“no person shall [hold public office] who, having previously taken an oath … 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"
The application of the third section of the Fourteenth Amendment to Donald Trump has various complications.
I agree with Prof. Eric Segall that the provision, no matter whom it might be applied to, raises complicated issues. The issues should be decided using our current knowledge with the understanding that various prudential value-laden choices are involved.
Certain issues are not that complicated. For instance, the idea that it does not apply to former "presidents" (allegedly not the right kind of "officer") is absurd. We saw that in other contexts, such as the woefully (as applied to Trump) unenforced limits on emoluments (a genuine issue as applied to the Trump family).
Also, it does not just apply to the Civil War. Mark Graber discusses the history, noting this is clear partially because the text that was more specific ("late insurrection") was not adopted. The term "insurrection" is general, including something the federal militia can be called up to address (see, Art. I of the original Constitution).
Also, "rebellion" is also cited, and the Civil War specifically seems more like a rebellion. The other term is more open-ended, including such things as the Whiskey Rebellion or Shay's Rebellion, both tax revolts, not an attempt to overturn the government as a whole. The provision itself was applied to people involved in the Civil War and later on as well. Also, President Grant found Klan violence, a matter that in some form continued into the 20th Century, to be a sort of "insurrection."
There are more complicated policy-type arguments. I think the basic concept involved is appropriate. As to the argument there about the possibility of a "good insurrection," I question the concept, especially for those (previously taking a constitutional oath) specifically involved.
On that front, I am very sympathetic to a comment by a young Abraham Lincoln about following the law. Anyway, John Brown is not a good example since he did not even just have a quixotic plan to free slaves, but also attacked a federal armory. Plus, a supermajority of Congress can waive the disqualification.
The "let's just let the people choose" as applied to Trump at some point gets to be absurd. Trump not being convicted for "insurrection" (more below on that) in his second impeachment trial also is not too damning. The leader of the Senate Republicans himself still held Trump “practically and morally responsible, but used a very dubious procedural dodge.
There is also a fear that the provision will be abused by partisan election officials, which could apply to any number of election rules. The ongoing Minnesota case (there are starting to be significant 14A, sec. 3 litigation) underlines the level of due process and court review involved. And, especially on the level of the presidency, the Supreme Court is likely to be involved. See, for instance, the faithless electors' cases from a few years ago.
Congressional legislation can also be used here to clarify and provide safeguards. Our system gives a lot of discretion (including many matters involving qualifications for office) to states.
But, the federal government also has some regulatory powers, including an express power to enforce the Fourteenth Amendment as a whole. And, Congress has the power to determine the qualifications when sitting its own members, which was directly used in this context in the past.
It also might surprise people that Congress and the courts have addressed this specific situation. As one legal analysis noted:
At least twenty judicial opinions have used the word “insurrection” to describe the January 6 attack, and so did Congress in a statute ["a mob of insurrectionists"] awarding gold medals to the police heroes of that day. The single article of impeachment approved by the House of Representatives one week after the attack was headed “Incitement of Insurrection."
(And, he reaffirms my point that not only did a few Republicans actually vote to convict, but many of the remainder rested on procedural issues. Not denying the merits was also popular in the first impeachment.)
Lots of people were convicted for 1/6 related crimes, a few for the much more serious count of "sedition." I wrote a book review on a volume discussion of the constitutional issue of treason. The author was wary of applying the term "treason" to the events, but was quite accepting (at least for some people involved) to apply "sedition."
The constitutional law professor Garrett Epps remarked:
God knows insurrection was in evidence on January 6, among the weapons, signs, dangling nooses, chants of “Hang Mike Pence!” and Confederate flags.
Mark Graber has written a book on the Fourteenth Amendment, specifically his argument of the original attempt to use it to block Confederate control. Gerard N. Magliocca has written a lot about 19th-century constitutional and legal history, including a biography of John Bingham, a "father" of the amendment. He also has argued the events, including Trump himself, warrant disqualification.
(He includes a link to a long "originalist" paper by two conservative-leaning scholars that agrees. Magliocca is basically a Never Trump type and I disagreed with him some over the years. Including his opposition to the second impeachment trial. But, he has written a lot on this specific testimony and has served as an expert witness on the matter.)
Anyway, back to that long quote. The Just Security analysis argues that Trump clearly is guilty of insurrection. Only the credulous at this point really doubt this, again relying on technical arguments (whatever he did does not really come within the 14A, sec. 3 provision) or prudential (not a good idea) or policy (it's unjust). See, e.g., the impeachment and the 1/6 Committee Report, which directly accuses him of it with extensive detail.
