that Trump wanted this to occur because it would speed things up and increase the size of the crowd.

“‘I don’t effing care if they have weapons… they’re not here to hurt me. Take the effing [magnometers] away. Let my people in. They can march to the Capitol from here,’” Hutchinson recalled Trump saying.

The committee also determined that in advance of Jan. 6, a large number of national security and intelligence officials warned senior White House officials, including Meadows, that the likelihood of violence was high and that Congress would be targeted.

Trump’s lawyers say that the Colorado petition, Jan. 6 free speech issues notwithstanding, is moot anyway because he is not an official candidate on the ballot since the Colorado state secretary has not certified any candidate yet. The Colorado petition lacks a “particularized” or “concrete” injury, Trump’s attorneys say.

The former president himself, meanwhile, has lashed out on his social media platform Truth Social, insisting in recent weeks that the law favors him and that “almost all legal scholars” would support his position that the Fourteenth Amendment has no bearing on his eligibility. In early September, he dubbed the lawsuit in Minnesota a “trick” used by “Radical Left Communists, Marxists, and Fascists” to interfere with his 2024 campaign.

His declaration that “almost all legal scholars” would support him in this fight is a broad claim and one that hasn’t been supported thus far in the bulk of public analysis streaming from legal and Constitutional experts, including commentary from prominent conservative voices.

In August, two law professors and members of the conservative Federalist Society, William Baude of the University of Chicago and Michael Paulsen of the University of St. Thomas, released a paper after researching the question of Trump and Section III for more than a year.

In sum, they concluded that the plain language of the clause disqualified Trump from being president, running for president, or holding any office and that the only way to overcome this barrier would be for a congressional supermajority to vote in favor of granting Trump amnesty for his role in what occurred on Jan. 6.

Baude and Paulsen seemed to have anticipated Trump’s arguments in Colorado about his speech on Jan. 6 being “metaphorical.” Some might “quibble” that the speech was “ambiguous,” the scholars wrote, but “nonetheless, the general and specific message was that the election had been stolen; that a constitutional fraud of colossal proportions and cataclysmic consequence was in the process of being perpetrated on the nation; that the crowd need to take ‘strong’ and direct action to protect the country; and that immediate action was necessary to prevent Vice President Pence and Congress from ratifying the unconstitutional election of an illegitimate president and doing irreparable harm to the nation.”

When the paper first emerged, Federalist Society co-founder Steven Calabresi, hailed its findings. Calabresi, a professor of law at Yale and Northwestern, was unequivocal, writing that “Trump is guilty of inciting an insurrection, even if he may not have meant to cause a rebellion.” Calabresi cited the plain meaning of the word “insurrection” as it is defined in the Dictionary of American English, and noted that an effort to keep Trump off the ballot after his conduct on Jan. 6 “does not deprive him of life, liberty, or property in the same way that a criminal or a civil jury verdict could.”

“It is a privilege to be eligible to run for President of the United States and that privilege does not extend to constitutional oath breakers who engage in ‘insurrection or rebellion against the same,’” Calabresi wrote.

Less than a month later, however, Calabresi changed his mind. He had read an opinion piece in the Wall Street Journal about Section III by Michael Mukasey, a former U.S. attorney general. Mukasey contends that Trump is not an “officer of the United States” as the statute defines it. Instead, he argues that the term “officer” in Section III only refers to “appointed officials” not elected ones.

Baude and Paulsen, whom Calabresi once heartily endorsed, researched that theory as well and came to the opposite conclusion: the structure, logic and plain meaning of the words of the provision would indeed affirm Trump is an officer of the United States, they found, and the prospect of excluding a U.S. president from the clause would be absurd.

Praveen Fernandes, constitutional expert and vice president of the Constitutional Accountability Center in Washington, D.C., told Law&Crime in a phone interview that he agreed.

“I think anyone who argues against the proposition that Section III of the Fourteenth Amendment applies to both the president as an officer and the presidency as an office, is swimming upstream,” Fernandes said. “You start with the text. There is no clear exclusion for the president in the text. Then you can look at the enactment history. The phrase ‘officer of the United States’ was used at the time to refer to someone who undertook a public duty and swore an oath to the Constitution. So, if you look at the lawmakers in the 39th Congress — and that is the one that drafted and approved the text of Section III — their debates elucidate how they viewed the presidency and … the record is replete with references to the president as an officer.”

