The Case for Disqualification

Even as Donald Trump roars and intimidates with ever more violent threats, even as his lawyers warn that kicking him off the ballot in November would “unleash chaos and bedlam,” even as it becomes evident that we are not in the midst of a normal national election but an ongoing coup d’état by a charismatic despot, it is taking a long time for the public to understand the enormity of the events of January 6, 2021, and all that precipitated them.

In the moment, American historians were better equipped to grasp their profound political implications. Less than a week after the attack on the Capitol, Eric Foner, the preeminent authority on Reconstruction, pointed to Section 3 of the Fourteenth Amendment, ratified three years after the end of the Civil War, which bars anyone who has sworn to uphold the Constitution and who has engaged in insurrection from ever holding office again. Plainly, Foner said, then-president Donald Trump, along with other public officials, had sworn “an oath to defend the Constitution and, on Jan. 6, they violated it.” To bar them from public office, as the Constitution mandates, “would be the mildest of punishments” for “an uprising that left five people dead, threatened the lives of members of Congress, caused havoc in the Capitol, and sought to overturn the results of the presidential election.” Upholding the law of the land, Foner remarked, “would be an affirmation of the vitality of our wounded democracy.”¹

Three years later the Supreme Court will now decide whether to sustain the recent decisions of the Colorado Supreme Court and the Maine secretary of state to follow the Constitution’s mandate, much as Foner suggested. Unsurprisingly, Trump’s lawyers and defenders, when not unsubtly raising the specter of mass violence, have groped for any escape route they can find. George W. Bush’s attorney general Michael B. Mukasey has floated the strange reading that the relevant section of the Fourteenth Amendment covers only persons appointed to office.² In its filing contesting the Maine disqualification, Trump’s legal team tries to peddle the claim that the amendment bars persons “from holding specified offices, not from running for them or from being elected to them.”

No less risible, if somewhat more surprising, has been the alarm at Trump’s disqualification expressed by some law school academics and political pundits. By their reasoning, Trump’s misdeeds aside, enforcement of the Fourteenth Amendment poses a greater threat to our wounded democracy than Trump’s candidacy. In the name of defending democracy, they would speciously enable the man who did the wounding and now promises to do much more.

Samuel Moyn of Yale Law School, for example, writing in both The New York Times and, less guardedly, the Trumpist magazine Compact, has described invocation of the Fourteenth Amendment as essentially a conspiracy, part of a plot by liberals to stifle dissent against their shoddy elitist hegemony, the latest “quick fix or short cut that would save liberals the trouble of winning” at the polls. The New Yorker’s Amy Davidson Sorkin cites a Colorado Supreme Court dissenter’s citation of a solitary, eccentric 1869 court ruling—a decision debunked and even ridiculed by historians and constitutional scholars across the ideological spectrum—to suggest that disqualifying Trump would deny him due process under the law. In any event, Sorkin writes, it would be much “sounder” to defeat Trump at the polls than to risk the chaos she presumes his disqualification would cause. To avoid political consequences, she would toss the law and leave the matter to politics.³

Kurt Lash of the University of Richmond claims, in a Times op-ed, that the constitutional basis for disqualification is at best iffy. Lash imputes ambiguity to the Fourteenth Amendment by placing great weight on the fact that during the congressional debate on its adoption in 1866, Senator Reverdy Johnson of Maryland, a former attorney general, wondered whether its disqualification section applied to the president. He downplays how, once corrected, Johnson told the Senate, “Perhaps I am wrong as to the exclusion from the Presidency; no doubt I am.” Meanwhile, in New York, Jonathan Chait, while raising issues of due process and the optics of disqualification so close to the election, also frets over whether Trump engaged in insurrection at all because he “was not trying to seize and hold the Capitol nor declare a breakaway republic,” as if that were the proper definition of the term. In fact, the federal indictment against Trump for January 6 covers his attempt to stage a coup over a three-month period.⁴

Finally, Ruth Marcus of The Washington Post, who also fears a Trumpist frenzy, has offered three rationales for the Supreme Court to overrule the Colorado court: that it is unclear whether Trump engaged in insurrection; that Section 3 of the Fourteenth Amendment doesn’t cover US presidents; and that Congress must pass enabling legislation before Section 3 can be enforced. But the historical and constitutional basis for these claims is at best flimsy and for the most part nonexistent.⁵

Whether motivated by a clutching fear of Trump’s base, a perverted sense of democratic evenhandedness, a reflexive hostility toward liberals, or something else, these confident disavowals betray a basic ignorance of the relevant history and thus a misconception of what the Fourteenth Amendment actually meant and means. That history, meanwhile, has placed the conservative members of the Supreme Court in a very tight spot.

