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A murder of brilliant and prominent lawyers believe they have found a legal argument to solve the political problem of Donald Trump.
First pressed by Yale Law professor Bruce Ackerman and Indiana University professor Gerard Magliocca, then taken up with law-review obsessiveness by Chicago’s Will Baude and St. Thomas’ Michael Paulsen, and now endorsed by the most prominent former conservative judge, Michael Luttig, and the most prominent liberal law professor, Harvard’s Larry Tribe, this argument says that by its own force, the 14th Amendment prohibits the election of Donald Trump as president because his acts of insurrection disqualify him from that office.
The argument is elegant and impressive. But it would be flatly wrong for any court — especially the Supreme Court — to embrace it.
The provision of the 14th Amendment that these lawyers rely upon describes a range of offices that one becomes disqualified from occupying if one, “having previously taken an oath, … shall … engage in insurrection or rebellion.” Donald Trump had taken an oath to support the Constitution. His acts leading up to Jan. 6, they say, constitute “insurrection or rebellion.” Therefore, they argue, he is disqualified from seeking office again. They ask the courts to enforce this by requiring secretaries of state to keep Trump off the ballot, with a test lawsuit in Colorado as the opening salvo.
The paradigm case that the authors of Section 3— and the state legislators who ratified it — were thinking of was the Civil War. That war involved an active insurrection against the government of the United States. Many prominent Americans, including a Supreme Court justice, renounced their allegiance to the “United States of America” and took up arms to defend a new “Confederate States of America.” Thankfully, these rebels were unsuccessful. And thankfully, among the many critical reforms that the victors added to our Constitution is Section 3. That section essayed — at the very least — to disqualify from federal office the Civil War rebels and, prospectively, anyone who tried to do the same thing again.
No one thinks Jan. 6 was a repeat of Fort Sumter. No one, that is, believes that Trump and his allies were rallying to secede from the Union. Nonetheless, the argument these lawyers press is that the words of Section 3, as understood at the time they were ratified, should reach the behavior we saw on Jan. 6. That behavior, they insist, was “insurrection or rebellion.”
Others have resisted this argument—including a co-founder of the Federalist Society who initially endorsed the idea and then changed his mind—because they don’t believe that Section 3 applies to the president. But there is a much more practical reason why it would be a mistake to apply Section 3 to the events of Jan. 6. And to see why, we need only envision a different scenario from the one that actually played out.
Imagine that on Jan. 6, Vice President Mike Pence did what Trump’s lawyer John Eastman was advising him to do: assert a constitutional authority to decide which electoral votes should be counted. Imagine he then excluded the ballots for Joe Biden in a number of critical states, and instead counted the ballots for Donald Trump in those states. And then imagine, on the basis of that count, that Pence declared Donald Trump reelected.
Most believe that at this point the Supreme Court would intervene. Yet anyone close to constitutional law recognizes that that backstop is actually quite leaky. There would be a very strong argument that the counting of electoral votes by the joint session of Congress is a political question, beyond the scope of legitimate Supreme Court review. That argument could easily have persuaded a majority of that court to stay out of the conflict, leaving Trump declared to be the next president. And with that act, the thousands surrounding the Capitol would have broken out in cheers. They would have stopped the steal, as they saw it.
What, then, would be the status of anyone who would act to resist that outcome? What is the line that would divide “insurrectionists” from protesters? If 50,000 gathered on Capitol Hill to protest the Pence coup, would that render the protesters insurrectionists under Section 3? Would they be acting to overthrow a government? Or would it require violence for resistance to become a violation of Section 3? And if so, how much violence? If protesters on the House side broke into the Capitol, would protesters on the Senate side who didn’t break in be disqualified? Or, more pointedly, would those who rallied the protesters to resist the Pence coup then be disqualified from future office?
Don’t get me wrong. I believe that those who charged the Capitol on Jan. 6 committed a crime. I believe that their crimes should be prosecuted. But I also believe that the vast majority of them thought not that they were overthrowing a government but that they were pressuring their government to do the right thing—at least as they (wrongly) saw it.
If such behavior qualifies as Section 3 “insurrection,” then every leader who might resist a future coup attempt risks disqualifying themselves from serving in any subsequent government.
This is a nightmare of uncertainty — and one that wouldn’t end with declaring Donald Trump disqualified. Do Sens. Ted Cruz and Josh Hawley, who played a pivotal role in the effort to throw out the true electoral count, qualify as insurrectionists as well? Is every member of the House who voted wrongly to reject the slate from Pennsylvania an insurrectionist? Or, more practically, is every secretary of state permitted now to make their own judgment about whether a member of Congress or a senator crossed the line from legitimate contest to insurrection, forcing federal courts to actively review the history of every member of Congress who objected on Jan. 6?
The disqualification of Section 3 makes sense in the context in which it was crafted. If you participate in an effort to overthrow a government or, through violence, to secede, you are disqualified from office in the United States government unless Congress chooses to forgive you. If you do anything less, you may well be subject to criminal law, and hopefully, to the rightful judgment of the people. But no court should transform even criminal protest and violence into a Section 3 disqualification. We should punish those who breached the Capitol on Jan. 6. I think we should also punish those who encouraged those people to believe that there was a “steal” that they should “stop.” But the act they were engaging in was not rebellion. It was an effort to assure what they wrongly believed was the rightful result. Section 3 cannot police a contest over an election.
The question is now before the courts, but Congress should stop this detour by exercising its express authority under Section 3. The Constitution gives Congress the power to waive any supposed disqualification by a two-thirds vote. No doubt, two-thirds of Congress does not support Donald Trump in the 2024 election. But Congress could act to end the distraction of this legal tussle and avoid forcing an already weakened Supreme Court from rightly ruling for Donald Trump in a context that only increases the perception of many that that court is political. Congress could unite to condemn the acts on Jan. 6 but assert that Section 3 does not reach a fight over the results of an election. That even if his acts were criminal (which I believe they were), Donald Trump is not, by those acts, disqualified from office.
That vote would then shift the fight back to the place where such battles should be waged: not among lawyers in high courts, but among ordinary citizens at the ballot box.