To hear an audio version of this essay read by the author, please click here.
Amid much media hullabaloo, a group called “Citizens for Responsibility and Ethics in Washington” (CREW) recently filed a petition in a Colorado trial court demanding that former President Donald Trump be disqualified from the Colorado presidential ballot on the grounds that he is an insurrectionist. CREW seems to exist largely to sue Republicans, especially Trump. Several years ago, for example, it launched a groundless suit accusing him of violating one of the Constitution’s Emoluments Clauses (pdf).
The CREW lawsuit is one of several seeking to disqualify Trump as an “insurrectionist” because of his actions in the wake of the popular vote in the 2020 presidential election. However, these suits face so many legal hurdles that they raise the question of whether they are really about justice or about fundraising and publicity.
This essay enumerates some of those legal hurdles.
A clarification: As regular readers of my columns know, I am not a Trump partisan. And unlike most who write in this area, my original constitutional research is not crafted to benefit particular political causes. I examine the evidence, and the chips fall where they may.
The Basis of the “Disqualification” Suits
The disqualification suits are purportedly based on Section 3 of the Fourteenth Amendment. This section disqualifies insurrectionists from holding most public offices. It reads in part as follows:
“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 . . . who, having previously taken an oath, as a member of Congress, or as an officer of the United States . . . 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 vote of two-thirds of each House, remove such disability.”
We’ll call this the Disqualification Clause.
The suits claim that Trump’s actions in challenging the 2020 election and allegedly inciting the Jan. 6 riot make him an “insurrectionist.” As we shall see, this claim rests on several dubious premises: an overly-broad definition of the constitutional word “insurrection,” an arguable reading of the phrase “office . . . under the United States,” a very cramped reading of the First Amendment, and a foolish belief that a local civil case is the way to resolve an issue of this magnitude.
Hurdle #1: Standing and Ripeness
In recent years, conservatives have been disappointed when the Supreme Court dismissed challenges to Obamacare and other overreaching federal actions because the challengers did not have “standing.” In the Trump disqualification cases, however, it is the political left that may face disappointment.
A party needs “standing” to pursue a legal case. Rules of standing are different in federal and state courts. In federal court, a plaintiff must allege that the defendant has caused him harm, or poses a threat of imminent harm. The plaintiff also must show that the court can do something about it (“redress it”). These requirements are summarized as (1) injury in fact, (2) causation, and (3) redressability.
For a plaintiff to maintain a case because of impending harm, the harm must be “imminent.” If it is not imminent the case is “not ripe for review.” This is because when the possibility of harm is contingent or far in the future, many events may intervene to prevent it. The damage is, in judicial language, merely “speculative.” If a case is not ripe for review, the plaintiff has no standing and the court will dismiss the lawsuit.
Andrew Hyman, a Massachusetts scholar who is my co-author on an unrelated project, has pointed out that cases alleging that Trump is disqualified from office are clearly not “ripe” by federal standards. Trump has not won the 2024 presidential election and may never do so. He has not even won the Republican nomination. At this point, he has not won a single Republican delegate because the first caucuses and primaries are still months in the future.
Thus, all sorts of eventualities could prevent him from winning the presidency and directly raising the disqualification issue.
That is why as Hyman observes, disqualification proceedings historically have been initiated after a candidate is elected to office, not before.
In state courts, such as the Colorado venue where CREW has filed, the rules for “standing” often are looser than in federal courts. Still, state judges generally do not hear cases where the only harm is speculative. In Colorado specifically, for a plaintiff to have standing he or she still must demonstrate harm or the threat of harm. The Colorado courts dismiss the case when purported future injury is “remote” or “overly indirect and incidental.”
The plaintiffs’ petition in the Colorado “CREW” case was, of course, drafted to allege standing in the strongest possible way. Yet even its wording illustrates the speculative, amorphous, and future nature of the alleged “harm:”
If an ineligible candidate appears on the ballot . . . the ineligible candidate would have affected the integrity and fairness of the election, and the party could end up with an ineligible nominee in the general election. . . . If Trump is on the ballot, voters who would otherwise vote for Petitioners’ candidates of choice will instead vote for Trump [how do they know? -ed.], reducing the likelihood that Petitioners’ candidates of choice will win the election. And Republican voters could be deprived of the chance to vote for a qualified candidate in the general election. [Emphasis added.]
“Would have effected”—“could end up”—“likelihood”—“would otherwise.“
No responsible court should adjudicate such questions.
If the petitioners really think they can make the case that Donald Trump personally engaged in insurrection, then their proper course is either (for reasons explained in below) to address the state legislature or wait to see if the people choose an Electoral College with a majority of Trump electors. If the people do choose an Electoral College with a Trump majority, then the petitioners can ask for expedited judicial review, including Supreme Court review.
In the highly unlikely case that Trump is both elected and disqualified, there need be no constitutional crisis: Under the 20th amendment, Trump’s vice-presidential running mate would assume the presidency.
