As Donald Trump continues to battle four indictments in federal and state courts, a new challenge has arisen from both Democrat and Republican ranks. Even though Trump’s growing list of indictments does not prevent him from seeking the presidency once more, a new legal battle has arisen as to whether he remains eligible according to a rarely-litigated section of the Fourteenth Amendment to the United States Constitution, the so-called Insurrection Clause.
Section 3 of the Fourteenth Amendment to the United States Constitution declares the following:
“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.”
The Fourteenth Amendment was formalized after the Civil War to “deal with various aspects of the conflict,” according to Tom Ginsburg, professor of international law and political science at the University of Chicago. Section Three states that “no person” may hold public office, having held public office in the U.S. before, and since then “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof”, although a supermajority of the House of Congress may “remove such disability”.
The ongoing debate regarding whether Trump ought to be disqualified from running for President is focused on his role in the January 6th protests that led to the storming of the Capitol by Trump supporters following his defeat in the 2020 presidential elections. Additionally, Trump’s actions related to the Georgia election fraud have come under scrutiny and a lawsuit was submitted by Citizens for Responsibility and Ethics (Crew) on September 6th, 2023, on behalf of six voters to “challenge the listing of (…) Donald J. Trump as a candidate on the Republican presidential primary election ballot and any future election ballot, based on his disqualification from public office under Section 3 of the Fourteenth Amendment”.
To determine whether Trump may or may not be removed from the ballot, one must thoroughly analyze Section 3, particularly the terminology related to the case. The application of the word “engage” implies active and voluntary involvement in the act. In United States v. Powell, Judge Hugh Lennox informed the jury of the implication of voluntary engagement related to Section Three: “[T]he word “engage” implies, and was intended to imply, a voluntary effort to assist the Insurrection or Rebellion, and to bring it to a successful termination; and unless you find the defendant did that, with which he is charged, voluntarily, and not by compulsion, he is not guilty of the indictment.”
A further point of discussion may also be raised by different definitions of the words “insurrection” and “rebellion” and their respective interpretations in 1868. John Bouvier’s law dictionary, a widely-used legal handbook at the time based wholly on U.S. statutes and court decisions, defines “insurrection” as a “rebellion of citizens or subjects of a country against its government”, whereas “rebellion” is defined as “the taking up arms traitorously against the government”. William Baude, professor of law at the University of Chicago, states that the similar nature of the respective, where both involve a certain degree of armed uprising against a “law-fully constituted government”, resulted in the terms being used interchangeably with no clear distinguishment being made between them. To place these definitions into a modern perspective, Baude concludes that Section 3 encompasses actions and “conduct participating in, advancing, supporting, or assisting either secession or armed resistance to U.S. authority”. This highlights another conundrum: the varying interpretations of such terms based on their original meaning in the 19th century. Thus, legal cases in the future will most likely be focused on phrasing and interpreting these terms so they may be used to their advantage.
Arguments have been raised by Alan Dershowitz and Michael McConnell that the implementation of Section 3 may have drastic impacts and is “profoundly anti-democratic”. If Trump were to be removed from the ballot, voters would be deprived of their ability to support their preferred candidate in an election. “The right to vote freely for the candidate of one’s choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government”; Reynolds v. Sims, 337 U.S. 533, 555 (1964). Consequently, if the partisan secretary of state of the incumbent administration was able to prevent the dominant favorite of the opposing party from running for President, it would present a serious danger to democracy since the people’s votes would effectively be rendered insignificant.
However, a legal precedent that could be used may have already occurred last year. Otero County Commissioner Couy Griffin was removed from office, based on his actions in the January 6th riots, in September 2022 after a lawsuit from CREW proved successful. Griffin’s involvement in the January 6th riots included engaging in “repeated efforts to mobilize a mob and incite them to violence”, having taken up leadership positions within the mob that day. This contributed to his conviction of trespassing at the U.S. Capitol which was deemed enough to eject him from public office on the grounds of the Fourteenth Amendment. Since Section 3 explicitly mentions that “no person shall be” a holder of public office, this implies that an incumbent holder may be removed, not just prevented, from holding public office. Hence, this poses the question of whether this section may be used against a sitting President. Even though Article 1 (Section 2, Clause 5) of the constitution explicitly states that the House of Representatives has the “sole Power of Impeachment”, and the constitution goes to great lengths to provide procedures for getting rid of an elected president, Section 3 could, if implemented, trump the First Amendment, thus no longer requiring due process. Therefore, the judicial ruling in United States v. Couy Griffin may pose a dangerous legal precedent that may significantly impact the nature of democracy in the United States, as it could lead to a re-interpretation of significant and highly litigated parts of the U.S. Constitution.
Furthermore, as Griffin’s case has proven, he was not required to be found guilty of the disorderly conduct charge in order to be removed from office; merely being found guilty of the charge of trespassing. This could, in fact, render Trump’s indictments meaningless since it might no longer depend on Trump being found guilty of one of “conspiring against rights, obstructing and attempting to obstruct an official proceeding, conspiring to obstruct an official proceeding or a conspiracy to defraud the United States government”, which are his most recent charges in the August 2023 federal indictment in Washington DC. Thus, the events of the January 6th riots may even be enough to secure a conviction, because of the ruling in United States v. Couy Griffin that the attack on the Capital was an insurrection. Thereby, it must be proven that Trump in fact made a voluntary effort to assist in the riots of January 6th in order to ensure that he is no longer eligible to run for President.
“The key takeaway here is that the legal ruling in United States v. Couy Griffin, which classified the attack on the Capitol as an insurrection, suggests that one’s involvement in the events of January 6th may alone be adequate to establish their ineligibility to run for public office under Section 3 of the Fourteenth Amendment.”
The script for this contemporary chapter of jurisprudence has yet to be written. While the existence of a successful precedent may aid the accusatory, it is very likely that there will be new developments on both sides of the argument in the coming months; A legal case to follow will be the CREW lawsuit filed on September 6th, 2023, to ensure Trump’s removal from the ballot. Said lawsuit will potentially determine the future use of Section 3 concerning the removal of public officials who may or may not have adhered to their oath to the U.S. Constitution while in office.
Written by Johannes Kuehn von Burgsdorff
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