The 117th Congress adjourned sine die with a crucial responsibility unmet. Congressman David Cicilline of Rhode Island introduced a bill, with forty Democratic legislators signed on as co-sponsors, to declare that Donald Trump is constitutionally ineligible to serve as President pursuant to the Fourteenth Amendment. That effort received a boost when the Final Report of the January 6 Committee was issued, coupled with a criminal referral to the Justice Department accusing Trump of inciting an insurrection. The Report painted a detailed picture of a weeks-long, multi-pronged attempt to nullify the 2020 Presidential election and described the events of January 6 as an “insurrection” sixty-seven times. But the “lame duck” session of Congress was simply too short, so Cicilline’s bill did not reach a vote.
That will not be the end of the matter, however. At least three advocacy groups, Free Speech for People, Mi Familia Vota Education Fund and Citizens for Responsibility and Ethics in Washington, have promised to file Fourteenth Amendment lawsuits seeking to have Trump barred from the ballot. Many more lawsuits are certain to be filed.
Those litigants are correct. Donald Trump is ineligible to serve as President again, pursuant to Section Three of the Fourteenth Amendment.
The Language of Section Three. The Fourteenth Amendment was adopted in 1868 in the wake of the Civil War. Although Section Three was aimed at former Confederate officials and officers, the language is general:
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 previous 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.
Two things are worth noting about the plain language of Section Three. Although many scholars refer to Section Three as the “disqualification clause,” the language is of ineligibility. The language of Section Three is similar to that of Section 1 of Article II, which provides that “no person shall be eligible” to the office of President except a natural-born citizen at least thirty-five years old. Although many scholars argue that Section Three is not self-executing, in my view they are mistaken. No Congressional action is required to make an underage candidate or one born overseas ineligible to serve as President, and insurrectionists are made ineligible in similar terms by Section Three. See State of New Mexico v. Griffin, Case No. D-101-CV-2022-00473, Conclusions of Law, ¶ 10 (Sept. 6, 2022), appeal dismissed, (November 15, 2022). Moreover, the language of Section Three (“No person shall . . .”) is similar to that of Section One (“All persons . . . are”), and no scholar doubts that Section One is self-executing.
Nor is the ineligibility language of Section Three made subject to the presidential pardon power. Some have speculated in recent weeks that Mr. Trump might have issued himself a secret “pocket pardon” in the waning days of his Presidency - a pardon which was fully executed and then shoved in a drawer as insurance against future contingencies, such as a criminal indictment for federal crimes. But although Congress has the authority to restore eligibility under Section Three by a two-thirds vote of both houses, a Presidential pardon does not reach Section Three ineligibility.
To apply Section Three to Mr. Trump’s conduct, we must consider the meaning of several terms it uses. Trump was the first President who had never served in federal or state governmental or military office before taking office. Therefore, for him to have been serving in a qualifying position under Section Three, we must conclude that the President is an “officer” of the United States. Second, were the events of January 6 an “insurrection or rebellion”? Third, did Trump “engage” in insurrection or rebellion? Fourth, what does giving “aid or comfort” mean? Fifth, would Trump have a viable First Amendment defense to any attempt to question his eligibility under Section Three?
Is the President an “Officer” of the United States? In a case involving the Emoluments Clause brought during Trump’s presidency, his attorneys argued that the President was not an “officer” of the United States. That argument arises from Section 2 of Article II, which gives the President the power to appoint “ambassadors, public ministers and consuls, judges of the supreme court and all other officers of the United States.” Since the President is not included in what appears to be an all-inclusive list, the argument goes, he is not an “officer.”
But there is something sophistic about the argument arising from Section 2. If we take a step back and apply a little common sense, we see (as Norman Eisen, Richard Painter and Laurence Tribe have pointed out) that Article II repeatedly refers to the Presidency as an “office.” Who would hold an “office” but an “officer”?
There is no shortage in the historical record of references to the president as a “mere executive officer.” James Buchanan used the term in his 1860 State of the Union address, insisting that he had no authority to recognize (or decline to recognize) secession. In April 1866, Senator Benjamin Wade of Ohio used the term to refer to Andrew Johnson. Cong. Globe, 39th Cong., 1st sess., p. 1800. In January 1867, Representative Thaddeus Stevens of Pennsylvania used the same phrase in referring to the president. Id., 39th Cong., 2nd sess., p. 252. Representative John Logan used the phrase in an argument during Johnson’s impeachment trial. Supp. to Cong. Globe, Trial of President Andrew Johnson, p. 255. There is no evidence, on the other hand, that anyone involved in writing or ratifying Section Three believed that a President’s oath to support and defend the Constitution was insufficient to subject the President to ineligibility in appropriate circumstances.
