WASHINGTON — Amid the legal troubles facing former President Donald Trump in federal and state courts, efforts to prevent him from running No. 1 and in the general election under the Constitution’s “insurrection” clause are gaining traction in several states.
The lawsuits invoke what’s known as the disqualification clause, Article 3 of the 14th Amendment, and that provision has now been cited in two lawsuits filed through the electorate in Colorado and Minnesota that argue Trump is not constitutionally eligible for federal office because of his actions. around the Jan. 6, 2021, attack on the U. S. Capitol.
The prosecution of the former president is giving rise to closely watched legal battles that will test the scope and force of a constitutional provision enacted after the civil war. The effects could rattle the No. 1 Republican if Trump, lately the leading candidate for the GOP nomination, proves ineligible to run for the White House for a third time.
Here’s what you want to know about Section 3:
Also as a “disqualification clause,” Article 3 of the 14th Amendment states:
No user shall be a Senator or Representative of Congress, or an elector of the President or Vice President, or hold any civil or military office, in the United States or in any State, who, after having been sworn in the past, as a member of Congress, or as an officer of the United States, or as a member of a legislature of any State, or as an executive or judicial officer of any state, under the Constitution of the United States, shall have participated in an insurrection or uprising opposed thereto, or given aid or convenience to its enemies. But Congress can, by a two-thirds vote of each House, eliminate this disadvantage.
The provision applies to those who have taken an oath to the U. S. Constitution and are “engaged in an insurrection or rebellion” against the United States or “aiding or abetting the enemies” of the nation. Article 3 allows Congress to “remove such a handicap” by a two-thirds vote of the House and Senate.
The 14th Amendment was passed by Congress in 1866 and ratified by the states in 1868. Enacted after the Civil War, the disqualification clause was intended to save former Confederate civil and military officials from holding state or federal office.
Section 3 was primarily used between its ratification and the enactment of the Amnesty Act of 1872, which removed the ban on holding jobs for top Confederate officials and their sympathizers, according to the National Archives and Records Administration.
A posthumous exemption from Section 3 was also granted through Congress to Robert E. Lee, the Confederate general, and Jefferson Davis, former president of the Confederate States of America, in 1975 and 1978, respectively, when all their citizenship rights were restored.
An 1869 case involving Caesar Griffin, an accused Black felon, is considered the first primary judicial opinion on Section 3, according to a 2021 law review article written by Gerard Magliocca, a law professor at Indiana University who has studied the provision in depth. In that case, Chief Justice Salmon Chase, the circuit that ruled on hearing instances in Virginia, held that the text of Section 3 was not self-executing and could only be enforced through an act of Congress. But Magliocca said the factor of whether to enforce that provision will likely be challenged in court battles over Trump’s eligibility.
Article 3 has rarely been used in fashionable times and has never been opposed to a former president. But recently, in September 2022, a ruling in a New Mexico state court ruled that Couy Griffin, the county commissioner and founder of the organization “Cowboys for Trump,” will be expelled from a government workplace and barred from applying for or occupying a federal or state workplace under Section 3.
Judge Francis Mathew of the First Judicial District Court in Santa Fe cited Griffin’s involvement in the Jan. 6 attack on the U. S. Capitol. He was convicted in March 2022 of illegally entering the Capitol and sentenced to 14 days in jail. Griffin earned credit for time served.
Magliocca said the ruling “counts for something,” as a court found the Jan. 6 attack to be an insurrection in which Griffin had participated, but noted that it was a single ruling adopted by a state trial court.
“It would be one thing if the New Mexico Supreme Court said ‘yes, we believe this user is disqualified because of Section 3,'” he told CBS News. “So it matters, but it’s not as strong an authority as it would have been if it had been upheld on appeal. “
The key questions that may determine whether Article 3 applies to Trump are whether the Jan. 6 attack on the Capitol was an insurrection and whether Trump “participated” in that insurrection.
According to Magliocca, deciding whether a candidate took a stand on Jan. 6 will raise long-standing and practical questions about beyond the rights and consequences of adopting a specific definition that would apply to disqualifications in the long run.
“There’s going to be an old part, and then there’s going to be some kind of practical discussion, ‘where will this take us?'” he said, underscoring the debate over whether Jan. 6 is an insurrection. It will probably be the key war being fought.
On the question of whether Trump participated in an insurrection, it would be difficult to limit the reach of those who did so on January 6 to cover only the violent.
