Donald Trump and the Insurrection Clause

 I blogged earlier this month about Donald Trump’s Insurrection Clause litigations, in a fairly summary fashion (“And Just Like That”).  Two recent columns written by David French in the New York Times are leading me to expand on that post.  My view is that the Supreme Court should disqualify Trump as a presidential candidate, but won’t.  Mr. French is one of the Times’ conservative house Op-Ed columnists, and he makes a compelling case that the Clause plainly applies.

Let’s start with the actual text of the Clause, which is Section 3 of the 14th Amendment:  “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.” 

Pretty clear, right?  Trump was President, which is “an officer of the United States”, and he took an oath to “preserve, protect and defend the Constitution of the United States.”  He is now seeking to hold that “office” again, from which this language disqualifies him.  How can the textualists on the Court get around this?  They’ll have to bob and weave, just like they did in Bush v. Gore which curiously (and unpersuasively in my opinion) relied on the Equal Protection Clause in the same 14th Amendment.

It’s a little curious that the Insurrection Clause refers to Senators and Representatives, and electors, without referring to the President himself, but the language also says that no person covered by the Clause shall hold “any office,” without limitation.  How is the presidency not an “office, civil or military, under the United States”?  Yes there have been some law review articles and op-eds that try to make the opposite argument, but they are also unpersuasive because they strain the language, which a textualist isn’t supposed to do.

Some have argued that what Trump is accused of wasn’t an insurrection.  But what is an insurrection if it doesn’t include an armed attack on the Capitol that was intended to stop the counting of electoral votes which is a critical part of certifying and implementing the results of the Presidential election?  That it could have been worse, involving firearms or explosives, or an organized military force, doesn’t make what happened on January 6, 2021 NOT an insurrection or uprising against the United States and its government.  The objective was to force the continuation of an existing administration when Congress was meeting to confirm its ouster.

Others have argued that Trump hasn’t been shown to have “engaged in insurrection.”  His words clearly had an intended ambiguity in that regard, but when set against all we now know about the involvement of him and his aides in the various fake elector schemes, the violence on January 6 is easily understood as the endgame of a much broader conspiracy to retain power through illegitimate means.  That is also an “insurrection or rebellion,” or at least a key part of the one sought to be achieved here.

Still others have argued, as a variation, that Trump hasn’t been convicted of any crime which might include the concept of insurrection.  But there is nothing in the text of the Insurrection Clause that requires a criminal conviction as a prerequisite to invoking the Clause.

Another variation is the argument that Trump hasn’t received due process.  That isn’t true either.  In Colorado he had a week-long trial where the Court concluded, after hearing evidence, that the weight of the evidence showed that he was involved in an insurrection.  The Maine Secretary of State made similar findings after an administrative trial which also included the receipt of evidence and the testimony of witnesses.

Some have expressed surprise that these findings came out of state proceedings, not federal.  Clearly the Constitution is a matter of federal law, and the Supreme Court, as our ultimate arbiter of constitutional law since Marbury v. Madison, has the final say.  But in our country’s system, as it has existed since inception, elections are run by states pursuant to state law so it is unsurprising that the question of who may be eligible for inclusion in a state’s ballot is brought originally in a state court, subject to Supreme Court review of the ultimate constitutional question of eligibility under the Insurrection Clause, as is happening right now based on the Supreme Court’s grant of certiorari in the Colorado case.  The Supreme Court will resolve any inconsistency among the various state decisions, of which there are now several.

The argument has also been made that the Insurrection Clause is not self-executing, and it can’t be enforced without legislation from Congress which has never been passed.  I suppose Congress could pass legislation if it felt the need, just as it did in the 1880s in the Electoral Count Act which followed the botched election of 1876 that resulted in Rutherford B. Hayes being selected as President over Samuel Tilden in 1877.  But there is nothing that says Congress has to do so before the Insurrection Clause has meaning.  In fact there are many constitutional provisions and amendments which have been given force without legislation, including all or part of the 1st, 2nd, 4th, 5th, 6th, 7th, 8th, 13th, 14th, 15th and 19th Amendments.  To end slavery was there really a need for Congress to pass legislation to implement the 13th Amendment?  To allow women to vote did Congress need to pass legislation to implement the 19th Amendment?  Could we vote to elect a President who was under 35 years of age or not a natural born citizen, without Congress telling us we can’t?  Before 1865 could we have elected a Black person without a bill from Congress prohibiting it?  Before 1920 could we have elected a woman without Congress speaking on the subject?  The Insurrection Clause presents a basic issue of eligibility to serve, about which Congress may speak, but even if it doesn’t the Clause has independent meaning and the Supreme Court may enforce it. 

