Insurrection, Ineligibility for Office, and the Fourteenth Amendment: Why Trump is Ineligible

Several courts have recently addressed claims that former President Trump is ineligible to appear on the primary ballot because of Section 3 of the Fourteenth Amendment. The Minnesota Supreme Court and the Michigan Court of Claims each rejected these challenges as unripe, meaning that it was not yet an appropriate time to consider Trump’s eligibility. More importantly, a Colorado trial court held a full trial to consider a challenge brought by CREW (Citizens for Responsibility and Ethics in Washington, a Democratic-leaning organization dedicated to fighting corruption). The Colorado court, in a careful, thoughtful, and well-written opinion, found that Trump “engaged in insurrection” in the meaning of the Fourteenth Amendment but held as a matter of law both that the President’s oath of office is not an “oath … to support the Constitution” and that the office of President of the United States is not an “office, civil or military,” as covered by Section 3. As a result, the court ruled that Trump remains eligible to serve as President and thus to appear on presidential ballots. A direct appeal to the Colorado Supreme Court has been filed, with CREW challenging the legal holdings that Trump remains eligible while Trump challenges the rulings against him as well as defending the outcome of the trial. The Colorado Supreme Court has set oral argument on the case for December 6 — a highly expedited schedule, as provided for by Colorado statutes, to enable the full resolution of the case before the Colorado Secretary of State needs to print primary ballots. I’m writing this to explain the issues and to discuss why the Colorado Supreme Court should hold that former President Trump cannot be elected to the office of President of the United States and therefore ought not to appear on the Republican presidential primary ballot.

Background

For the first time in living memory, a plausible argument exists that a major presidential candidate is constitutionally ineligible for office. Section 3 of the Fourteenth Amendment to the United States Constitution reads:

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.

Congress passed and the states ratified the Fourteenth Amendment in the aftermath of the Civil War. In addition to establishing a wide range of rights to ensure the full citizenship and equality of African-Americans, the Fourteenth Amendment addressed the legal status of people who had broken their oaths of office by joining in the Confederacy’s attempt to overthrow the Constitution. While citizens who had never served in office before the Civil War remained eligible to hold office even if they had supported, fought for, or held offices in the Confederacy, the framers of the Fourteenth Amendment thought that people who had already broken the oath of office once could not be trusted to follow it in the future. Section 3 ensured the ineligibility of figures like Jefferson Davis, who swore as a U.S. Senator to support the Constitution before seeking to destroy the United States as president of the Confederacy, and Robert E. Lee, who swore a similar oath as an officer in the U.S. military as late as 1861, when he accepted a promotion to colonel, before taking the field at the head of an army that caused the deaths of some 350,000 United States troops. While the leaders of the Confederacy and the specifics of the Civil War drove the adoption of Section 3, its language was much broader, applying to anyone who had taken an oath of office to support the U.S. Constitution and then “engaged in insurrection” against the Constitutional order.

Over the course of the second half of the Nineteenth Century, Congress gradually restored the eligibility of people who were disqualified by Section 3 because of their participation in the Civil War. Initially, Congress acted to restore the eligibility of people who had not held senior positions immediately prior to the war, before enacting a general amnesty from Section 3’s provisions in 1898.

Section 3 of the Fourteenth Amendment has only rarely been applied to insurrections after the Civil War. In 1919, Congress invoked Section 3 and refused to seat a Socialist, Victor Berger, after Wisconsin voters elected him as a Representative. Because he had been convicted under the Espionage Act for his anti-war efforts during World War I, Congress concluded that Section 3 made him ineligible. (Subsequently, the Supreme Court overturned his conviction, and Congress then seated him when he was re-elected in 1922.) At least one participant in the January 6th riots has also been ruled ineligible for a local office by a court applying Section 3.

