As James Joyner notes, another state has asserted that Donald J. Trump engaged in insurrection against the United States and therefore is not eligible to run for federal office. I agree with him that the likely outcome of this process is that the US Supreme Court will allow Trump to be on the ballot. But after having given this considerable thought, I am no longer convinced that such a decision would be the constitutionally correct one.
In simple terms, I do believe this is a qualification issue, like age and natural-born status. If it can be legally established that Trump engaged in insurrection, then I think that constitutional language (which we will get to) is clear: it means he is ineligible to serve.
Note that this is not a criminal or civil penalty. He is not losing his freedom nor having to pay a fine or restitution. It is no different than establishing that a candidate was born in Canada, not the United States, and therefore is ineligible to hold the office and therefore should not be allowed on the ballot. It is not a punishment, it is a matter of fact. (I acknowledge that the fact of birthplace is easier to establish than that of insurrectionist status).
I will note that I am still open to the argument that the normatively best outcome is for him to be allowed to run and lose in the election. But I also think that there is a significant risk that the Electoral College (as opposed to the will of the voters) will allow Trump to return to power, and that, specifically, section 3 of the 14th Amendment exists to prevent such an outcome. I think that it was written not only to deal with the aftermath of the US Civil War but also to establish a general constitutional principle: that a person who swears an oath to the United States and then participates in an insurrection or rebellion against the government they swore to uphold, should be forever barred from again serving in such a capacity.
The entire reason to have such a clause is that, in the aftermath of a rebellion, you do not want it to be possible for the defeated rebels to then find a way into power so as to subvert the state from within. Definitionally there will be sympathizers to a failed rebellion present in the populace even after the conflict is over. It is foolish to leave an open door for a return to power for someone who failed to uphold their oath.
If you fired an accountant for embezzlement and then found his application in the pile to fill the vacancies they left behind you would rightly throw it in the garbage.
Let’s look at the text.
Section 3
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.
First, the dodge that since “President” isn’t listed this clause does not apply to POTUS strikes me as utterly ridiculous. It seems patently obvious that the President of the United States is an “officer of the United States.” For an extensive treatment of this topic, see Roger Parloff at Lawfare: “For Whatever Reason”: Will the Colorado Supreme Court Apply the Constitutional Insurrectionist Bar to Presidents?
Second, I see no reason why this clause would only apply to activities during the US Civil War (any more than section 1’s birthright citizenship right applied only to persons born at the time). It strikes me as definitionally true that when a constitution is amended that it is done so for a proximate cause (in this case, quite clearly, to deal with the aftermath of the Civil War) but also takes on a generalized meaning unless the text is specifically limited. The language used is general, not specific, and therefore logically extends to any insurrection or rebellion.
Third, to me, there can be reasonable disagreement, is whether “engaged in” requires a criminal conviction. I initially was of the view that such a conviction was necessary, but have been persuaded by being exposed to numerous arguments that a conviction is not needed, but rather a legal finding of fact is sufficient.
As Adam Serwer noted in The Atlantic (The Colorado Ruling Calls the Originalists’ Bluff).
There is no language limiting the power of the section to former Confederates, however, and its scope is sweeping, with no requirement that those engaged in the specified conduct be convicted. Indeed, given the number of people who served in the Confederate army and governments, such a requirement would have been impractical.
I would note that there was a 5-day bench trial in Colorado district court to determine if Trump engaged in an insurrection wherein evidence was provided and a legal defense entered. The court found him to have engaged in insurrection and ruled that he was eligible to run because section 3 does not include the word “President” (see my point #1 above).
As George Conway noted in The Atlantic (The Colorado Ruling Changed My Mind)
This was a full-blown, five-day trial, with sworn witnesses and lots of documentary exhibits, all admitted under the traditional rules of evidence before a judicial officer, who then made extensive written findings of fact under a stringent standard of proof. Every day in this country, people go to prison—for years—with a lot less process than Trump got here. As for the expeditiousness of the proceedings, that’s in the very nature of election disputes: Recall, once again, Florida in 2000. And Samour’s suggestion that Trump was denied a fair trial because he didn’t have a jury is almost embarrassing: Any first-year law student who has taken civil procedure could tell you that election cases are not even close to the sort of litigation to which a Seventh Amendment jury-trial right would attach.
Fourth, since Congress can lift this sanction, it seems not at all unreasonable for the courts of Colorado to have made their determination and for the remedy to be Congress’ to provide. Indeed, that is how the amendment plainly reads.
I cannot stress enough that the language is pretty straightforward.
Let me conclude by highlighting that I utterly understand concerns that removing Trump from the ballot via this process could further exacerbate polarization in the country, and therefore it is risky. I can, therefore, understand why there might be a preference that it not unfold in such a manner. At any given moment, I am persuadable of that position.
But I also think that the language of section 3 is exceedingly clear. If it can be determined (and it legally has in Colorado, at a bare minimum) that Trump engaged in insurrectionist activities, he is constitutionally barred from holding federal office. And such an outcome would be just in my mind, as he swore to uphold federal law and to protect and defend the Constitution and then brazenly tried to betray that oath while in office.
He disqualified himself by those actions, plain and simple.