Were the Events of January 6 an “Insurrection or Rebellion”? Were the events of January 6 an “insurrection or rebellion”? The contemporary understanding of an “insurrection” in 1868 was that it required (1) an assemblage of persons, (2) acting to prevent the execution of one or more federal laws or attain an object of a public nature, (3) through the use of violence, force, or intimidation by numbers. “Insurrection,” Webster’s Dictionary (1828) https://perma.cc/9YPA-XN8J; Case of Fries, 9 F. Cas. 924, 930 (C.C.D. Pa. 1800); Justice John Catron, Judge Robert W. Wells & Judge Samuel Treat, Charge to the Grand Jury By the Court, (St. Louis: Democratic Book and Job Office, 1861), p. 4. Webster’s defines “sedition” as resistance less extensive than “insurrection,” and “rebellion” as an outright attempt to overthrow the government, as opposed to merely obstructing the execution of the laws.
The Final Report of the January 6 Committee makes a powerful case that the events of January 6 and the weeks preceding it did constitute an “insurrection.” The mob which attacked the Capitol was obviously an “assemblage of persons” who acted in hopes of preventing the due execution of the Twelfth Amendment and the Electoral Count Act, which governed the proceedings in Congress that day, in order to prevent the transfer of power. They did so through violence, force and intimidation by numbers; the certification of Mr. Biden’s victory was delayed by hours, and five police officers lost their lives as a result of the melee. New Mexico v. Griffin, Conclusions of Law, supra, ¶¶ 18-32 (agreeing that the events on and around January 6 were an “insurrection”).
When one considers the broader context of the events of that day, the case for “insurrection” becomes even stronger. Witnesses have testified that January 6 was merely the final tragic act in a sequence of events which began as early as September 2020. The January 6 Committee pointed to Mr. Trump’s’ premature claiming of victory late on Election Night; Trump’s torrent of litigation, which saw the filing of sixty lawsuits challenging various aspects of the vote; efforts to pressure state legislatures to set aside election results on grounds of non-existent fraud; the preparation of counterfeit electoral vote certificates with Trump’s own electors; Trump’s heavy-handed pressure on Vice President Pence to unilaterally set aside multiple states’ electoral votes; and finally, Mr. Trump’s alleged inaction for more than three hours on the afternoon of January 6, failing to order in additional security forces to protect the lawmakers and clear the Capitol building.
Did Mr. Trump “Engage In” Insurrection? Did Mr. Trump’s alleged actions amount to “engag[ing] in” insurrection within the meaning of Section Three? The answer is yes.
The contemporary case law defines “engaging in” insurrection or rebellion as “[v]oluntarily aiding the [insurrection], by personal service, or by contributions, other than charitable, of anything that [is] useful or necessary” to the insurrectionists’ cause. Worthy v. Barrett, 63 N.C. 199, 203 (N.C. 1869); United States v. Powell, 27 F. Cas. 605, 607. It was not necessary for a person to commit acts of violence in order to be found to have “engaged in” insurrection or rebellion. Worthy, 63 N.C. at 203 (individual “engaged in” rebellion by holding the office of county sheriff under the Confederate government); Powell, 27 F. Cas. at 607 (individual “engaged in” rebellion by voluntarily providing a substitute to avoid serving in the Confederate army).
The January 6 Committee referred Mr. Trump for prosecution under the Insurrection Act, 18 U.S.C. § 2383, which covers anyone who “incites, sets on foot, assists, or engages” in rebellion or insurrection. Substantial evidence supports that referral. Witnesses testified that Mr. Trump was told by several different people in the Justice Department and elsewhere that there was no evidence to support his allegations of voter fraud; he continued to make public allegations anyway. Cassidy Hutchinson testified that Mark Meadows told her that Trump had acknowledged to him that he had lost the election. Mr. Trump arguably summoned the mob to Washington with his infamous “be there - will be wild!” December 19 tweet announcing the rally. Ms. Hutchinson testified that she had been told that Trump had a physical altercation with his security detail when they refused to take him to the Capitol - testimony that was disputed in the press, but never contradicted by sworn testimony. She also testified that when she reported to Mark Meadows that the rioters were chanting “hang Mike Pence,” Meadows responded that Trump “thinks Mike deserves it.” The Committee documented a surge in violence by the crowd at the Capitol following Trump’s 2:24 p.m. tweet stating that Pence “didn’t have the courage to do what should have been done.” Each of these acts, if proven to a court’s satisfaction, could arguably constitute “[v]oluntarily aiding the [insurrection], by personal service, or by contributions . . . of anything that [is] useful or necessary” to the cause.
Did Mr. Trump Give “Aid or Comfort” to “Enemies of the United States”? The second prong of Section Three renders ineligible anyone who gives “aid or comfort” to “enemies of the United States.” This language closely tracks the Treason Clause of Article III, Section 3 and is ultimately derived from the English Treason Statute of 1351, which defines “giving aid and comfort” as an act which tends to strengthen the enemies of the government in the conduct of a war, or which tends to weaken the power of the government to resist or attack its enemies. Carlton F. W. Larson, The Forgotten Constitutional Law of Treason and the Enemy Combatant Problem, 154 U. Pa. L. Rev. 863, 869 (2006). The Supreme Court has held that the constitutional clause is consistent with its “accepted and settled meaning” in the Treason Statute. Cramer v. United States, 325 U.S. 1, 76 (1945). According to the Court, “aid and comfort is given when the enemy is encouraged and his morale boosted as well as when materials are furnished.” Id. at 73, 76. As for the views of the framers of the Fourteenth Amendment, in the case of McKee v. Young, the Committee on Elections held that “aid and comfort may be given to an enemy by words of encouragement, or the expression of an opinion, from one occupying an influential position.” 40th Cong., 1st sess., H.R. Rep. No. 40-29, at 2 (1868). The Committee recommended that Congress refuse to seat John D. Young based almost entirely on speech: encouraging Confederate recruiting in Kentucky, giving information to Confederate authorities which led to the capture of Union soldiers and refusing to take the Union loyalty oath in 1862. The full House agreed and declined to seat Young. The allegations set forth above about Mr. Trump’s alleged conduct are substantial evidence of giving aid and comfort to enemies of the United States.