Following the riots and the assaults on the U.S. Capitol on January 6, 2021, many people have raised the question of whether former President Trump bore responsibility for the attempt to prevent the Congress from counting the electoral votes and declaring Joe Biden President-Elect. Most notably, the House of Representatives indicted President Trump on January 13, 2021, on a single count of “incitement of insurrection,” by a vote of 232–197. Subsequently, after Trump had left office, the Senate tried him on that count, with the final vote on February 13, 2021. While a majority of the Senate voted to convict Trump — 57 to 43 — the Constitution requires a two-thirds majority to convict on an impeachment and Trump was thus acquitted. Seven Republican Senators joined all of the Democratic Senators in voting to convict. While more Republican Senators would likely have voted to convict President Nixon if he had not resigned, seven votes from a President’s own party is by far the most bipartisan vote in any presidential impeachment. In fact, Trump is the only President to have any members of his party vote for his conviction in an impeachment trial, with Sen. Mitt Romney voting to convict on one count in his first trial and seven voting to convict in the second trial.

While the impeachment could have resulted in Trump being disqualified for office under the terms of Article I, Sec. 3, para. 7, of the Constitution, various commentators began immediately suggesting that Trump was already disqualified by Section 3 of the Fourteenth Amendment. As the primary campaign has continued, various groups have asked state Secretaries of State to not put Trump on the ballot and have sought court orders forbidding his inclusion on the ballot, while Trump and his supporters have sought court orders compelling his inclusion on primary ballots.

So far, three courts have ruled on whether Trump can appear on primary ballots. In Growe v. Simon, the Minnesota Supreme Court held that a primary election is a private party activity, that the Republican Party could list candidates regardless of whether they are eligible for office, and that any challenges to Trump’s inclusion on the general election ballot were not ripe. Because of the urgency of the issue, they issued an order with a brief explanation with a full opinion to follow, and they have not yet released the full opinion. Judge James Robert Redford of the Michigan Court of Claims held in Trump v. Benson that the issue of whether Trump could be placed on the primary ballot was likely nonjusticiable and was also under the control of a private organization and, following Growe, held that claims related to the general election ballot were not ripe. He did issue a written opinion, although I do not think his opinion is well written or particularly edifying.

Finally, Judge Sarah B. Wallace of the Colorado District Court conducted a trial in Anderson v. Growe and found that Trump had engaged in insurrection, but that because of the precise phrasing of Section 3 remained eligible to serve as president. Her opinion was careful, thoughtful, well-written, and addressed the substantive issues in detail. While I disagree with some of her legal conclusions — indeed, I think they border on the absurd —her reasoning is worth serious consideration. Because the substantive question of whether Trump is eligible to be president is more important than the procedural details, I will focus on her opinion for purposes of this analysis.

Why Section 3 Disqualifies Trump

As a practical matter, we should not be surprised that courts have not wanted to bar Trump from running for president. Many prudential reasons exist for courts to want to stay out of this argument. Particularly because the presidency is such a unique, high-profile, national office, courts do not want to substitute their judgment for that of the national electorate, especially when they can be confident that they would not have the final word. Indeed, Judge Wallace stated that her decision was in part motivated by a desire to resolve any legal doubts in favor of leaving issues of who to elect to the people. Her approach is similar to the rule of lenity in criminal law, where any doubts about the meaning of a criminal statute should be resolved in favor of defendants, and I believe that favoring more democratic results is a sensible principle in interpreting election law. Also, any lower court, including a state court of last resort, that ruled that Trump could not appear on that state’s ballots would know that their decision would be reviewed (and very plausibly reversed) by the United States Supreme Court. And in thanks for their judgment, the court would face both opprobrium and a real risk of physical violence.

The substantive legal analysis of Section 3 is more straightforward than might be expected, because the text itself is not enormously complicated. For purposes of questions about Trump, Section 3 provides that anyone who has (1) “engaged in insurrection or rebellion” against the United States (2) after having “taken an oath, as a member of Congress, or as an officer of the United States . . . to support the Constitution of the United States” from (3) being “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.” These three requirements for Section 3 to bind Trump in turn give rise to three legal questions and one factual question (or application of law to facts): (1) The legal question of the scope of “engag[ing] in insurrection or rebellion”; (2) The factual question of whether President Trump’s conduct in and around January 6, 2021, meets the legal standard for “engag[ing] in insurrection or rebellion”? (3) The legal question of whether the Presidential oath to “preserve, protect and defend the Constitution of the United States” is an oath to “support” the Constitution; and (4) the legal question of whether the office of President of the United States is an “office, civil or military, under the United States.” Judge Wallace’s opinion gave careful consideration to each of these questions, and I will address each in turn.

Did Trump Engage in Insurrection?