Magliocca argues that the committee could have done more to address and educate about the disqualification. Perhaps so. But, the report directly cites it and at one point notes:
The Committee believes that those who took an oath to protect and defend the Constitution and then, on January 6th, engaged in insurrection can appropriately be disqualified and barred from holding government office—whether federal or state, civilian or military—absent at least two-thirds of Congress acting to remove the disability pursuant to Section 3 of the Fourteenth Amendment.
The original definition of "insurrection" or even "treason" (which is not the same thing legally) was if anything rather open-ended. Various of the experts linked above cited something like "resistance to any federal law was treason when the resisters had a public purpose."
One state analog is quite suitable here: "prevent any executive, legislative, or judicial officer or body from performing its lawful function." I question if "insurrection" should apply to every incident involving interfering with the arrest of someone or the like. But, if interfering with the transfer of power, the core of republican government, is not covered ... what exactly is?
The 14A, sec. 3 provision is not a criminal one. People repeatedly argue that a criminal conviction is required. This is false and not how it was applied after the Civil War. A criminal conviction would be a helpful bit of clarity, except to the degree that we will still debate the provision's reach. But, it is not necessary. The impeachment of Trump (a finding by a majority of the House of Representatives) is also notable.
There is a federal insurrection criminal statute:
Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.
Does this not cover what Trump did? It was not just about one speech (and his constitutional obligation to faithfully enforce the laws alone puts him in a different stead here than a private citizen; government employees repeatedly have been held to have limited right to speak on the job). It was a set of things before and during the events.
People have been found guilty of "sedition" for the events here. As one analysis notes, "sedition is conduct or speech that incites individuals to violently rebel against the authority of the government. Insurrection includes the actual acts of violence and rebellion."
I again reference the core of the republican form of government, which President Biden himself emphasized. Again citing the last link on the legal provisions involved:
In a constitutional democracy, sedition and insurrection refer to inciting or participating in rebellion against the constitutionally established government, its processes and institutions, or the rule of law.
The violent threats leading up to January 6, the actions taken at the Capitol, and the continued incitement of attacks on state and federal governments demonstrate a persistent and determined assault on U.S. democracy.
There is a variety of concerns that the "right" charges were not applied. As Mark Graber notes in his analysis, as did multiple judges involved, that is not correction. The charges involve "insurrection" in various forms. The January 6th Committee is correct:
The Committee recognizes that section 2383 [insurrection provision] does not require evidence of an “agreement” between President Trump and the violent rioters to establish a violation of that provision; instead, the President need only have incited, assisted, or aided and comforted those engaged in violence or other lawless activity to prevent the peaceful transition of the Presidency under our Constitution.
President Trump was directly responsible for summoning what became a violent mob to Washington, DC, urging them to march to the Capitol, and then further provoking the already violent and lawless crowd with his 2:24 p.m. tweet about the Vice President.
This general level of responsibility applies when other criminal accounts are involved. The federal indictment set forth four charges:
Conspiracy to defraud the United States, by attempting to overturn a legitimate election.
Conspiracy to obstruct an official proceeding, by attempting to stop the electoral certification on Jan. 6, 2021.
Observation of and attempt to obstruct an official proceeding. (See above.)
Conspiracy against rights, by attempting to overturn voters’ rightful decision in 2020. This charge comes from a 19th-century post-Civil War law.
This meets the constitutional definition of "insurrection" and so forth as set forth by the analysis cited above. The fact a specific count of "insurrection" was not involved did not stop all those judges from finding it being there. There is a certain "magic words" mirage here if the events and Trump's part in them do not fall within the constitutional provision.
There has been continual Susan Collin-esque empty "I'm so disappointed, no I'm shocked and appalled" rhetoric applied to Trump. And others. It is granted (minus the core MAGA) that he did horrible things. But, the actual consequences? Now now. That is a bit much. Let's trust the political processes. That worked so well before. He was defeated once, right? And, that only led to a few problems. Ha ha.
I'm just a poor urban constitutional law commentator. My opinion is not worth a hill of beans. I realize the process here is messy, but I think the provision is met on the merits. The provision does not just apply to Trump so clarity goes far past its application to one single individual.
And, as with the two impeachments, failure does not erase the truth of the matter or make the effort not worth the candle. I noted as much in a comment to this doubtful blog entry.
I hope this discussion helps. Anyway, the application of constitutional provisions over time turns not just on original understanding or the findings of the Supreme Court. It involves all of us in some fashion. "We the People."