Over the past forty years the doctrine of originalism (along with its sibling, textualism) has been the cornerstone of the jurisprudence of the conservative majority that now dominates the Court. Concocted in the 1980s to roll back the constitutional precedents of the New Deal and Great Society eras, supposedly in the name of judicial restraint, originalism purports to divine the original intentions of the framers by presenting tendentious renderings of the past as a kind of scripture. This bad-faith invocation of the framers has become a ploy to justify overturning Roe v. Wade, gutting the Voting Rights Act of 1965, eliminating commonsense gun regulation, and more. But now this originalist petard is exploding in the majority’s face. No degree of cherry-picking or obfuscation can deny the historical record of the Fourteenth Amendment, which is unequivocal: if Donald Trump engaged, in any way, in the insurrection of January 6, he is automatically barred from holding any public office, federal or state.⁶

Contrary to some of the pundits, the Fourteenth Amendment, including its third section, was not adopted to conciliate the North and South or, in Moyn’s words, to “stabilize the country after a civil war.” Along with the Thirteenth and Fifteenth Amendments, it was an attempt to formalize and consolidate a social revolution—the abolition of slavery—and, as far as possible, to crush, in national law, the implacable efforts of the defeated Confederates to undo that revolution.⁷ The amendment’s third section grew from debates initiated by the congressional Joint Committee on Reconstruction on how best to ensure that the chief Confederates would not recreate an oligarchic regime based on black subjugation and disenfranchisement.

As the legal historian Mark Graber has demonstrated, however, the third section’s framers and supporters also pointedly stated that they were not aiming its disqualification provision simply at those who had participated in what they called “the late rebellion.” Graber cites, among others, Senator John Henderson of Missouri, who observed that “the language of this section is so framed as to disenfranchise from office the leaders of the past rebellion as well as the leaders of any rebellion hereafter to come.” Anyone who had violated a solemn vow to uphold the Constitution could never be trusted not to do so again; hence disqualification was the only reasonable course. The reasoning pertained not to any one era but to all time, providing the nation, Senator Waitman T. Willey of West Virginia declared, with a “measure of self-defense.”⁸

The need for that self-defense in the current moment belies the argument of Sorkin and others quaking before Trump and his followers that, in Chait’s words, to disqualify him “would be seen forever by tens of millions of Americans as a negation of democracy.” The fact is that Trump has already attempted to negate American democracy and come perilously close to doing so; and he has stated publicly that he intends to do it again, up to and including, if returned to power, suspending parts of the Constitution that he is supposed to preserve, protect, and defend. It would certainly be a “sounder” solution (Sorkin’s word) if Trump were defeated in 2024, after which he graciously returned to Mar-a-Lago. But he and his supporters—most recently Representative Elise Stefanik of New York, who is eagerly auditioning to be his running mate—have openly declared that this simply will not happen, no matter what the voters decide. They are no less implacable than the die-hard Confederate insurrectionists were after Appomattox. They represent precisely the kind of clear and present danger that the framers of the Fourteenth Amendment knew they were facing, a danger against which the normal mechanisms of electoral democracy are powerless. Only a constitutional remedy, those framers knew, would suffice. Section 3 of the Fourteenth Amendment is that remedy.

Trump’s ever-inventive lawyers, to be sure, have tried to confuse the issue by claiming that disqualifying their client amounts simultaneously to lèse-majesté and deep-state persecution. At Trump’s behest, they are throwing any argument into the mix to cause delay and to use the courts as a forum for his campaign. Although it persuaded a Denver judge, the claim that presidents are not covered by the disqualification clause does not pass the smell test, especially on originalist grounds, as the framers and the supporters of the amendment recognized that its phrase encompassing “any office, civil or military, under the United States” included the president and vice-president. Trump’s attorneys have the audacity to claim that their client was not an officer of the United States. Have they read the constitutional oath every president takes to “faithfully execute the Office” of the presidency? Do they really expect anyone to believe that the presidency is the one federal office whose occupant is not an officer of the United States?