Former President Trump’s lawyers argued that his only conduct on Jan. 6 was engaging in pure political speech, and thus could not be understood as engaging in insurrection. Judge Wallace began by considering whether speech that instructs or motivates others to commit insurrection is itself engaging in insurrection. Her conclusion was that it could be — she noted that frequently the leaders of any action act through their instructions and commands to others, not through direct physical acts. Limiting “engaging in insurrection” only to those who physically broke into the Capitol Building or personally assaulted and battered police officers engaged in insurrection during the January 6 would-be putsch would have the effect of protecting leaders and organizers of insurrection, rendering those who were most culpable least subject to sanctions. Her holding in this regard is consistent with how the law treats other conspiracies: a person who engages in a conspiracy only by speech is nonetheless fully liable for the criminal acts undertaken by members of the conspiracy in furtherance of the conspiracy. An organized crime leader who never “gets their hands dirty” still commits murder if they order someone killed and someone else pulls the trigger. So, too, an officer who orders their troops into battle to overthrow the United States engages in insurrection regardless of whether they physically swing a sword or fire a gun. In other words, incitement to insurrection is sufficient to constitute engaging in insurrection.

Turning to the factual question, Judge Wallace carefully considered the evidence about Trump’s actions and statements on and around January 6th, including evidence about how leaders of political extremist movements communicate with their followers. She looked at Trump’s awareness of the likelihood that there would be violence at the Capitol, at his explicit instructions to the people at his speech to march on the Capitol and to prevent Congress from “stealing” the election, and concluded that Trump actively incited the insurrection. In doing so, she considered prior language from Trump in which he falsely claimed that the election was “stolen” as well as other occasions on which he made statements actively encouraging violence on the part of his supporters. And during his speech on January 6, he told his listeners that they had to “as a matter of national security, . . . we fight like hell. And if you don’t fight like hell, you’re not going to have a country anymore.” He called on the listeners to march on the Capitol and said that he would join them (although he did not in fact do so). As he did so, he heard people in the crowd shouting “Take the Capitol” and “Storm the Capitol,” and did little to restrain the crowd, although he did mention that they should be peaceful. But more tellingly, he urged them on with calls to “fight” and that “we can’t let that happen,” where “that” meant the certification of an “illegitimate president.” In sum, Judge Wallace found that Trump’s actions “incited imminent lawless violence” and that “Trump engaged in an insurrection on January 6, 2021 through incitement.” (Judge Wallace also explicitly held that this was not protected by the First Amendment, engaging in an analysis of Brandenburg v. Ohio’s test for when speech is not protected because it is intended to produce imminent violence. I’m not going to dig into that analysis in detail, but if you’re interested, you can read Wallace’s opinion at page 79–95 or read the amicus brief before the Colorado Supreme Court by Floyd Abrams, Bruce Ackerman, and a host of other eminent First Amendment scholars and advocates arguing that Trump’s speech here is not protected by the First Amendment.)

Judge Wallace’s conclusion that Trump’s actions constituted “engag[ing] in insurrection” follow from the evidence she recounted. That conclusion shouldn’t surprise us — both a majority of the House and a majority of the Senate reached the same conclusion in the impeachment proceeding, and the House committee report on January 6 also agreed. The assault on the Capitol is about the clearest example of an attempted insurrection against the Constitutional order short of open civil war, and it happened because of what Trump said to his supporters.

In reaching these conclusions, Judge Wallace admitted the House committee’s report on January 6 into evidence under a hearsay exception for reports by investigations authorized by law and then weighed its contents for their probative value. I believe that evidentiary decision is likely correct, but even if it were not, it’s very likely harmless error, because she did not heavily rely on the report and would have reached the same conclusions without it. A different evidentiary decision seems more dubious to me — she took expert testimony on the history of the Fourteenth Amendment to aid her interpretation of Section 3. I’m not an expert on evidence, but generally testimony as to the content and meaning of domestic law is improper — judges are supposed to make those determinations and not delegate that to an expert. Again, however, it’s hard to see how that could be reversible error, especially when she disagreed sometimes with each expert’s arguments. A judge can consider virtually anything in developing their interpretation of the law, and it’s hard to imagine that any error in labeling it as “evidence” rather than as argumentation would create reversible error. If she had considered the same arguments and citations to the same historical materials in the context of a brief, she could draw the same conclusions.

