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Multiple efforts have been mounted to drive former President Trump off the November 2024 ballot by claiming that his activities in connection with the January 6 riots (to use an unfreighted word) at and near the Capitol constitute engaging in an insurrection sufficient to bar him from regaining the presidency. An early decision by the Minnesota Supreme Court unwisely complicated the matter. It concluded that the petitioners had standing to challenge Trump’s participation in the primary, only to hold on the merits that Minnesota law allowed voters in the primary first to decide whether to put him on the ballot. More ominously, it also held that the effort to keep Trump off the ballot was neither “ripe” nor “about to occur,” and thus could be decided on some later day, much closer to the election.
There was a spirited debate of this topic at the November 2023 Federalist Society meeting between Professors Will Baude and Michael McConnell over the various aspects of the debate, where Baude defended the insurrection charge that McConnell opposed. I disagree strongly with Baude’s conclusion and much of McConnell’s reasoning to hold off making the decision. So, I present my own view here, and insist that a correct disposition of the case would decide it on the merits right now, letting Trump win on this dispute by a TKO. To see why, it is important to tee up the full text of Section 3 of the Fourteenth Amendment, which reads as follows:
Section 3 Disqualification from Holding Office
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.
The section leads with a list of individuals to which this provision applies. It starts with four political officers—state senators and representatives, as well as electors for the president and vice president—but the amendment makes no mention of either the president or vice president. That is no casual omission, but reflects this basic proposition. The officials mentioned are all chosen at the state level, which means that the local political processes could, especially in the aftermath of the Civil War—the amendment was adopted in 1868—produce former combatants in the Civil War who might well be barred from working mischief in the political process. But there are specific rules for selecting the president and vice president that make their selection subject to a comprehensive national processes where, if the electors are properly screened, will not be subject to such localized influences. Hence, there is no reason to include further safeguards against either person.
That textual reading can be made right now, eliminating the massive uncertainty that will arise if so weighty a matter is allowed to linger for weeks or months until the crisis moment comes: the point when each of fifty states can make its own determination about when the matter is somehow “ripe” for adjudication.
This argument rarely takes hold because many articles that seek to explicate the clause just omit the words that define the cast of characters who are subject to the basic provision. The Jurist truncates Section 3 as follows: “No person . . . who, having previously taken an oath . . . to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same.” That version not only cuts out the four political figures but also the phrase, “as an executive or judicial officer of any State,” which has led many commentators to conclude, over the opposition of others, that the president is brought into Section 3 by the phrase executive officer, which would close the supposed gap by bringing in not only the president but also the vice president. But the point makes no sense because the appointments clause to the Constitution makes a distinction between officers in the executive branch and the president who may well appoint them. Article II, § 2, cl. 2 reads:
[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”
The section’s reference to “all other officers,” clearly cannot include the president who is in charge of their appointment. Hence, without question, the entire text of Section 3 does not allow for sneaking in the president as an officer. The simple reading of this provision is that the officers in question should be appointive officers. That reading, moreover, agrees with the remedial provision included at the end of Section 3 that says, “Congress may by a vote of two-thirds of each House, remove such disability.”
This provision makes perfect good sense when we are speaking about any of the covered appointees in the case, because none of them are subject to the long, tortuous process to elect a president of the United States. If indeed the president were covered, it should be perfectly sensible to exclude him from the entire process that the Minnesota court was not prepared to do (in the hope that the entire problem would disappear if Trump faltered in the early stages of the process). But the real challenge is how best to deal with the situation if Trump succeeds in some states and fails in others, so that it is not clear whether he can be on enough ballots to win either the nomination or the presidency.
There are no new facts that need to be adduced on this issue, as the events of January 6, 2021, have been endlessly recited, and the legal arguments on the scope of coverage, the definition of an insurrection, and the choice of remedy are perfectly clear today. The passage of time will only allow uncertainty to percolate throughout the entire process without adding any clarity to the underlying legal disputes. In addition, the stated constitutional remedy which makes perfect sense for appointed officers (who cannot be appointed before the president is elected), makes absolutely no sense for the president, whose election is secured by other means, none of which are mentioned or discussed in Section 3. The Supreme Court should end this silliness now.
In an effort to get around that provision, former judge Michael Luttig takes the view that Section 3 should be regarded as self-executing, which makes no sense. Self-executing in the context of treaties refers to a treaty that goes into effect without any enabling legislation. But here the needed execution will, on this bizarre reading, authorize countless federal, state, and local officials to take a crack at enforcing this provision without the slightest textual hint that this is permissible. Indeed, it is only for the president and vice president that such a provision comes into play, for the procedure put into service in Section 3 can handle all ordinary cases, which are made only after a new administration is in office. Holding these proceedings in bunches can yield to inconsistent results, while forcing the president to exhaust his resources not only fending off multiple criminal and civil proceedings but also litigating utterly pointless claims.
None of this analysis even touches the definition of what counts as “engaged” by the president, not just the mob, in insurrection. There was much confusion that day at the Capitol, but when Trump told his supporters to fight for their rights, he did not urge them to enter the buildings, even as other people were on the scene urging people forward. Trump also refused to intervene in the afternoon, which, foolish as it was, does not amount to insurrection by omission. The insurrection charge also figured front and center in the 2021 impeachment of Trump, but resulted in an acquittal that was a judgment of the merits. Nor were insurrection charges included in special counsel Jack’s Smith’s indictment for January 6. Both of these cases should preclude the next round of charges because of the prior litigation in one case and the opportunity to litigate in the other. This legal mish-mosh disappears if the Supreme Court now puts the matter back in the political process, where it squarely belongs.Published in