I have read with some interest what commercial media companies have published about the position espoused by some that the Section 3 of the Fourteenth Amendment disqualifies Donald Trump from being reelected as President of the United States due to his actions with respect to the January 6, 2021, attack on the Capitol. Let me put my biases right up front. I believe neither that Trump won the 2020 election nor that he should win (or even run) in the 2024 election, so I have read such articles with some interest. Ultimately, I have been disappointed (but not entirely surprised) that they tend to deal with personalities, labelling of those who espouse their favored position as experts, or just re-hashing of prior reports. Now that an advocacy organization, Citizens for Responsibility and Ethics in Washington (CREW) has filed a lawsuit (press release | petition) in Colorado state court to obtain a definitive ruling, it’s time to discuss some of my initial thoughts about this issue.
The constitutional text 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.
So, disqualification requires the following to be true:
- that the President is an officer of the United States
- that Donald Trump took an oath to support the Constitution of the United States
- that the events of January 6, 2021, amounted to an “insurrection,” and
- that Donald Trump “engaged” in the insurrection.
(Note that I am dismissing any contention that the events of January 6 constituted a “rebellion” or that Trump’s conduct constitutes “aid” or “comfort” to the “enemies” of the United States.)
There are non-frivolous (but not necessarily convincing) arguments against each of these points, and I propose to discuss them in somewhat more detail in subsequent posts.
I don’t know anything about the way pleadings like a petition are generally worded in Colorado, but this one reads more like a legal brief. Whatever its formal merits as a legal pleading, this means that the arguments on these points are spelled out pretty clearly. After reading it there are some good arguments about the first three elements, but I’m not quite there yet with the proof that Trump “engaged” in the insurrection by means of his false claims and incendiary remarks.
The issue is very important and needs to be decided based upon the constitutional text, not one’s position on whether Trump should or should not be reelected, but it’s unrealistic to expect most media coverage to focus on the actual legal issues rather than politics and personalities.
Jay Bohn
September 7, 2023