“It’s hard to see how Trump, as the driving force on this issue, wasn’t worried,” Magliocca said. “The only way to say I wasn’t would be to say, look, in fact, the only other people involved in this were those who were directly involved in violence or destruction of property. This is a pretty narrow definition that would also trap the fans and not the leaders. “
Conservative jurists William Baude and Michael Stokes Paulsen wrote in an upcoming law review article that Section 3 is an enforceable component of the Constitution that is self-executing and does not require any further action by Congress. for his involvement in the “attempt to overturn the 2020 presidential election. “
This was also a conclusion reached by retiree J. Michael Luttig, of great repute among conservatives, who, along with legal scholar Laurence Tribe, wrote in the Atlantic that Trump’s moves related to the 2020 election “place him squarely within the scope of disqualification. “clause, and is no longer eligible to serve as president again. “
But Trump questions his ineligibility for the presidency, writing on his social network Truth Social that the 14th Amendment “has no basis or legal status” in relation to the 2024 election. He called attempts to use Article 3 a “gimmick” and, by comparison, “election interference. “
Two law professors argued in a 2021 law review article that Article 3 does not apply to Trump because, as president, he is not an “official of the United States” covered by the disqualification provision.
Magliocca said attempts to invalidate Trump would approve lawsuits filed through the electorate or through secretaries of state who would make the decision unilaterally; the latter procedure would cause a legal challenge filed through Trump and would be the quickest route.
“In theory, a secretary of state could say somewhere today that I think he’s not eligible, there’s going to be a trial and you’re going to get an initial decision pretty quickly,” he said. “But the judgment of the voters, when will it be the subject of a hearing or a decision?Not for a while. “
In August, New Hampshire’s secretary of state asked the attorney general for his perspectives on the meaning of Section 3 and its potential applicability to the 2024 presidential election cycle. Reacting to that request, New Hampshire attorney John Fortella said Wednesday that state law does not give the secretary of state “the discretion to withhold a candidate’s call for the ballot on the basis that the candidate would possibly be disqualified under Section 3 when a candidate has not been convicted or found guilty of the conduct most likely to disqualify him under that clause. “
An organization of six Colorado electors (four Republicans and two unaffiliated) filed a lawsuit in state court on Sept. 6, arguing that Trump is ineligible to run in Colorado’s general and number one election under Section 3. The lawsuit alleges that Trump is disqualified from holding public elections. The workplace is asking the court to prevent the Colorado Secretary of State from taking any action that would allow him to run for office.
On October 30, the trial in the Colorado case began. The judge in charge of the litigation, Sarah Wallace, rejected a request by Trump’s lawyers to recuse himself because of his political donations.
“We’re here because Trump is claiming, after all this, that he has the right to be president again,” Eric Olson, a voter advocate, told the court on the opening day of the trial, describing the occasions in January. “But our Constitution, our nation’s common charter, says you can’t do that. “
Colorado’s lawsuit is expected to be the only one aimed at Trump and his 2024 White House bid: Noah Bookbinder, executive director and president of the organization Citizens for Responsibility and Ethics in Washington (CREW), who filed the case on behalf of Colorado voters. , said additional action would be taken in other states.
Separate from CREW, an organization of 8 Minnesota electors filed a lawsuit in state court, alleging that Trump is not constitutionally eligible to be Section 3 president. Arguments in the case are scheduled to begin in the Minnesota Supreme Court on Nov. 2.
“a overthrow or displacement of lawful governmental authority through unlawful means. “
Free Speech for People, the organization suing Minnesota, and Mi Familia Vota Education Fund, sent letters to secretaries of state and election officials in nine states in July, urging them to ban Trump from voting in their respective states because he intends to do so. So I will no longer be running for Division 3 elections.
In those letters, the teams argue that states can enforce the clause without any federal act of Congress authorizing them to do so, and write that the disqualification provision does not require Congress or a court to rule on Trump’s eligibility factor before state officials.
“His resolution would deprive Mr. Trump of due process. You can challenge an unfavorable ruling in court,” the two teams said.
The secretaries of state and top election officials who won the letters are from Oregon, California, Massachusetts, Colorado, Michigan, New York, North Carolina, Georgia and Pennsylvania.
That it might. Bookbinder said his organization was ready to appeal an unfavorable ruling to the country’s highest court. But whether the justices ultimately interact in a dispute over Trump’s eligibility may depend only on time.
Magliocca predicted that if the Colorado case and others are not brought before state courts by the end of the year, it will be difficult for the Supreme Court to determine whether Trump is disqualified again under Article 3.
“If you don’t get [a decision] before January, then that’s a challenge because there will be elections in some places where it’s not transparent whether he’s eligible or not,” he said. “And then, if you said he wasn’t eligible, I would reject the votes already cast for him. This would only create difficulties within Republican procedure number one for the other candidates. “
The Republican caucuses in Iowa are scheduled for Jan. 15, and a date has not yet been set for New Hampshire’s Republican primary, the first in the country. In South Carolina, another state where primaries are scheduled, Republican elections are scheduled for Feb. 24. .