There’s much ado about Section 3 of the 14th Amendment to the Constitution these days.
Six Colorado residents (four registered Republicans and two unaffiliated voters) have sued Donald Trump and Colorado’s secretary of state to bar the former president from the state’s ballot under Section 3. The plaintiffs are supported by an organization called Citizens for Ethics in Washington (CREW).
And just today, the liberal group Free Speech For People filed another Section 3 disqualification case in Minnesota state court. The action was filed on behalf of eight Minnesota voters, including a former GOP-appointed state Supreme Court justice, a former Democratic secretary of state and an Iraq War veteran who ran his county GOP chapter.
Even if Donald Trump is convicted of the 91 felony counts, 44 federal and 47 state, where he stands charged, he is still qualified under the Constitution to run for and become the 47th president of the United States. If he is disqualified under Section 3, however, he doesn’t even get out of the starting gate.
That section provides, in pertinent part, that: “No person shall … hold any office, under the United States, … who, having previously taken an oath, as … an officer of the United States, … to support the Constitution … shall have engaged in insurrection or rebellion against the same [i.e., the Constitution], or given aid or comfort to the enemies thereof” (italics mine).
Originalists are not supposed to interpret the Constitution by reference to the intent of the framers, but to what was the original understanding of the words the framers used. So let’s give it a shot. Section 3 of the 14th Amendment was designed in 1868 to address a problem arising out of the Civil War. Even after Union army put down the rebellion, Southern states sent to Congress men who had violated previously sworn oaths to support the U.S. Constitution
Section 3 responded to that problem, enacting a sweeping disqualification from federal office of those who had, as officers in the federal government prior to the war, sworn required oaths of loyalty to the Constitution and subsequently engaged in “insurrection or rebellion” against the government or given “aid or comfort” to persons engaged in such acts of insurrection or rebellion. The conduct of Donald Trump before, during and after Jan. 6 fits the definition neatly.
The Colorado lawsuit points out that the Jan. 6 assault has been referred to as an insurrection by all three branches of government, and Trump was impeached by the Democratic-led House on a single article charging him with “incitement of insurrection.” He was acquitted by the Senate, though seven Republicans joined all 50 Democrats in voting that the former president was “guilty” on the impeachment charge.
In one corner of the debate over Section 3 are conservative legal thinkers William Baude and Michael Stokes Paulsen and esteemed retired federal judge J. Michael Luttig, with icing on the cake provided by liberal professor Laurence Tribe of Harvard Law School.
In the opposite corner is Trump, who has said flatly that there is “no legal basis” to use the 14th Amendment to remove him from the ballot — but of course Trump has said a lot of things. Trump’s conclusion has been supported by a smattering of right-wing lawyers, pundits and law professors.
Both Luttig and Tribe say they “have been very disappointed to read the many breezily considered and written ‘drive-by claims’ by lawyers and, regrettably, even by purported legal scholars, that Section 3 does not apply to the former president.”
One of these “drive-by claims” is made by former Attorney General Michael Mukasey in a Wall Street Journal opinion piece. He makes the strained argument that Trump cannot be disqualified by Section 3 because the president is not an “officer of the United States” because he is elected, not appointed. There is nothing in the language of the 14th Amendment that would support this conclusion.
As Tribe points out: If the precise provision (Article II, section 1) of the Constitution that creates the presidency explicitly refers to that position as an “Office,” then how can the holder of that Office not be an “officer” of the United States under that very same Constitution? Indeed, Article II of the Constitution refers to the “Office” of President nine times.
Mukasey cites an 1888 Supreme Court case, involving the princely sum of $83.28, for the proposition that “unless a person in the service of the government … holds his place by virtue of an appointment … he is not strictly speaking an officer of the United States.” This case, however, did not involve the Constitution. It did involve an elected official. It did involve a statute providing for reimbursement of travel expenses to certain duly appointed naval officers, but not to the plaintiff, a paymaster’s clerk.
What Mukasey overlooks is that Trump has already claimed in court that he is or was an officer of the United States, and has even cited case law where he himself removed a civil action to federal court as an elected officer of the U.S.
In his petition for removal in the New York indictment charging falsification of business records in connection with a hush money payment to a porn actress, Trump unsuccessfully sought removal to the federal court. There he alleged he was formerly an “officer of the United States” and cited law permitting federal-officer removal for elected members of Congress.
There is recent precedent for this disqualification strategy. Couy Griffin was an elected commissioner for Otero County, New Mexico. Turns out he joined in the Jan. 6 insurrection at the Capitol. A group of New Mexico citizens, also supported by CREW, filed an action against Griffin under New Mexico law, seeking his removal from office. The New Mexico district court took evidence, received legal arguments and then concluded that Griffin was disqualified under Section 3.
Of course, the debate assumes that Trump engaged in an insurrection or rebellion on Jan. 6 or aided and abetted those who did. This is a matter that will have to be resolved at a trial. But, as Tribe notes: “I think it’s clear to most people that if Trump doesn’t qualify [for that] nobody would.” He continues, “It’s important for the survival of the republic that someone who has shown himself … to be an insurrectionist against the Constitution not get another chance to try.”
The bottom line: The disqualification argument has legs, and is a serious lawsuit. The president is not an “officer” of the United States? Apple sauce.
James D. Zirin, author, and legal analyst, is a former federal prosecutor in New York’s Southern District. He is also the host of the acclaimed public television talk show and podcast Conversations with Jim Zirin.