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Disqualifying Insurrectionists from Office

Overview

Section 3 of the Fourteenth Amendment disqualifies from public office any individual who has taken an oath to uphold the U.S. Constitution and then engages in insurrection or rebellion against the United States, or has given aid or comfort to those who have. 

Officeholders who bear responsibility for the January 6th insurrection may therefore, under Section 3, be disqualified from future office, including former President Trump. Protect Democracy conducted a legal analysis of Section 3 in the context of January 6th and, together with a coalition of other legal and advocacy organizations, urged Congress to recognize that Section 3 prohibits former President Trump from seeking future office.

Along with the legal analysis and coalition letter, you can find a fact sheet titled “Disqualifying President Trump under Section 3 of the Fourteenth Amendment” in the following sections.

Fact Sheet

Disqualifying President Trump under Section 3 of the Fourteenth Amendment

President Trump’s incitement of the January 6 insurrection has led to much discussion about whether he can be disqualified from holding future office. While most attention has focused on impeachment, Section 3 of the Fourteenth Amendment provides another means for Congress to hold President Trump accountable and bar him from holding future office. This document answers some recurring questions about how Congress could use Section 3 to prevent President Trump and others involved in the January 6 insurrection from holding office in the future. Download fact sheet here. 

OVERVIEW OF SECTION 3 OF THE FOURTEENTH AMENDMENT

When Section 3 was initially adopted to prohibit former Confederate officials from serving in office, Congress intentionally included language that would apply to future acts of insurrection, rebellion, and treasonous behavior. The provision bars certain current and former government officials from holding a federal or state office if they engage in insurrection or rebellion against the United States or aid its enemies, unless Congress grants an exception. In practice, Section 3 has been used only rarely — in large part because Congress granted amnesty in 1872 to most former confederates excluded from office by Section 3. Since then, Section 3 has been invoked only once, in 1919.

STEPS CONGRESS CAN TAKE UNDER SECTION 3 TO DISQUALIFY PRESIDENT TRUMP FROM FUTURE OFFICE 

Congress has several mechanisms available to enforce Section 3. Specifically, Congress can:

  • Pass a joint or concurrent resolution with factual findings regarding President Trump’s conduct and concluding that Section 3 disqualifies President Trump from holding office in the future;
  • Pass targeted enforcement legislation containing factual findings and permitting the Attorney General to bring a court action to obtain a judgment that Section 3 bars President Trump from holding future office; 
  • Pass general enforcement legislation that permits the Attorney General (and perhaps other actors, such as state attorneys general) to bring a lawsuit to disqualify anyone, including but not limited to President Trump, who violated Section 3.

These options are not mutually exclusive. Congress can choose to take only one of these actions, or it can decide to take all actions simultaneously or to take these actions over a period of time. But if conviction fails, the best approach would be for Congress to pass both enforcement legislation and a resolution finding that President Trump’s conduct violated Section 3 — either in a single legislative vehicle or separately. 

CONGRESSIONAL ACTION COULD HELP PREVENT PRESIDENT TRUMP FROM RUNNING FOR OFFICE.

Depending on the specific actions Congress takes, Congressional action could result in a range of hurdles to President Trump’s future efforts to run for office. If Congress creates an enforcement process (either generally or specifically for President Trump), then the Attorney General could bring affirmative litigation to obtain a court order that President Trump is disqualified from holding future office. And factual findings from Congress concluding that President Trump violated Section 3 likely would be entitled to deference from courts. 

If Congress were to pass only a resolution, that action could still pose obstacles to President Trump’s future run for office. The resolution would create a cloud of illegitimacy over his campaign and could deter supporters, staffers, and donors. The resolution could also support other actors who might seek to enforce Section 3 against President Trump—for example, state officials who refuse to list him on the ballot based on an assessment that he is not constitutionally qualified to hold office.

DID PRESIDENT TRUMP ENGAGE IN “INSURRECTION OR REBELLION” UNDER SECTION 3?

Probably yes. First, the events of January 6 qualify as an “insurrection or rebellion.” While those terms are not defined in Section 3, they certainly encompass a violent uprising that seeks to prevent a peaceful transfer of power, which is fundamental to our constitutional democracy. Second, while President Trump did not himself storm the Capitol on January 6, his actions in the days, weeks, and months leading up to January 6—and even while that day’s events were ongoing—were central to the insurrection. Furthermore, he refused to act to stop the violence once it had started despite having the authority and power to do so. The drafters of the Fourteenth Amendment understood Section 3 to apply not just to those who take up arms against the United States, but also—perhaps especially—to those who help to organize and incite insurrection and rebellion.

IS IMPEACHMENT FOLLOWING CONVICTION A BETTER WAY OF DISQUALIFYING PRESIDENT TRUMP? 

Yes. Disqualification via impeachment and conviction is the better path because it would necessarily involve a strong show of bipartisanship and would be unassailable as a legal matter. Conviction and disqualification on impeachment charges by the Senate would be the surest method of ensuring President Trump is disqualified from holding future federal office.

IF THE PRESIDENT IS NOT CONVICTED BY THE SENATE, CONGRESS CAN STILL ACT UNDER SECTION 3.

The Senate failing to convict President Trump of the impeachment charge does not prevent Congress from invoking its powers under Section 5 of the Fourteenth Amendment to conclude that President Trump is disqualified from office. Disqualification upon impeachment and conviction is entirely separate from disqualification under Section 3 as a matter of constitutional law. In any event, failing to convict does not constitute an acquittal on the merits.

ENFORCEMENT LEGISLATION FOR OTHER PEOPLE WHO VIOLATED SECTION 3 ON JANUARY 6

After the Civil War, Congress passed legislation that created a judicial process to bar members of the Confederacy from holding office. Congress can do that again not only for President Trump but also for all other people who had taken an oath to support the Constitution and engaged in the January 6 insurrection. Specifically, Congress can pass general enforcement legislation that allows the Attorney General (and perhaps other actors, such as state attorneys general) to initiate judicial proceedings against these individuals when evidence reveals that they engaged in insurrection or rebellion. That would potentially apply to a number of people involved in the January 6 insurrection, including President Trump. If Congress passes such general legislation, then it should still pass a resolution concluding that President Trump violated Section 3 to strengthen any future court case seeking to disqualify him. 

CONGRESSIONAL ACTION UNDER SECTION 3 WOULD NOT VIOLATE THE BILL OF ATTAINDER CLAUSE. 

The Constitution bans bills of attainder in Article I, section 9, clause 3. The Supreme Court has explained that a bill of attainder is “a law that legislatively determines guilt and inflicts punishment upon an identified individual without the provisions of the protections of a judicial trial.” Nixon v. Administrator of General Services, 433 U.S. 425, 468 (1977). First, any resolution that merely expresses Congress’ view that Section 3 disqualifies President Trump from holding office is not a bill with the force of law within the purview of the Bill of Attainder Clause. Second, any law establishing judicial mechanisms to determine whether President Trump fell under the purview of Section 3 and is thus disqualified from office would not deprive him of judicial protections. Even if Congress expressed its view within that same legislation, ultimately the application of law to fact would be undertaken and reviewed by the judiciary. 

Download fact sheet here. 

Legal Analysis

Protect Democracy conducted a legal analysis of Section 3 in the context of January 6th which provides the legal justification for Congress to prohibit former President Trump from seeking future office.

For a PDF of this document, click here.

 

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