The effort to use Section 3 of the 14th Amendment to the Constitution to disqualify Donald Trump from running for president will get its first test in state courts next week as Minnesota and Colorado take up the question.
Section 3 of the 14th Amendment is a Civil War-era legal cudgel that prevented Southern politicians from holding office in order to undermine Reconstruction.
“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.”
If we unpack that section, we can immediately see several roadblocks that would prevent partisans from barring Trump from running for president or holding office. The most obvious one is the “insurrection or rebellion” language that Democrats keep using in a political sense (“the January 6 insurrection”), but that may not clear the very high bar legally.
Define the term “insurrection,” and then apply it to Trump’s actions — or inactions — on January 6. You’d have to present yourself as a mind reader to accuse Trump of trying to overthrow the government.
So for either of the 14th Amendment challenges to Trump’s candidacy to succeed, someone is going to have to prove that Donald Trump “engaged” in Insurrection or had “given aid or comfort” to insurrectionists” (if that’s what they were). That bar is not only high. It’s damn near Everest-like in height.
“Trump’s efforts to overturn the 2020 election and interfere with the peaceful transfer of power were part of an insurrection against the Constitution of the United States,” attorney Mario Nicolais wrote in the lawsuit. “By instigating this unprecedented assault on the American constitutional order, Trump violated his oath and disqualified himself under the Fourteenth Amendment from holding public office, including the Office of the President.”
Those are all January 6 Democratic talking points. But taking them into a courtroom and flinging those talking points around without backing them up with proof will — hopefully — prove to be a waste of time.
Trump’s attorney, former Colorado secretary of state Scott Gessler, contends in court filings that Trump never engaged in an insurrection, noting he told his supporters to protest “peacefully and patriotically.” In addition, he argues Section 3 of the 14th Amendment does not apply to the presidency and courts don’t have the ability to keep Trump off the ballot.
“The U.S. Constitution commits to Congress and the electoral college exclusive power to determine presidential qualifications and whether a candidate can serve as President,” he wrote in one filing. “Courts cannot decide the issue at the heart of this case.”
Even NeverTrumper David Frum, writing in The Atlantic, thinks it’s a fantasy to believe that using the Disqualification Clause will keep Trump off the ballot.
First, the section does not apply only to candidates for president—it does not even mention the president. It mentions senators, House members, electors, and civil and military officers of the United States or any state. The section appears to apply to the presidency only as part of that final catchall category.
Second, that phrase “aid and comfort to the enemies thereof”—what does that mean? The language is copied from Article III, Section 3 of the Constitution. But there, the language was drafted to make it difficult to convict an accused person of crime: “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.”
The nightmare scenario of Trump being denied ballot access in several states would only be the beginning, says Frum.
How in the world are Republicans likely to react to such an outcome? Will any of them regard such a victory as legitimate? The rage and chaos that would follow are beyond imagining.
And then what? If Section 3 can be reactivated in this way, then reactivated it will be. Republicans will hunt for Democrats to disqualify, and not only for president, but for any race where Democrats present someone who said or did something that can be represented as “aid and comfort” to enemies of the United States. Didn’t progressive Representative Ilhan Omar once seemingly equate al-Qaeda with the U.S. military? Do we think that her political enemies will accept that she was making only a stupid rhetorical point? Earlier this year, Tennessee Republicans tossed out of the legislature two Black Democrats for allegedly violating House rules. Might Tennessee Republicans next deem unruly Democrats “rebels” forbidden ever to run for office again?
Democrats are not thinking about the consequences beyond the next election. If they were, they’d know that what goes around comes around, and using an exaggerated definition of the 14th Amendment to damage Trump and keep him from winning will throw this country into a civil war.
