Supreme Court ruling in Trump insurrection case could prompt challenges down the ballot
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When the U.S. Supreme Court convenes next month to consider Trump v. Anderson, the case of whether former President Donald Trump is disqualified from the ballot in Colorado over his attempt to overturn the 2020 presidential election, their ultimate ruling will have implications well beyond Trump’s candidacy.
Court watchers see the case as a wild card testing a novel and explosive legal theory on the eligibility of insurrectionists to hold public office. Regardless of how the court rules, the decision is expected to provide clarity on an obscure provision of the Constitution that is being tested for the first time in over 150 years — and could prompt legal challenges to disqualify an entire class of Republican lawmakers who engaged in or even encouraged election subversion efforts and the attack against the U.S. Capitol that followed on Jan. 6, 2021.
Attorneys involved in the case on both sides told McClatchy that a ruling from the Supreme Court on the sweep and force of the constitutional provision — Section Three of the 14th Amendment — could have ripple effects down ballot throughout the country.
“There are any number of officials who could fall under the ambit of Section Three, and if Trump weren’t running, we probably would be litigating cases against them,” said Donald Sherman, chief counsel for the Citizens for Responsibility and Ethics in Washington, which brought the Colorado case alongside a group of law firms and is representing the plaintiffs before the high court.
Success at the Supreme Court could bolster further action, Sherman said.
“It’s not just people on the ballot,” he added. “There could be people who are in office right now who might be good targets to pursue Section Three litigation.”
Section Three of the 14th Amendment states that individuals who previously swore an oath to the Constitution, including state and federal officeholders, are disqualified from office if they “engaged in insurrection or rebellion,” or gave “aid or comfort to the enemies thereof.” In a landmark decision last month, the Colorado Supreme Court ruled that Trump was disqualified from the state ballot there over his role in the Capitol attack.
A sweeping interpretation of Section Three by the high court could affect a number of other lawmakers at the federal, state and local levels who took part in the monthslong subversion campaign — from those who provided material support to those who simply encouraged the Jan. 6 mob to disrupt Congress from certifying the election results, a constitutional duty.
“You could see other officials caught up in such a ruling,” said Andrew Rudalevige, government professor at Bowdoin College and a visiting professor at the London School of Economics and Political Science. “A lot would depend on how the court rules, and especially on how broadly it defines — if at all — ‘aid and comfort to the enemies thereof.’”
Individuals would be most vulnerable to challenges under Section Three if they personally participated in the violence of Jan. 6, or if they provided tangible support for the event, such as funding for buses to transport rioters, supplying weapons or organizing hotel rooms, Rudalevige said. The scope of individuals who were involved to that degree who have previously taken oaths of office is not definitively known.
But in an early test case, CREW brought a court challenge in 2022 against a New Mexico county commissioner who had been convicted of trespassing the Capitol grounds on Jan. 6. A judge ordered him immediately removed and disqualified from future office — the first instance of Section Three being enforced since 1869.
Another challenge that year, against Republican Rep. Marjorie Taylor Greene in Georgia, ultimately was dismissed, after a judge found insufficient evidence that Greene had personally participated in insurrection prior to taking her oath of office on Jan. 3, 2021. But the legal premise that Section Three could be applicable to Greene if she had participated was not disputed.
A favorable Supreme Court ruling for CREW could further expand the reach of Section Three.
“At the very extreme, would real-time social media cheering for the Jan. 6 attackers count as ‘aid and comfort?’” Rudalevige asked. “It would be a tough case to make, but a very broad ruling could bring it into play.”
Another provision of the Constitution, referred to as the speech and debate clause, likely shields the actions of 147 Republicans in Congress who voted to reject the election results on Jan. 6.
But several current or former officeholders encouraged overturning the 2020 election results and the events of Jan. 6, arguably outside of their official duties, including Rep. Dan Bishop, a Republican from North Carolina currently running for attorney general there. In Nov. 2020, Bishop tweeted support for Trump’s false claims of election fraud and called on his supporters to “fight” in response.
On the day of the riot outside of the Capitol, Republican Sen. Josh Hawley of Missouri held up a fist of solidarity in support of the gathering mob.
“Did Josh Hawley give aid or comfort? Yes. He put his fist in the air,” said Richard Painter, former chief White House ethics lawyer during the George W. Bush administration. “But for Josh Hawley, had he not done what he did, would the same thing have happened? Probably yes. If Donald Trump hadn’t done what he had done, it never would have happened.”
“You’ll be relying more heavily on the ‘aid and comfort’ language with respect to those people,” Painter added. “I think it’s easier to apply to Trump, because he was at the center of the whole thing.”
‘NO SLAM DUNK’
Section Three was adopted in the aftermath of the Civil War, drafted to bar a generation of Confederates who had engaged in rebellion against the Union from returning to government and continuing their fight from within.
A paper published over the summer by William Baude and Michael Stokes Paulsen, two prominent conservative legal scholars, made the case that Section Three was not exclusively written for the Reconstruction era but is alive and well today, applicable to those who participated in the 2020 election subversion effort and to any future insurrection against the Constitution.