Hurdle #2: The Disqualification Clause May Not Cover the President
Sharp-eyed readers may note that while the Disqualification Clause mentions Senators, Representatives, and presidential electors, it does not mention the President or Vice President. Those suing to disqualify Trump assume that the phrase “office . . . under the United States” includes the presidency. But some modern scholarship concludes they are wrong about that. In other words, the President may not be covered by the Disqualification Clause at all.
The drafters of the Fourteenth Amendment may have had good reasons for excluding the President from the Disqualification Clause. First, the structure of the Electoral College helps ensure that successful candidates have wide popular support among many regions of the country. The Disqualification Clause permits Congress to remove a person’s disability for a lesser office. But election to the Presidency or Vice Presidency is evidence that a higher authority—the people themselves—have forgiven a presidential or vice presidential candidate.
Moreover, there are separation-of-powers issues in requiring presidential candidates or elected presidents to petition Congress for absolution: The presidency was designed to be independent of Congress, and such a petition could place a future President in a position of subordination. It also could lead to political bargaining of the most disreputable kind.
Finally, as explained below, extending the Disqualification Clause to include the President and Vice President would create some major administrative problems.
To be clear: I am not stating definitively that the phrase “office under the United States” excludes the presidency. This issue still is a matter of dispute. But there is a respectable argument that it is not, and those arguing for disqualification will have to overcome that argument.
Hurdle #3: What History Tells Us About the Meaning of “Insurrection”
The word “insurrection” appears four times in the Constitution: once in the original Constitution (Article I, Section 8, Clause 15) and three times in the Fourteenth Amendment.
Judges and lawyers interpret words in legal documents in accordance with the circumstances in which they were adopted. To those who adopted the original Constitution, an “Insurrection” was a sustained armed uprising like the American Revolution or Shays’ Rebellion. The Fourteenth Amendment was proposed in 1866 and fully ratified in 1868. Its references to “insurrection” and “rebellion” were triggered by a Civil War in which over 600,000 Americans had died.
By these standards, the Jan. 6, 2021 incident was very small potatoes. Although Trump’s opponents try to obfuscate these facts, almost all the demonstrators were unarmed and they killed no one; only a small percentage of them actually entered the Capitol—and many of those were effectively invited in by Capitol security people; and, once inside, most just milled around aimlessly.
I mention these facts not to excuse the rioters, but to point out that the incident bears no serious relationship to “insurrection” as the Constitution employs the word. Indeed, it also bears no serious relation to “insurrection” as modern commentators usually employ the word: It has not been applied, for example, to the recurrent big-city riots and assaults on government buildings associated with leftist causes since 1968, many of which caused far more damage than the Jan. 6 riot.
Those claiming Trump was engaged in an insurrection also cite other aspects of his conduct that traditionally have nothing to do with insurrections. These include (1) his contention that election irregularities changed the results in several key states, (2) his demands for reviews and recounts, (3) the creation of alternative slates of electors in states certified for Joe Biden but that Trump believed he carried, and (4) his assertion that the Vice President, as chairman of the joint session of Congress, could delay the electoral vote count pending an investigation.
The claim that activities other than the Capitol riot were part of an “insurrection” rests largely on uncritical use of the highly partisan congressional January 6th report and on the narratives of media hostile to Trump—the same media that claimed just hours after the voting and before any investigation was possible that there was “no evidence” of election irregularities. Those of us familiar with the other side know that there certainly was evidence of serious irregularities in key states. There was enough evidence that Trump could have believed in good faith that they affected the outcome.
Those who characterize Trump’s statements as pure lies are either ignorant or suppressing information they do not want to know.
As for demands for reviews and recounts, they are, of course, features in every disputed election. The creation of alternative slates of electors was an effort to follow a precedent set in the disputed 1876 and 1960 presidential elections. And while I disagree with Trump’s opinion that the Vice President could delay the vote count, this opinion stemmed from a distinguished legal scholar’s advice that Trump had every right to believe.
All of these activities (except the riot, of course) suggest an effort to “work” the existing procedures, not an effort to overturn them. Donald Trump has his faults, but he is not Jefferson Davis—or even Daniel Shays—as much as those who hate him make him out to be.
Hurdle #4: What the Constitution’s Text Tells Us About the Meaning of “Insurrection”
Judges and lawyers also deduce the meaning of words in a legal document from their context in the document. Thus, when trying to define the scope of a word, we may examine other words surrounding it or with which it is coupled.
The Constitution couples the term “Insurrection” with the term “Invasion.” Specifically, Article I, Section 8, Clause 15 grants Congress power “[t]o provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.”
At least three federal appeals court decisions have limited the constitutional term “Invasion” to an armed incursion by foreign troops (pdf) (pdf) (pdf). This suggests that “Insurrection” is of the same quality—a coordinated, sustained, armed attack by soldiers or people acting as soldiers—as in the American Revolution, Shays’ Rebellion, or the Civil War. To be sure, I do not agree with those appeals court decisions. I believe the historical evidence shows that the Constitution uses “invasion” in a broader sense. Nevertheless, the three appeals court cases present yet another obstacle to the Trump disqualification lawsuits.
