Legal Battle Over Trump’s Presidential Candidacy Under ‘Insurrection’ Clause Commences

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This week marks a significant turning point in the campaign to employ the “insurrection” clause of the U.S. Constitution to disqualify former President Donald Trump from seeking the White House once more. Court hearings are set to commence in two states, potentially paving the way for these lawsuits to eventually reach the U.S. Supreme Court.

In Colorado, a weeklong hearing on a lawsuit aimed at preventing Trump from appearing on the ballot begins on Monday. Simultaneously, on Thursday, oral arguments are scheduled before the Minnesota Supreme Court regarding an effort to exclude the Republican former president from the ballot in that state.

The decisions rendered by these judges, whether they retain Trump on the ballot or disqualify him, are poised to trigger swift appeals, ultimately reaching the U.S. Supreme Court. This judicial showdown is of particular significance because the nation’s highest court has never weighed in on the Civil War-era provision within the 14th Amendment, which bars individuals who took an oath to uphold the constitution and subsequently “engaged in insurrection” from holding higher office.

Derek T. Muller, a law professor at Notre Dame, noted that while past presidential candidates have faced debates over their eligibility—such as Barack Obama, Ted Cruz, and John McCain—these cases stand apart. They invoke an obscure clause of the Constitution with an “incendiary” prohibition against insurrection.

Despite being considered long shots, these cases present a plausible legal path to success and raise profound questions. According to Muller, “Those legal questions are very weighty ones.”

Over recent months, dozens of cases referencing Section Three of the 14th Amendment have been filed. However, the ones in Colorado and Minnesota hold particular prominence in the eyes of legal experts. This is because they were brought forth by two liberal organizations armed with substantial legal resources. Furthermore, they strategically targeted states with well-defined, expeditious processes for challenging candidates’ ballot qualifications.

As asserted by the plaintiffs in these cases, the argument is straightforward: Trump’s actions in attempting to overturn the 2020 election results, culminating in the January 6, 2021, attack on the U.S. Capitol, disqualify him from the presidency as unequivocally as if he were not a natural-born citizen—an additional constitutional prerequisite for the office.

The Colorado lawsuit, filed on behalf of Republican and unaffiliated voters by the liberal group Citizens for Responsibility and Ethics in Washington, alleges, “Four years after taking an oath to ‘preserve, protect and defend’ the Constitution as President of the United States … Trump tried to overthrow the results of the 2020 election, leading to a violent insurrection at the United States Capitol to stop the lawful transfer of power to his successor. By instigating this unprecedented assault on the American constitutional order, Trump violated his oath and disqualified himself under the Fourteenth Amendment from holding public office, including the Office of the President.”

Trump has criticized these lawsuits as “election interference,” with his legal team contending that none of the issues are straightforward within a provision of the Constitution that has remained largely dormant for 150 years.

This clause has been invoked only sparingly since the immediate aftermath of the Civil War. Trump’s attorneys argue that it was never intended to apply to the office of the president, which is not explicitly mentioned in the text, unlike “Senator or Representative in Congress” and “elector of President and Vice President.”

The provision permits Congress to grant amnesty, as it did in 1872 to allow former Confederates to rejoin the government. This has led some to argue that it lacks inherent power without an enabling act of Congress.

Additionally, Trump’s lawyers contend that the former president never “engaged in insurrection” but was merely exercising his free speech rights to voice concerns about election results he deemed illegitimate. In their filing for the Colorado case, they asserted, “Trump’s comments did not come close to ‘incitement,’ let alone ‘engagement’ in an insurrection,” and provided examples of cases where the congressional authors of Section Three declined to apply it to individuals who only rhetorically supported the Confederacy.

The hearings in Colorado may involve testimony from witnesses to the January 6 attack or other pivotal events during Trump’s efforts to overturn the election. The identities of these witnesses have been kept confidential until their testimony, as part of the court’s efforts to mitigate the heated rhetoric and threats that have become an issue in Trump’s criminal trials.

Attorneys are expected to delve deeply into the historical context of the drafting of the provision within the 14th Amendment and its usage between its adoption in 1868 and the amnesty law in 1872. Legal precedent on this issue is scarce, to the extent that lawyers have had to debate the meaning of an 1869 case authored by Salmon Chase, who was then Chief Justice of the U.S. Supreme Court but wrote it solely as an appeals judge.

Following the amnesty act in 1872, there is only one other instance where this provision was cited, when Congress declined to seat a socialist member of the House of Representatives because he opposed entry into World War I.

Then, last year, CREW used it to bar the leader of “Cowboys for Trump” from a county commission seat in rural New Mexico. A second liberal group, Free Speech For People, filed lawsuits to prevent Republican Representatives Marjorie Taylor-Greene and Madison Cawthorn from seeking re-election.

In Greene’s case, the judge ruled in her favor, while Cawthorn’s case became moot after he was defeated in his primary. Free Speech For People filed their case in Minnesota, where challenges to ballot appearances are expedited to the state supreme court.

Frequently Asked Questions (FAQs) about Insurrection Clause Lawsuits

More about Insurrection Clause Lawsuits

• 14th Amendment of the U.S. Constitution: Read the full text of the 14th Amendment, which contains the “insurrection” clause.
• Legal Battles Over Trump’s Candidacy: Additional information and updates on the legal challenges discussed in the text.
• U.S. Supreme Court: The official website of the U.S. Supreme Court for details on its role in potential appeals related to these lawsuits.