Their paper inspired a flurry of challenges across the country and prompted the legal community to take seriously what had previously been seen as a liberal fever dream: the prospect of disqualifying Trump from the ballot altogether.
“It’s an originalist argument that those key centrists on the Supreme Court should find persuasive, if they find anything persuasive,” said Norm Eisen, White House ethics czar under former President Barack Obama and co-counsel for the House Judiciary Committee during the first impeachment of Trump in 2020.
Eisen believes it is possible Chief Justice John Roberts, Justice Brett Kavanaugh and Justice Amy Coney Barrett could be persuaded that Trump is disqualified under Section Three, swaying the court toward a dramatic decision. But he also said they could punt on the case entirely, dismissing it as a political question requiring answers not privy to the court.
“It’s no slam dunk, but nobody knows how the Supreme Court is going to rule, because we’re in the rare situation of totally untrodden territory here,” Eisen said.
If conservative justices on the court prefer to take an off-ramp rather than issue a sweeping ruling, there are plenty of opportunities.
Yet, even if the justices rule in Trump’s favor, exactly how they do so will establish a roadmap for future legal challenges based on Section Three brought against other officeholders — regarding Jan. 6, or any other, future insurrection or rebellion that might occur, experts say.
“The argument most likely to gain traction and attract a bipartisan majority — if not unanimity — is that Section Three is not self-executing. In other words, Congress must act first,” said Robert Ray, a member of Trump’s defense team during his first impeachment trial and the special counsel who investigated former President Bill Clinton as he exited office.
Congress could pass “enabling legislation generally applicable in these situations,” said Ray, who has filed an amicus brief to the Supreme Court in support of the former president.
Section Five of the 14th Amendment states that “Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.” But critics of this interpretation say that other parts of the amendment are enforced by courts on a regular basis and without congressional action — most prominently, the due process and equal protection clauses featured in Section One. And the language of Section Three itself only states that Congress has a role in lifting disqualifications, not in applying them in the first place.
The court may also hedge in its decision, avoiding a broad ruling on the facts of the case.
“The court could conclude that Colorado took reasonable and appropriate action within the law when it removed him from the ballot — not saying that Donald Trump engaged in an insurrection, but that it was within the Colorado court’s purview to take action,” said Peter Kastor, associate vice dean of research and director of undergraduate studies in history at Washington University in St. Louis. “And that could well empower similar cases in other states, related to the former president and others.”
Some legal scholars have argued that presidents do not count as “officers” under the United States, and note that Section Three does not name the presidency in an otherwise comprehensive list of offices subject to qualification. Baude and Paulsen push back against this in their paper, noting that lawmakers who ratified the amendment clarified that Section Three did indeed apply to presidents in an historical debate, and arguing it would defy logic to disqualify all but the most powerful lawmaker from office for revolting against the Constitution.
Even if the court were to rule that Section Three does not apply to the president, “it is explicit with members of Congress and other officeholders,” laying the groundwork for an array of potential litigation, Kastor said.
Others question whether an individual could be found to have participated in an insurrection or rebellion without facing criminal charges, much less a conviction, on the same grounds. But Baude, Paulsen, and the plaintiffs in the Colorado case argue that Section Three makes no such requirement, and argue that it simply issues a qualification for office — just like citizenship or age requirements — rather than exacting a punishment that requires due process.
Some scholars question who is responsible for determining whether the events of 2020 and 2021 constitute an insurrection or rebellion. Others note that bipartisan majorities of the House and Senate both declared the events of Jan. 6 to be an insurrection — and argue that anyone with the authority to uphold the Constitution, from state secretaries of state to Supreme Court justices, has the mandate and duty to enforce Section Three.
Still others question whether Trump’s public speeches and social media posts proclaiming election fraud, and encouraging his supporters to come to Washington to stop it on Jan. 6, could be protected forms of free speech.
Legal scholars across the spectrum acknowledge the sweeping language of Section Three poses conflicts with free speech protections under the First Amendment. Baude and Paulsen note that Abraham Lincoln himself questioned whether freedom of speech should prevail over the constitutional necessity to suppress rebellion, and argue that later amendments to the Constitution are designed to account for and supersede older ones. They also note that several acts of expression — conspiracy, solicitation, bribery and incitement, for example — are widely accepted as unprotected forms of speech today.
Finally, the Supreme Court could find that Section Three prevents insurrectionists from taking office, but not from running or being listed on ballots for office — an argument that could essentially kick the question down the road, should Trump win reelection in November, creating a scenario unlikely to appeal to the court.
Sherman, the chief counsel at CREW, acknowledged that Trump’s team would only have to succeed on one of these arguments to win the case — whereas his team will have to succeed on all of them.
But regardless of who wins, the outcome of Trump v. Anderson will be a landmark ruling, serving as a judicial playbook on the treatment of rebels and insurrectionists for decades to come.
“There aren’t a lot of experts in Section Three, so I’m not putting a lot of stock in what pundits have to say,” Sherman said. “A case like this presents some novel questions, and I’m confident that we’re going to present the strongest arguments.”
“It’s important for the nation to have clarity,” Sherman added. “We are prepared to accept the decision of the highest court in the land. I don’t know if I can say the same of the former president.”