To sum up: Judge Wallace presented strong and convincing evidence and legal holdings for her conclusion that Trump “engaged in insurrection.” Despite this, she concluded that Trump could remain on the ballot, because she resolved both of the other legal questions in Trump’s favor. While her reasoning was careful, thoughtful, and lawyerly, she got both issues wrong.

Is the President’s Oath to “Preserve, Protect and Defend” the Constitution an Oath to Support the Constitution?

Section 3 of the Fourteenth Amendment applies only to people who have as officeholders sworn an oath to “support” the Constitution. Because the presidency is the only public office Donald Trump has ever held, the question then arises whether that covers the presidential oath, which is phrased differently when defined in Article II from the general requirement of officeholders swearing oaths to “support” the Constitution contained in Article VI. Judge Wallace focused on the different language to conclude that Section 3 referred only to the oaths required in Article VI, and thus excluded the presidential oath.

While her conclusion follows the sort of careful parsing of words and comparing language that lawyers engage in all the time, it is nonetheless unconvincing. The presidential oath clearly creates a higher, more extensive duty to the Constitutional order. One can “support” the Constitution without also preserving, protecting, and defending it, but providing support is intrinsic to the notion of preserving, protecting, and defending something . To the extent that Section 3 is oriented towards oathbreakers, it would apply with full force to a former President — to fail to “support” the Constitution, as Trump did by engaging in insurrection against it, would necessarily also break the presidential oath of office. Moreover, as Judge Wallace acknowledges, Article VI doesn’t specify an exact wording for the oath to support the Constitution. An oath that phrased that requirement in a different way could be adopted by Congress or by a state and would still meet the Constitutional requirement. Indeed, if a state chose to omit the word “support” from its oath of office, but included a different phrasing that covered the same (or a broader) concept — perhaps requiring someone to “preserve, protect, and defend” the Constitution — it would satisfy the requirements of Article VI. (In a footnote, Judge Wallace directly acknowledges this: “The Court agrees with Petitioners that an oath to preserve, protect and defend the Constitution encompasses the same duties as an oath to support the Constitution.” Page 100, n. 19.)

The only way in which the presidential oath could not be covered is if the President is not an “officer of the United States” — an issue basically identical to whether the Presidency is an “office, civil or military,” of the United States. So let’s turn to that question now.

Is the Presidency an Office of the United States?

Judge Wallace also concluded that the Presidency is not an “office, civil or military,” of the United States. At first glance, this conclusion seems utterly absurd. If you asked people to name an “officer” of the United States, the President would surely be among the first officers identified (perhaps after military officers and law enforcement officers, because the use of the term “officer” is so common in those contexts). There is also a long and extensive history of people referring to the “office” of the Presidency and including the President as among the officers of the United States. And during the debate in the Senate about Section 3, one of the sponsors specifically answered the question of whether Section 3 applied to the President by stating that the Presidency would be covered by the catch-all “office, civil or military,” phrase. How could Judge Wallace have possibly concluded otherwise?

Again, Judge Wallace’s reasoning was careful and focused on the minutia of phrasing in the Constitution. First, she applied the familiar legal principle that to include some items in a list excludes similar items not included — often known by the hoary legal Latin phrase “unius inclusio, alterius excludio” (roughly, including one excludes another). She’s not wrong that the President seems strangely absent from a list that includes Senators and Representatives, presidential electors, and then the catch-all phrase “office, civil or military, under the United States.” But then, surely that reasoning would apply to the judiciary as well — why isn’t Justice of the Supreme Court included, except in the general catch-all? More to the point, the principle that including one excludes others only applies when there isn’t language sweeping in other related concepts or making it clear that a list is illustrative, not exhaustive. To conclude that a list excludes other similar items because it didn’t list them when it concludes with “any office, civil or military,” is to twist that interpretive principle beyond recognition. I find it notable that the judge did not, in her otherwise comprehensive opinion, grapple with those common-place limitations on this interpretive principle.