The United States Court of Appeals for the D.C. Circuit has yet to rule on Trump’s claims to presidential immunity from prosecution for any alleged crimes for which he was not impeached, a twisted reading of the Constitution that special counsel Jack Smith has reasonably said “threatens the democratic and constitutional foundation of our Republic.” Yet even if the appeals court were to rule in Trump’s favor, it would have no effect on his disqualification, as the constitutional bar is not based on any conviction for any criminal offense. Although insurrection is indeed a federal crime under 18 US Code § 2383, it became one only in 1948, and it is in any case irrelevant to disqualification under the Constitution. None of the ex-Confederates excluded from office after the amendment went into effect were prosecuted for insurrection. One public official has thus far been removed from office under the Fourteenth Amendment for participating in the January 6 events: Couy Griffin, a New Mexico county commissioner who was earlier convicted of trespassing, sentenced to fourteen days in jail, and fined $3,000. But one need not have been proved beyond a reasonable doubt to have engaged in insurrection in order to be disqualified from public office. Disqualification is a constitutionally imposed disability, not a punishment for a criminal offense.

The Trumpists would have it otherwise, claiming that unless Congress passes a law implementing the disqualification clause, it is inoperative. If successful, this line of argument would have to rest on a single strange ruling, the one cited by Sorkin, made by Chief Justice Salmon P. Chase in the case in re Griffin in 1869.

A year earlier, presiding over the treason trial of Jefferson Davis, Chase counseled Davis’s attorney that as Section 3 of the recently ratified Fourteenth Amendment was self-executing—meaning that it required no additional legislation to come into effect—its exclusion of insurrectionists effectively vacated Davis’s treason indictment. Just as no additional law was needed to abolish slavery after the Thirteenth Amendment, none was needed to disqualify insurrectionists from public office. What evidence survives suggests that the framers and supporters of the Fourteenth Amendment in 1866–1868 assumed that it was self-ratifying in its entirety; there is no evidence suggesting they did not. Affirmation by a court of engagement in insurrection was sufficient for a Section 3 disqualification, as happened immediately after the Civil War and has happened as recently as 2022 in the New Mexico case. The involvement of Congress was not mandatory; to rule that it is now would raise serious and possibly devastating questions about this Supreme Court’s legitimacy.

In the Griffin case, however, involving a Virginia convict attempting to disqualify the judge who had presided over his trial because he had served in the Virginia legislature during the Civil War, Chase, in his capacity as circuit justice, suddenly changed his mind, asserting that Section 3 was moot, absent enabling legislation. No other judge or justice ever ruled this way again, whereas state courts pursued disqualifications under Section 3, assuming that the entire Fourteenth Amendment, and not just its other four sections, was self-executing. Congress never countermanded these disqualifications.

The attention recently given the disqualification clause has focused new attention on in re Griffin, and most experts have judged Chase’s revised ruling a botch, filled with contradictions and quite likely politically motivated and self-serving. Among other critics, the two conservative legal scholars who have argued most forcefully for Trump’s disqualification on originalist grounds, William Baude of the University of Chicago and Michael Stokes Paulsen of the University of St. Thomas, regard Chase’s decision as a joke that “should be hooted down the pages of history.” The Colorado Supreme Court ruling, in coming to the same conclusion, put the issue bluntly: if any of the nearly identically structured Reconstruction Amendments, including the Fourteenth, required additional legislation to go into force, “then Congress could nullify them by simply not passing enacting legislation. The result of such inaction would mean that slavery remains legal.”⁹ For the current Supreme Court to nullify Trump’s disqualification on so feeble and exceptional a precedent as in re Griffin would make another high court ruling based on the Fourteenth Amendment, Bush v. Gore, look like a paragon of dispassionate jurisprudence.

With the law and the facts against them, the Trumpists and the apologetic pundits alike have started pounding the table, trying to raise doubts about whether Trump engaged in any kind of insurrection at all. This has led to some diverting speculation and oddball debates over what, exactly, constitutes an insurrection. Chait claims that nothing less than a full-fledged revolution or Confederate-style secession fits the bill. Adam Serwer of The Atlantic demurs, reminding us of the Whiskey Rebellion, Fries’s Rebellion, Gabriel’s and Nat Turner’s uprisings, not to mention John Brown’s Raid, all described as insurrections in their time. Ross Douthat, in his Times newsletter, denies that January 6 matches any of those lesser examples, though he does hold up John Ganz’s identification of a fascist riot in Paris on February 6, 1934, as a possible instance of one. So much for American exceptionalism.¹⁰