It is one of the ironies of politics that many of the anti-Trump people who construe the constitutional term “insurrection” very broadly insist on construing “invasion” very narrowly. In their mind, unauthorized entry into the Capitol by 2000 people counts as an insurrection but the unauthorized flood into the country by millions of people does not count as an invasion.
The Constitution’s text suggests that the truth may be the other way around. The Fourteenth Amendment, couples “insurrection or rebellion” with giving “aid or comfort to the enemies [of the United States].” That “aid and comfort” phrase, is borrowed from the original Constitution’s definition of treason (Article III, Section 3, Clause 1). This definition was designed to limit treason to either (1) levying war against the United States or (2) directly aiding those who were doing so.
Angry speech, isolated riots, and even election interference can be crimes, but they are neither treason nor insurrection.
Hurdle #5: The First Amendment and Free Speech
The First Amendment protects “the freedom of speech.” Whether you agree with them or not, nothing in Trump’s recorded statements exceed the First Amendment’s protection. During Trump’s second impeachment trial, the Democratic leadership contended that he “incited” the Jan. 6 crowd. But the Supreme Court has held that for incitement to fall outside the protection of the First Amendment, it must be a call to “imminent lawless action and . . . likely to incite or produce such action”(pdf).
Suppose that on Jan. 6 Trump had spoken on the Capitol steps, ginned up the crowd, and shouted something like, “Let’s take it over! Let’s stop the phony electoral vote count! Now! Follow me! For the people!” That would have been unlawful incitement.
But Trump was over a mile away when he spoke to the Jan. 6 crowd. The timing shows the riot was pre-planned and not a response to Trump’s speech. And far from urging violence, Trump specifically told the crowd to march “peaceably and patriotically” to the Capitol. In doing so, he followed a tradition followed by many other leaders—including, notably, Martin Luther King.
Trump-haters often unconscionably omit his “peaceably and patriotically” words when describing Jan. 6. The petition in the recently-filed Colorado lawsuit also omits them, as does the academic study upon which it is largely based.
Hurdle #6: Who Decides?
The Fourteenth Amendment disqualifies from federal or state office persons who “shall have engaged in insurrection.”
But who determines whether a person engaged in insurrection?
No court has ever convicted Trump of criminal insurrection. As I understand it, no prosecutor has even charged him with criminal insurrection.
But can the issue be decided in a civil case? The answer is almost certainly “no.”
First: Disqualification from office renders one a second-class citizen, a status normally associated with a felony conviction. The constitutional requirement of due process of law suggests any proceeding that leads to disqualification should be conducted under the very high standards of proof used in criminal trials rather than the lenient standard employed in civil cases.
Second: In court proceedings, important interests may go unheard. In the Colorado case, for example, the petitioners and one of the two respondents are all Trump critics. Trump stands alone in the case. Unrepresented are the state legislature, pro-Trump voters, and political committees who support his candidacy.
Third: The Constitution does not place the responsibility for adopting the “Manner” of conducting a state’s presidential election on any court. It places that responsibility in the state’s legislature (Article II, Section 1, clause 2). You can make a case, therefore, that the Constitution commits a decision to disqualify a presidential candidate from a state’s ballot to that state’s legislature—subject, of course, to the Fourteenth Amendment power of Congress to remove the disability. If so, disqualification cases are “non-justiciable,” not subject to any court review.
Fourth: On the other hand, even lodging the decision in state legislatures is problematic. The presidency is a national office. If a state legislature (or court) disqualifies a candidate in its state, while other state legislatures (or courts) do not, the result could be chaotic. Those adopting the Fourteenth Amendment surely did not intend such a result. Indeed, this is further evidence that the Fourteenth Amendment excludes the President and Vice President from the Disqualification Clause.
Fifth: One might argue that Congress is the entity that decides a candidate is disqualified. But the Fourteenth Amendment gives Congress no such power. It grants only power to remove a disqualification. Anyway, leaving the decision with Congress is an open invitation to political abuse and to destruction of the independence of the presidency.*
Possibly the best resolution of the “Who decides?” conundrum is that a candidate is disqualified if he or she is duly convicted of a crime of insurrection by proof beyond a reasonable doubt. Such a decision would have national effect because of the Constitution’s Full Faith and Credit Clause (Article IV, Section 1).
But of all the methods of resolution, a civil case is the worst. No responsible court should hear such a case, and no responsible lawyer should bring it.
*Some may argue that Section 5 of the 14th anendment gives Congress power to disqualify a person. That section reads, “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” However, this is an “incidental powers” clause—meaning that it covers certain matters subordinate to the powers granted in the text. A power to disqualify is not subordinate to the power to remove a disqualification. This is especially important because the grant to Congress to remove a disqualification implies a conscious decision NOT to give Congress power to disquality.