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

by Andrew Wright
Insurrection Clause and 2024 Presidential Eligibility

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

What is the “insurrection” clause mentioned in the text?

The “insurrection” clause is a provision within the 14th Amendment of the U.S. Constitution. It prohibits individuals who swore an oath to uphold the constitution and then “engaged in insurrection” against it from holding higher office.

What are the key lawsuits discussed in the text?

Two important lawsuits are highlighted. One is in Colorado, aiming to prevent Donald Trump from appearing on the presidential ballot, and the other is in Minnesota, seeking to disqualify Trump from the ballot in that state. Both cases are based on the “insurrection” clause of the 14th Amendment.

Why are these lawsuits significant?

These lawsuits are significant because they raise the question of whether the former President, Donald Trump, should be eligible to run for office again. The decisions in these cases may ultimately be appealed to the U.S. Supreme Court, and they involve a rarely invoked constitutional provision.

What are the arguments presented by the plaintiffs in these cases?

The plaintiffs argue that Trump’s efforts to overturn the 2020 election results, culminating in the January 6, 2021, attack on the U.S. Capitol, disqualify him from the presidency, much like if he were not a natural-born citizen.

How does Trump’s legal team counter these arguments?

Trump’s lawyers contend that the “insurrection” clause was not intended to apply to the presidency and that Trump’s actions did not amount to “engagement in insurrection.” They argue that he was exercising his free speech rights.

What is the potential outcome of these lawsuits?

The outcome of these lawsuits may determine whether Donald Trump can run for the presidency again in the future. If the rulings lead to disqualification, it could have significant implications for his political future.

Are there any precedents for using the “insurrection” clause in this manner?

There are very few precedents for using the “insurrection” clause. It has been invoked only sparingly in history, making these cases relatively unique and legally complex.

What is the historical context of the “insurrection” clause?

The “insurrection” clause dates back to the aftermath of the Civil War but has seen limited use over the years. Its historical context and legal interpretation are areas of significant debate and scrutiny in these lawsuits.

How might these cases impact future elections and candidates?

The outcome of these cases could set a precedent for how the “insurrection” clause is applied in future elections and whether similar challenges can be brought against candidates based on their actions and statements.

What role does the U.S. Supreme Court play in these lawsuits?

The U.S. Supreme Court may become involved if the rulings in Colorado and Minnesota are appealed, as these cases involve constitutional questions. The Supreme Court has never ruled on the application of the “insurrection” clause to presidential eligibility, making it a potentially landmark decision.

More about Insurrection Clause Lawsuits

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LawNerd123 October 31, 2023 - 1:51 am

Legally complex cases, need 2 follow closely. Impacts future elections, 4 sure.

ConstitutionBuff October 31, 2023 - 2:14 am

14th Amendment, like, old stuff, but these lawsuits, makin’ it relevant again!

reader28 October 31, 2023 - 8:47 am

woah, lots of lawsuits ’bout Trump n’ insurrection. cud b a big deal, U know?


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