To satisfy the Supreme Court majority, an originalist inquiry would be in order; but once more, originalism ends up working to Trump’s disadvantage. Graber has again done the essential work. Upon close examination of Anglo-American legal texts on treason and insurrection dating back to Edward III in the fourteenth century, but with special attention to American law from the founding through the start of Reconstruction, he has identified four elements that define an insurrection: 1) an assemblage of people; 2) engaged in resisting a federal law; 3) using force or the threat of force with intimidating numbers; 4) with a public purpose or, in the words of Justice Samuel Chase in 1800, an “object of a great public nature, or of public and general (or national) concern.” Engaging in insurrection need not mean actually being present to commit the violence or intimidation. On all four counts, the well-established facts of Trump’s activities and spoken words on January 6 and over the preceding weeks squarely fit an originalist definition.

In fact, there is a clear consensus on the basic facts of January 6, not least in the findings of the congressional January 6 Committee, though Jack Smith may well present more shocking details in his federal case against Trump. Moyn sees no such consensus, a major reason why he thinks the Supreme Court should reject disqualification out of hand. On December 22 he wrote:

What actually happened on Jan. 6—and especially Mr. Trump’s exact role beyond months of election denial and entreaties to government officials to side with him—is still too broadly contested.

The claim is bizarre. “Broadly contested” when bipartisan majorities in both houses of Congress voted to impeach and remove Trump from office? When two Colorado courts concurred that Trump had engaged in an insurrection? When even Trump’s lawyers in those proceedings did not contest the facts about the insurrection? When the remarks, soon after the insurrection, of Senator Mitch McConnell still resound? “It was a violent insurrection for the purpose of trying to prevent the peaceful transfer of power after a legitimately certified election from one administration to the next.”

With oral arguments before the Supreme Court set for February 8, Trump and his advocates have outdone themselves, serving up the sophistry and chicanery contained in the amicus brief prepared on behalf of Senator Ted Cruz and 178 other MAGA members of Congress and filed on January 18. Seemingly a road map for the conservative justices to stop disqualification, the brief reads more like a game of three-card monte. After swiftly noting that Chase’s discredited ruling in Griffin is “not directly binding,” it then shuffles into treating the ruling’s “longstanding precedent” as if it were absolutely binding and claims that “Congress must pass authorizing legislation to enforce Section 3.” The brief twists Congress’s express authority to enforce the amendment to mean that the amendment itself is not self-enforcing.

The brief bids the Supreme Court to rule that because the presidential oath of office does not contain the words “support the Constitution” (the president swears to “preserve, protect and defend the Constitution”), Trump is exempt from disqualification under Section 3. In claiming that the Colorado decision denies Congress’s authority to undo a Section 3 disqualification, it distorts the wording of the Twentieth Amendment, on presidential succession, to reach a conclusion for the ages: “A candidate may be elected President even if he is not qualified to hold the office.” In dealing that card, the brief’s authors appear not to notice that it gives away their entire game.¹¹

These lawyers—indeed, all the academics and pundits quailing at enforcement of the Constitution—would profit from the words of Abraham Lincoln at the outset of the Civil War. The American people, Lincoln said, had established that they could successfully create and administer a democratic government. They had yet to establish, however, whether they could maintain that government “against a formidable internal attempt to overthrow it.” Now they were left “to demonstrate to the world that those who can fairly carry an election can also suppress a rebellion.”¹²

The conservative majority of the Supreme Court—and the historical legacy of the Roberts Court—have reached a point of no return. The law, no matter the diversions and claptrap of Trump’s lawyers and the pundits, is crystal clear, on incontestable historical as well as originalist grounds. So are the facts of the case, which in any event the Supreme Court is powerless to review. The conservatives face a choice between disqualifying Trump or shredding the foundation of their judicial methodology.

But the choice is far more profound than the Court’s consistency. In 2000 it disgraced itself by manipulating the Fourteenth Amendment to produce Bush v. Gore, a ruling that changed the course of history and was later described by Justice Antonin Scalia, who concurred in it, this way: “As we say in Brooklyn, a piece of shit.”¹³ Now the Court must decide whether it will honor the original meaning of the Fourteenth Amendment and disqualify Donald Trump. If it does so, it may redeem in part the terrible judicial malpractice of 2000. If it does not, it will trash the constitutional defense of democracy designed following slavery’s abolition; it will guarantee, at a minimum, political chaos no matter what the voters decide in November; and it will quite possibly pave the way for a man who has vowed that he will, if necessary, rescind the Constitution in order to impose a dictatorship of revenge.

—January 25, 2024