“I, _____, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.”
In the months of June through September, 2023, a number of lawsuits have been filed in some states to keep Donald J. Trump off of the Nov. 4th, 2024, presidential ballot. They include Colorado, Minnesota, New Mexico, Michigan and Oklahoma. Secretaries of State, Attorneys of General and state election boards in other states are also considering actions to disqualify Trump.
The basis for all this activity is Section 3 of the 14th Amendment, as follows with the author’s underscores added for the pertinent parts:
14th Amendment Section 3
“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.”
One of the sparks for using Section 3 to dislodge Trump from the 2024 ballot came from attorneys William Baude of the University of Chicago and Michael Stokes Paulsen of the University of St. Thomas, who studied the issue for more than a year. Their findings will be published next year in The University of Pennsylvania Law Review. Both lawyers are members of the conservative Federalist Society.
In an abstract of this forthcoming article the authors make these critical points:
1. Section Three remains an enforceable part of the Constitution, not limited to the Civil War, and not effectively repealed by nineteenth century amnesty legislation.
2. Section Three is self-executing, operating as an immediate disqualification from office, without the need for additional action by Congress. It can and should be enforced by every official, state or federal, who judges qualifications.
3. To the extent of any conflict with prior constitutional rules, Section Three repeals, supersedes, or simply satisfies them. This includes the rules against bills of attainder or ex post facto laws, the Due Process Clause, and even the free speech principles of the First Amendment.
4. Section Three covers a broad range of conduct against the authority of the constitutional order, including many instances of indirect participation or support as “aid or comfort.” It covers a broad range of former offices, including the Presidency. And in particular, it disqualifies former President Donald Trump, and potentially many others, because of their participation in the attempted overthrow of the 2020 presidential election.
The 14th Amendment was adopted on July 9, 1868. Section 3 was added to keep former Confederate officials from gaining power in the reconstructed government following the Civil War. While some have argued that this section is therefore irrelevant because it only applied to former Confederates, others have countered that Confederates are not specified and, besides, as a part of the constitution, it is in effect until rescinded or amended. And it is also, as Baude and Paulsen argue, self-executing.
It is clear then that those who meet the conditions of Section 3 would be ineligible for holding elective office. The behavior of former president Trump while he was in office appears to meet those criteria.
On Sept. 6th, a lawsuit was filed in Oklahoma that invokes Section 3. The Oklahoma Republican Party Chairman Nathan Dahm’s response to the lawsuit was that
“President Trump has not been found guilty of insurrection. In fact, no one has been charged with insurrection, even though there is a specific federal statute on insurrection.”
Chairman Dahm’s response is typical of those in other states. However, a conviction of the federal insurrection statute is irrelevant. Section 3 says only that one “shall have ENGAGED in insurrection or rebellion. . . or given AID and COMFORT” to the insurrectionists.
Was Trump engaged in the insurrection of Jan. 6th, 2021? Or was it a rebellion? He told the crowd before sending them to the capital:
“We fight like hell. And if you don’t fight like hell, you’re not going to have a country anymore,”
But he also said:
“I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.”
But it’s obvious that the crowd heard the first plea and ignored the second one. If he had meant them to be peaceful and patriotic, he would have stopped it immediately rather than letting it go on for several hours.
Of course, the lawyers will try to parse the words “insurrection” and “rebellion.” but, parts of both seem to apply. From The Law Dictionary, the definitions are:
Insurrection – A rebellion, or rising of citizens or subjects in resistance to their government. See INSURGENT. Insurrection shall consist in any combined resistance to the lawful authority of the state, with intent to the denial thereof, when the same is manifested, or intended to be manifested, by acts of violence.
Insurgent – One who participates in an insurrection; one who opposes the execution of law by force of arms, or who rises in revolt against the constituted authorities
Rebellion – Deliberate, organized resistance, by force and arms, to the laws or operations of the government
Trump’s defenders may say the Jan. 6th event was a “riot.” But the legal definition of a riot is
“Riot – A violent disturbance of the public peace by three or more persons assembled for a common purpose.”
If the common purpose is to interfere with a government function, then the terms insurrection and rebellion are more descriptive of what happened on that infamous day.
