Efforts to Invoke Insurrection Clause Against Trump Get Their Day In Court

A little-known section of the 14th Amendment will take center stage this week in two separate trials to determine whether former President Donald Trump, the leading GOP presidential nominee, will be allowed on the ballot come 2024.

Section 3 of the 14th Amendment is a Civil War-era relic meant to prevent Confederate soldiers from gaining office and undermining Reconstruction efforts. It states that no one can hold office who has previously taken an oath to support the Constitution but who then engages in an insurrection or provides help to enemies of the United States.

In Colorado and Minnesota, judges will begin to weigh whether Trump is disqualified from running for president given his involvement in the violent insurrection at the Capitol on Jan. 6, 2021.

Legal experts have sparred over whether the constitutional clause applies to Trump, and even those who say it’s a legitimate challenge acknowledge that it’s a long shot. But what started as a widely dismissed – even wacky – thought exercise has survived several legal hurdles in the last month. Now its merits are set to be debated in two courtrooms in different states as similar challenges get underway in other states to keep the former president off the ballot next year.

In Denver, a judge beginning Monday will oversee a week-long hearing at which legal experts and scholars will explore whether the Jan. 6 riot at the Capitol qualified as an insurrection and whether Trump’s actions – including pressuring state officials to reverse the election results and telling armed supporters ahead of the riot to “fight like hell” and encouraging them to go march on the Capitol.

The hearing stems from a lawsuit filed by Citizens for Responsibility and Ethics in Washington, a liberal watchdog group, on behalf of six Republican and independent voters, including a former GOP leader in the Colorado legislature.

“Trump’s efforts to overturn the 2020 election and interfere with the peaceful transfer of power were part of an insurrection against the Constitution of the United States,” Mario Nicolais, the attorney arguing the case, wrote in the lawsuit. “By instigating this unprecedented assault on the American constitutional order, Trump violated his oath and disqualified himself under the Fourteenth Amendment from holding public office, including the Office of the President.”

The lawsuit recently survived an onslaught of appeals by Trump’s legal team, who sought to argue that the case was procedurally flawed and should be shut down.

Meanwhile, the Minnesota Supreme Court will hear arguments on Thursday about whether Section 3 can be used to keep Trump off the ballot in a case brought by a former secretary of state, a former Minnesota Supreme Court justice and a former co-chairman of a county Republican Party, among others.

Similar challenges are also underway in a handful of other important electoral states, including Michigan, New Hampshire, New Jersey and Arizona

Trump, for his part, has characterized the lawsuits as “nonsense” and “election interference.” His attorneys argue that he never engaged in an insurrection and that Section 3 cannot be used to keep him off the ballot since that is the responsibility of Congress.

“The U.S. Constitution commits to Congress and the electoral college exclusive power to determine presidential qualifications and whether a candidate can serve as President,” wrote Scott Gessler, Trump’s attorney and former Colorado secretary of state, in a legal filing. “Courts cannot decide the issue at the heart of this case.”

The attempts to keep Trump off the ballot are an extraordinary new narrative in the already chaotic circus that envelops the former president and his reelection efforts.

Trump has been inundated in legal challenges for months. He’s currently facing 91 criminal charges stemming from four indictments and a $250 million fraud lawsuit. Trump has maintained innocence on all fronts and pleaded not guilty to charges across in all four indictments.

Two of those indictments are related to his efforts to overturn the 2020 presidential election: In Washington, D.C., Justice Department special counsel Jack Smith has accused Trump of undermining democracy by seeking to overturn his loss in the presidential election and inciting a mob of his supporters to storm the Capitol in order to disrupt the election certification. And in Georgia’s Fulton County, District Attorney Fani Willis has charged Trump and 18 co-defendants in a sweeping racketeering scheme related to their efforts to overturn the election results in that state.

While constitutional law experts are divided on the issue, many say there’s legitimacy to Trump’s claim that keeping the leading Republican nominee for president off the ballot is “simply wrong and un-American.” And nearly all agree – even those who believe that the arguments for disqualification are strong – that the challenges face an uphill climb in every state, largely due to this being uncharted territory.

Undoubtedly, the proceedings will explore in depth whether the Jan. 6 riot was indeed an insurrection and the degree to which Trump fomented it. But for many constitutional lawyers, the interpretation turns on more esoteric points of the law.

The section itself states: “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.”

A widely circulated, 126-page law journal article posted in August written by two prominent conservative law professors, William Baude and Michael Paulsen, concluded that Trump must be barred from the ballot due to the clause.

In their article, published in the University of Pennsylvania Law Review, Baude and Paulsen said they believe the meaning is clear.

“Taking Section Three seriously means excluding from present or future office those who sought to subvert lawful government authority under the Constitution in the aftermath of the 2020 election,” they wrote.

The paper carried great sway in both legal and conservative circles. But in a rebuttal of sorts published on the opinion pages of The Wall Street Journal in September, former Attorney General Michael Mukasey took issue with the interpretation. He noted that while a “member of Congress” who engaged in insurrection or rebellion is clearly barred by the language from future service along with those in a handful of other positions, the president is not among those named. In fact, the only category in the relevant part of the section that might apply to the presidency would be the reference to “an officer of the United States.” Mukasey goes on to question whether, in constitutional terms, the president can be considered “an officer of the United States” and thus whether the section would apply to a former president seeking the White House.

He argues that the distinction is supported as recently as in a Supreme Court ruling by Chief Justice John Roberts in 2010 – that in other areas of the Constitution, “officer of the United States” applies to appointed, not elected, positions and that they even take an oath of office outlined in a separate section of the document.

“Mr. Trump took an oath as president pursuant to Article II, not as an officer pursuant to Article VI. Because the Insurrection Clause applies only to those who have taken an oath ‘as an officer of the United States,’ he can’t be barred by that clause from serving in any capacity,” Mukasey wrote.

The judge overseeing the lawsuit in Colorado has said she plans to make a ruling by mid-November. The losing side can – and is widely expected to – challenge the ruling at the Colorado Supreme Court and the U.S. Supreme Court.

Trump is sure to appeal any ruling that boots him from the ballot, setting up another unprecedented political paradigm involving the former president, who himself elevated three sitting members of the high court, sealing its conservative supermajority makeup – a court that may soon be asked to rule on whether Trump is allowed on the ballot.