It is certainly true that without enabling legislation there is no formal established process for how a court may invoke the Insurrection Clause.  But what the Colorado Court did, having a trial and making findings using an “overwhelming weight of the evidence” standard, more than passes the smell test.  Certainly that seems to be a higher standard than a simple “preponderance,” more like “clear and convincing.”  Perhaps the Supreme Court will tell us what it thinks in this regard, although I doubt it.  I don’t think we should apply the standard of “beyond a reasonable doubt,” as this is not a criminal case and as noted the Insurrection Clause contains in its text no requirement that there be a conviction.

My own personal belief is that the most principled way in which the Supreme Court might rule for Trump is based on the political question doctrine.  At least there the Court can cite precedent if not constitutional text.  Certainly Trump’s eligibility to serve is the ultimate form of political question, in a casual if not a legal sense.  But if the Supreme Court refuses to decide the meaning and applicability of the Insurrection Clause, then who will?  Congress, when called on the certify the electoral count next January?  We came too close to that not working the last time for me to have any confidence in that as a “solution.”  And, it amounts in my opinion to an abdication on the part of the Supreme Court in its duty to tell us what the Constitution means.  What is left of Marbury if they refuse to decide?

We’re also told to fear violence if Trump is declared ineligible.  Huh?  I fear violence either way.  If Trump is allowed to stay on the ballot, and loses, might there not be violence?  And if he wins, and goes after “vermin,” might that not also trigger violence?  Since there is risk no matter what happens, I can’t credit fears and outright threats as sufficient grounds to avoid the text and meaning of the Clause.

And where Mr. French in his two columns was, I think, particularly persuasive was in his analysis of the history that ensued when Congress acted under the last portion of the Insurrection Clause and granted a general amnesty to Confederates in 1872.  That was the beginning of the end of Reconstruction.  The Ku Klux Klan then grew in power, Jim Crow was enacted, lynchings and other forms of mob rule against newly freed Blacks began, and Blacks were systematically excluded from political office and voting throughout the South.  It lasted for 100 years, and arguably has never been completely repaired.  The same result could occur here too (albeit perhaps on a smaller and shorter and, I hope anyway, much less dire scale).  The history says we should allow the Insurrection Clause to be given its natural meaning, and exclude Trump from the ballot.  His prior behavior disqualifies him to serve.

The obvious response to all of this is that taking Trump off the ballot is undemocratic, depriving voters of their choice.  But we’re not a pure democracy; we’re a republic.  Voting and voter choice are governed by laws and rules, the most important of which is our Constitution, and in the case of the President that includes eligibility requirements.  I’d rather see “Trump fever” end with a rejection by the voters too, as that is the best way for the fever to break and not return for a third time.  But, whatever I or any Trump supporters may want to see, as a people we adopted a 14th Amendment which contains an Insurrection Clause, which has to mean something, especially given the centrality of the Civil War and its causes and aftermath in our nation’s history.  That “something” has to be, in my opinion, a declaration that former President Trump, based on his behavior on January 6, 2021, and in the run-up to that date, has made himself ineligible to serve.  If the Insurrection Clause weren’t applied here, then whenever would it apply? 

Do I believe that the Supreme Court will actually do that?  No, I don’t.  They’ll find some way to wiggle out.  But that will be just another step in their loss of credibility as an even-handed dispenser of law and justice.  At least they won’t be “directing the verdict,” so to speak, as they did in Bush v. Gore; voters will still have the ultimate say.  Stay tuned.   

                                                                                     Richard P. Swanson

                                                                                     President-Elect, NYCLA

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The views expressed here are those of the author, and do not necessarily represent or reflect the views of NYCLA, its affiliates, its officers or its Board.