According to a PBS article on December 23, 2022
“The House Jan. 6th Committee’s final report asserts that Donald Trump criminally engaged in a ‘multi-part conspiracy’ to overturn the lawful results of the 2020 presidential election and failed to act to stop his supporters from attacking the Capitol. . . The panel also notes in that section that the 14th Amendment to the U.S. Constitution (referring to Section 3) holds that anyone who has taken an oath to uphold the Constitution can be prevented from holding office for engaging in insurrection or rebellion.”
In fact, members of the Proud Boys and Oath Keepers were convicted for their involvement in the Jan. 6th event for the charge of “seditious conspiracy.” They were also found guilty of conspiracy to obstruct an official proceeding, obstruction of an official proceeding, and conspiracy to prevent Members of Congress from discharging their official duties. Similar charges were filed against other participants in the Jan. 6th attack on the Capitol.
During those trials, Trump was repeatedly identified as the instigator. As a causal agent, he was surely “engaged” within the common meaning of “engage,” and the meaning as used in Section 3. The Oath Keepers founder Stewart Rhodes was sentenced to 22 years in prison for seditious conspiracy. And he wasn’t even at the scene on that day. If one is part of a conspiracy, then one must necessarily be engaged – and does not need to be present when the conspiracy plays out.
It should be noted that the seditious conspiracy charge implies insurrection and rebellion. It is defined in 18 U.S. Code § 2384:
“If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined under this title or imprisoned not more than twenty years, or both.”
But, if the insurrection charge isn’t enough, Trump gave, at a minimum, “aid and comfort” to the January 6th insurrectionists by failing to use his power to stop it and thereby prevent the deaths, and injuries and desecration of the Capitol building that took place on that day. And he allowed them to bypass security checks so they could bring in weapons such as guns, baseball bats, and pepper spray. That is, he enabled them to commit the violent insurrection. He told them to “FIGHT LIKE HELL!” And that alone is enough to disqualify him from holding public office under Section 3.
Trump’s behavior is consistent with the legal definition of “aid and comfort.” According to the Legal Dictionary, that term means, with the author’s underscores added:
”AID AND COMFORT. The constitution of the United States, art. 8, s. 3, declares, that adhering to the enemies of the United States, giving them aid and comfort, shall be treason. These words, as they are to be understood in the constitution, have not received a full judicial construction. They import, however, help, support, assistance, countenance, encouragement. The word aid . . . is explained by Lord Coke (2 just. 182) as comprehending all persons counselling, abetting, plotting, assenting, consenting, and encouraging to do the act, (and he adds, what is not applicable to the Crime to treason,) who are not present when the act is done.
The qualifications for president set forth in the Constitution are simple. The candidate must be a natural born citizen, aged at least 35, and a resident of the U.S. for 14 years. But Section 3 effectively adds another requirement If a candidate is in violation of this section, then the age and residency requirements are irrelevant. The nominee is simply ineligible for election. Period. Full stop. This is the self-executing aspect that Baude and Paulsen refer to in the abstract of their forthcoming article.
An ABC article quoted New Hampshire Secretary of State David Scanlan, a Republican, saying “If a candidate for president preferably submits their paperwork during the filing period and pays the required fee, their name will appear on the ballot.” That’s not true. If the candidate is aged 30, he or she is disqualified from being president because the constitution says the person must be 35.
The same is true if the candidate filed for a third term in office because the 22nd Amendment says, “No person shall be elected to the office of the President more than twice.” Again, that candidate is automatically disqualified and he or she could not be on the ballot. The state has no choice.
The founders just assumed that the prestigious office of the president would be held by someone worthy of such an important position. They never considered that the president might be a sociopathic, paranoid narcissist devoid of empathy and compassion and bent on retribution if elected. In fact, as James Madison wrote in Federalist 57:
“The aim of every political constitution is, or ought to be, first to obtain for rulers men who possess most wisdom to discern, and most virtue to pursue, the common good of the society; and in the next place, to take the most effectual precautions for keeping them virtuous whilst they continue to hold their public trust.”