Judge Wallace’s other main argument that the President is not an officer of the United States is a host of provisions in the Constitution that apply to lower executive branch “officers” — e.g. the requirement that the President appoint officers with the advice and consent of the Senate, or that the President commission those officers. Even so, the conclusion that the President of the United States is not an officer of the United States is unreasonable. The clear usage from the framing of the Constitution through the period when the Fourteenth Amendment was adopted through to today is that the President of the United States is frequently referred to as an officer of the United States and as exercising the powers of the office of the Presidency. Judge Wallace acknowledges all of this in her opinion.

Can her conclusion be defended at all? Only if we put excessive weight on the idea that the Fourteenth Amendment should be interpreted to exclude only people absolutely expressly covered by its terms. Judge Wallace states that that drove, in part, her conclusion, and I believe she was correct to put her thumb on the scale of leaving unclear issues to the political process — allowing the voters to choose among any candidates who aren’t clearly excluded. However, an interpretive rule of lenity is not an authorization to reach results that are inconsistent with the language, context, and purpose of a textual provision. If there were truly doubt as to whether the President is an officer of the United States — as there might be, for example, for an officer in a public-private corporation that is both in part an instrumentality of the government and in part a private organization — applying a rule of lenity would be sensible. To claim that the President is not an officer of the United States and the Presidency is not within the phrase “any office, civil or military, under the United States” is not merely to stretch for a lenient interpretation, but rather to refuse to accept the only plausible interpretation.

Thus, I believe that Judge Wallace was wrong to conclude that Section 3 does not bar Trump from office, and the Colorado Supreme Court should reverse her judgment.

Conclusion

I don’t like reaching the conclusion that the Colorado Supreme Court should order the Secretary of State to not include Trump on the ballot. In particular, neither the idea that each state might reach its own separate conclusions on eligibility, potentially resulting in a candidate appearing on some but not all ballots nationwide, nor the prospect of the U.S. Supreme Court taking responsibility for choosing who can and cannot run for president seems like a good system. I continue to think that the best way to resolve this would have been for Congress to have declared Trump ineligible to hold office again through the impeachment process. This essay is long already, so I’ll leave the argument that the impeachment process can’t be the only means to enforce Section 3 and that Section 3’s scope is not a nonjusticiable political question for another day. But even though it would be better had the Senate convicted Trump and disqualified him through the impeachment process, I believe that Section 3 needs to be enforceable through the administrative action of election officials and the review of their decisions through state courts in order to achieve the goals and be consistent with the text of the Fourteenth Amendment.

The core premise of Section 3 is that we cannot trust people who have sworn oaths to support the Constitution and then broken those oaths by engaging in insurrection to carry out those same oaths in a future. When someone has demonstrated their willingness to breach their oath to the Constitution, they demonstrate that they cannot be entrusted with government power again. Far from being afield from these purposes, former President Trump demonstrates the wisdom of Section 3.

On January 6, then-President Trump attempted to send his followers to carry out an autogolpe — a coup by the current government against the Constitutional order — to illegitimately maintain power after losing the presidential election. In doing so, he demonstrated that he cannot and must not be entrusted with the awesome powers of the Presidency ever again. Far from being a loyal protector of the Constitutional order, Trump demonstrated that he would overthrow the most basic principles of democratic governance — that when the incumbent loses an election they will leave office peacefully — to maintain power. He has followed up on that by making overtly fascistic comments on the campaign trail, including stating plans to use the power of the federal government to attack “vermin” like his political opponents. His supporters are working on plans to make sure that they have a compliant executive branch, including the military, that will not stand up against unconstitutional actions. If the United States elects Donald Trump again, it may spell the end of American democracy as he uses all the powers of the office of the President and then some to maintain power and crush his opponents.

That concern isn’t alien to Section 3 of the Fourteenth Amendment. It’s at the heart of it. Our Constitution is just words on paper if government officials and the American people don’t give it actual meaning by committing to and following through on its grand principles. Once someone has sworn to defend the Constitution and then sought to destroy the Constitutional order and ignore having lost an election, they must not be allowed near the levers of power ever again. That’s precisely what Section 3 of the Fourteenth Amendment provides, in the aftermath of a bloody war caused by people like Jefferson Davis and Robert E. Lee breaking their oaths. And that’s why, much as we should leave many decisions to the ballot box and why many candidates I oppose absolutely belong on the ballot, Donald Trump is not eligible to be President and should be precluded from appearing on the ballot.