Much in the way that CREW, Free Speech for the People, Baude and Paulsen, and many other legal experts, including Calabresi, until recently, argued for a plain reading and logical interpretation of the statute, Fernandes too suggested that one must simply weigh the “factual backdrop” of Section III.

“Lawmakers after the Civil War were concerned about our then-fragile nation — one that had just barely survived this massive conflict — and were worried that there would be a seriously destabilizing effect on our republic if former confederate officers who, after having violated the oaths they took to support the Constitution by engaging in violent insurrection, were able to somehow later serve in office and further destabilize [us],” Fernandes said. “Considering the debates and the primary animating purpose behind Section III, it is unfathomable to think these lawmakers would be worried only about lower offices, but not the highest and most powerful office in the land.”

In U.S. history, disqualifications under Section III have been exceedingly rare. Fernandes noted there have been eight officials disqualified under the provision and that these were done via adjudications through legislative bodies or the courts.

“Of course, in the years after the Civil War, there were countless numbers of non-adjudicated disqualifications of Confederate officers,” Fernandes added.

The last time Congress enforced Section III was in 1919 when barring socialist congressman Victor Berger from serving since he was accused of providing aid to Germany in World War I. He was seated in a later Congress after the Supreme Court acquitted him of espionage on grounds of judicial bias.

As for the states, bids to disqualify insurrectionists have been rare and mostly unsuccessful — except for CREW’s efforts while representing three voters in New Mexico in 2022. There, CREW led a lawsuit that resulted in former Otero county commissioner and convicted Jan. 6 rioter Cuoy Griffin losing his right to ever again serve in office because of his participation in the chaos that day.

“He took an oath to support the Constitution of the United States … [and then] engaged in that insurrection after taking his Oath,” New Mexico First Judicial District Judge Francis Mathew ruled in September 2022.

CREW’s attempt to disqualify Republican Rep. Marjorie Taylor Greene of Georgia on the allegation that she participated in insurrectionist or insurrectionist-adjacent activities failed last May. Greene was grilled during an evidentiary hearing where she answered “I don’t remember” or “I don’t recall” more than 80 times, including when asked if she could recall whether she urged Trump to invoke martial law — even though it appears that she did.

The litigation invoking Section III isn’t unprecedented or hallowed ground, though Fernandes acknowledged that this situation is unique since this is the first time it is being invoked against a person running for president. The U.S. has been “somewhat fortunate,” Fernandes said, that it has not had insurrections disturbing its stability the way many other nations have.

“I think the Framers were wise to establish this provision and not hem it in with language that was specific to the Civil War or Confederate officers,” he said. “They forged this language in the historical crucible of the Civil War but made a choice, a drafting choice, to be more expansive about officers who violated their oaths not being trusted again to serve the public.”

While some may argue that it is “undemocratic” for voters to use Section III to challenge someone’s ability to be on the ballot, Fernandes noted that the Constitution itself was a democratically enacted instrument, agreed upon by the people to serve as the governing document for a nation, and there was a reason the framers included the clause in the document.

“This provision addresses insurrectionists who are engaging in behavior that violates the Constitution and the rule of law,” he said. “Insurrections are inherently anti-democratic actions, so in some sense, this provision was concerned about anti-democratic behavior and authoritarian strongman behavior [so much] that it set up this lifetime ban on future office,” he said.

The line between democracy and a dictatorship is a thin one, and the Constitution itself is a “relatively slim document that provides critical protections,” Fernandes added.

“I think these cases will be important to ensure that a provision of our Constitution isn’t rendered a dead letter. Refusing to enforce this constitutional provision a dead letter threatens to turn it into a historical ornament,” Fernandes said. “It is also important to enforce this provision to discourage future insurrectionists. Refusing to enforce the text of Section III of the Fourteenth Amendment sends a dangerous message to future violators of this provision, much to the detriment of our republic.”