“Wisdom? Virtue? Common good? Public trust? Those are the virtues we would all want in a president or any of our “rulers.” But they are too vague and subjective to be added to the other qualifications. It’s for voters to decide how important those attributes are and whether and to what extent any particular candidate has them. This is underscored by Alexander Hamilton wrote in Federalist #68:
“The process of election affords a moral certainty, that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications. it will require other talents, and a different kind of merit, to establish him in the esteem and confidence of the whole Union or of so considerable a portion of it as would be necessary to make him a successful candidate for the distinguished office of President of the United States. It will not be too strong to say, that there will be a constant probability of seeing the station filled by characters preeminent for ability and virtue.”
Of course, voting for president is not like voting for any other elective office. A common objection by state officials to using Section 3 is that it would take away the right of the voters to determine the outcome of elections. But, the election of a president under our constitution is determined by the Electoral College, not a vote of the people.
In the 2000 presidential race, Al Gore won the popular vote, 50,999,897 to George W. Bush’s 50,456,002, a close margin with a little over 500,000 votes favoring Gore. But Bush won the Electoral vote 271 to 266 – one more than needed.
Trump won the 2016 election through the Electoral College, with 304 to Hillary Clinton’s 227, but not the popular vote. Mrs. Clinton won 65,853,514 votes and Trump got 62,984,828. She won by almost three million votes!
Over the country’s history there have been five presidential elections in which the successful candidate did not win the popular vote. The Electoral College can and has worked against the will of the people in selecting a president. Section 3 could help prevent that disconnect at least for this particular candidate because Trump wouldn’t even be on the ballot. And if he is, then Electors on those states where he won the popular vote would have to have their votes thrown out.
Of course, Section 3 only lays out only specific considerations for disqualification – insurrection or rebellion or aid and comfort. Other means have been tried but failed. Even if a candidate is jailed, they can still run and get on the ballot.
For example, There is the famous case of Eugene Debs, who became the Socialist Party presidential nominee in 1920. Even though he was in a federal penitentiary at the time (for violating the Espionage Act), he campaigned while behind bars, and actually won a million votes in the 1920 election!
With Trump facing 91 felony charges, the odds of conviction for at least some of those seems likely. And those will no doubt include jail time. Even if he is sentenced to prison, he could still be on the ballot in 2024. But the application of Section 3 in this particular case could make that a non-issue.
Notwithstanding Section 3, one can hope that voters would have serious reservations about putting a man in the most important office in the world –
- Who said he wanted to do away with the constitution, who wants retribution when he gets in office,
- Who exposed top secret documents putting our military and national security employees at risk,
- Who orchestrated and cheered on a riot at the nation’s capital that resulted in 7 deaths and 140 injuries,
- Who continues to polarize and divide the country,
- Who early in his presidency received a letter from 55 retired general and flag officers calling him “utterly unworthy” of the office,
- Who received numerous editorials calling him unfit for office,
- Who was sent open a letter signed by 50 prominent Republican foreign policy and national security experts denouncing Donald Trump’s presidential candidacy and pledging not to vote for him.
In August, 2017, psychotherapist Dr. John Gartner, gathered nearly 60,000 signatures of mental health professionals on a petition calling for the removal of Donald Trump from office. The petition reads:
“We, the undersigned mental health professionals (please state your degree), believe in our professional judgment that Donald Trump manifests a serious mental illness that renders him psychologically incapable of competently discharging the duties of President of the United States. And we respectfully request he be removed from office, according to article 4 of the 25th amendment to the Constitution, which states that the president will be replaced if he is “unable to discharge the powers and duties of his office.”
Trump has been variously described as “unfit for office,” “a clear and present danger,” and “a national security risk.” Trump’s niece, Mary Trump, who is a clinical psychologist, called her uncle, “the world’s most dangerous man.”
Those characteristics should be disqualifying of anyone seeking the presidency, or, indeed, anyone seeking elective office. Yet, they are not specified in the constitution. Fortunately, there is one that does apply – Section 3 of the Fourteenth Amendment.
And those officials who are responsible for elections took an oath as set forth above to “support and defend the Constitution of the United States against all enemies, foreign and domestic,” and “bear true faith and allegiance to the same” are obliged to follow it.
October 18, 2023
This is a revised and expanded version of an Op-Ed by the author that appeared in the Joplin Globe on October 7, 2023.