Mr. Trump’s statements to date suggest that he would defend any Fourteenth Amendment lawsuits by arguing that all of his conduct was protected by the First Amendment. Is such a defense viable? The answer is likely no.
This argument ignores a bedrock principle of reading constitutions and statutes. The constitution and its amendments are a single, integrated document. Section Three of the Fourteenth Amendment is of no less stature than the First Amendment. Accordingly, they must be read together; effect must be given to both. Given that nothing in Section Three suggests a First Amendment defense to “inciting” or “giving aid or comfort,” we must conclude that it is possible to do so by pure speech alone, notwithstanding the First Amendment.
Even if that were not so, the Supreme Court has long recognized that the First Amendment is not absolute. Speech which is directed toward and likely to incite imminent unlawful action may be a subject of prosecution. Hess v. Indiana, 414 U.S. 105, 108; Brandenburg v. Ohio, 395 U.S. 444, 447 (1969). Trump’s urging his supporters to “fight” during his speech when, according to the testimony of Cassidy Hutchinson, he knew that many of those supporters were armed, could be construed as speech directed toward and likely to incite imminent unlawful action, and therefore outside of the First Amendment. United States v Sheppard, Mem. Opn. Rejecting Public Authority Defense, Crim. No. 21-203 (JDB), December 28, 2022, pp. 14-19 (finding that jury could conclude that Trump was urging supporters to do something more than lawful protest).
But even if the January 6 speech were protected by the First Amendment (which it was not), narrowing the inquiry to that speech ignores the full body of evidence presented by the January 6 Committee. The Committee’s Final Report describes evidence of a wide variety of alleged affirmative acts and knowing and willful failures to act by Mr. Trump, beginning well before the election and culminating on January 6, when he allegedly declined to intervene for over three hours as the violence unfolded. There is no viable First Amendment defense to allegations centered on this conduct.
Procedural Vehicles for Enforcing Section Three in Court. With no prospect for a Congressional finding regarding Mr. Trump’s ineligibility, the question will have to be decided in court.
The earliest option available is a state court action to have Trump removed from the Republican primary ballot. In most states, this would proceed through a petition for a writ of mandate or mandamus brought against the official responsible for arranging the ballot, typically the Secretary of State or Board of Elections. In California, the appropriate action would be a petition for writ of mandate pursuant to Code of Civil Procedure § 1085(a). E.g., Early v. Becerra, 47 Cal.App.5th 325, 329 (2020); Boyer v. County of Ventura, 33 Cal.App.5th 49, 52 (2019). This would be a complicated and expensive process. Since there is no such thing as a national ballot at the primary stage, separate actions would have to be brought in each individual state. Standing to bring the action would be limited to persons with a peculiar interest in the office, such as another candidate for the nomination.
Even if Mr. Trump were to win on Election Day, it might be possible for a person with standing to bring an action for writ of mandate in the District of Columbia seeking to enjoin Congress from proceeding with the counting of the electoral votes on the grounds of Trump’s constitutional ineligibility.
If Mr. Trump were to take office, the appropriate vehicle for challenging his eligibility would likely be a petition for a writ of quo warranto in the federal courts in the District of Columbia. Quo warranto is a common law writ demanding that an office holder demonstrate by what authority he or she holds the office. The earliest attempts to enforce Section Three were quo warranto actions. Approximately 180 actions were brought in Tennessee alone, and in October 1870, the United States Attorney filed an action to remove three Justices of the Tennessee Supreme Court.
The District of Columbia Code provides that either the U.S. Attorney General or the United States Attorney may institute a proceeding for quo warranto in the District Court for the District of Columbia against a person who “usurps, intrudes into, or unlawfully holds or exercises” a “public office of the United States, civil or military,” located within the District. D.C. Code §§ 16-3501, 16-3502. If those persons decline to proceed, a person with standing must petition the court for leave to proceed through a verified petition setting forth the grounds for the claim. § 16-3502.
If all this sounds like impending chaos, that is because it is. Already, a New Mexico court has removed a state county commissioner from office permanently pursuant to Section Three. Going forward, challenges to Mr. Trump’s eligibility are a certainty in federal and state courts. Conflicting rulings are likely, leading to months of uncertainty and likely a final showdown in the U.S. Supreme Court. If Mr. Trump continues his third campaign for the presidency, it is difficult to see how we can escape that constitutional crisis.
Image courtesy of Smithsonian American Art Museum (Renwick Gallery)
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