Progressive Organizations Aim to Invoke Constitution’s Insurrection Clause to Exclude Trump from 2024 Elections

As the presence of former President Donald Trump looms large over the Republican presidential primaries, a segment of progressive organizations and legal authorities are arguing that an infrequently cited provision of the U.S. Constitution disqualifies him from seeking office again, owing to his involvement in the January 6, 2021, assault on the Capitol.

The 14th Amendment explicitly prohibits individuals from holding office if they have previously sworn an oath to defend the Constitution and then participated in an “insurrection or rebellion” against it. An increasing cadre of legal experts contend that this post-Civil War stipulation is applicable to Trump, based on his actions aimed at subverting the 2020 presidential election and inciting supporters to breach the U.S. Capitol.

Two progressive non-profit organizations have committed to initiating legal challenges if state election officials include Trump on the electoral ballot, ignoring these reservations.

This endeavor is anticipated to set off a cascade of litigations and appellate procedures across multiple states, potentially culminating in a U.S. Supreme Court ruling, perhaps coinciding with the 2024 primary season. This introduces an additional layer of potential legal disarray to a nomination process already complicated by the front-runner’s engagement in four separate criminal trials.

As the Republican Party prepares to initiate its nomination process, starting with the Iowa caucuses scheduled for January 15, Trump’s eligibility to participate is increasingly coming under legal scrutiny.

Gerard Magliocca, a professor of law at Indiana University, cautioned that these legal cases could be ongoing during the primaries, potentially yielding divergent rulings in different states until a conclusive decision is rendered by the Supreme Court.

Although most lawsuits are expected to be filed around October, when states finalize their primary ballots, the issue has gained traction from a newly published law review article by renowned conservative legal scholars William Baude and Michael Paulsen. Their conclusion argues for Trump’s disqualification based on Section Three of the 14th Amendment.

This particular section disqualifies any individual from roles in Congress, the military, and federal and state offices if they have ever sworn an oath to uphold the Constitution and subsequently participated in “insurrection or rebellion” against it or supported its enemies.

Last week’s Republican presidential debate in Milwaukee featured former Arkansas Governor Asa Hutchinson highlighting that Trump could potentially be disqualified according to the Constitution and the rules governing elections.

In 2021, the non-profit organization Free Speech For People submitted letters to chief electoral officials in all 50 states, requesting the disqualification of Trump should he choose to run again. Legal Director Ron Fein pointed out that this matter is now starting to gain official attention after a prolonged period of inertia.

During the run-up to the 2022 midterm elections, the same group pursued legal action to remove U.S. Representatives Marjorie Taylor-Greene and Madison Cawthorn from the ballot for their support of the January 6 incident. While Greene’s case was dismissed in her favor, Cawthorn’s became irrelevant after he lost his primary race.

However, Secretary of State Adrian Fontes of Arizona, a Democrat, stated that his ability to act was constrained by a state Supreme Court ruling which posited that only Congress has the authority to disqualify candidates from Arizona’s presidential ballot.

On the other hand, Michigan Secretary of State Jocelyn Benson, also a Democrat, said that the legal arguments for Trump’s disqualification are valid and under discussion among various state secretaries, including those from battleground states.

In a statement, Brad Raffensperger, the Republican Secretary of State of Georgia, emphasized that voters should ultimately be the deciding authority.

The question of invoking the 14th Amendment to disqualify Trump could have significant legal implications and sets a precarious political precedent, warned Michael McConnell, a conservative law professor at Stanford University.

Enacted in 1868, the 14th Amendment was instrumental in securing civil rights for freed slaves and eventually all U.S. citizens. It was also intended to prevent former Confederate officials from regaining power.

If Trump is barred from running in any state, a legal challenge leading up to the U.S. Supreme Court is almost certain. If no state takes such action, non-profits like Free Speech For People and Citizens for Responsibility and Ethics in Washington are expected to challenge his candidacy.

Edward Foley, a law professor at The Ohio State University, emphasized the necessity for the Supreme Court to definitively resolve this issue prior to the general election to prevent a potential democratic crisis in 2025.

Advocates for invoking the 14th Amendment argue that the clause is not punitive but rather a constitutional requirement for office, akin to the age and citizenship requirements for presidential candidates.

Noah Bookbinder, president of Citizens for Responsibility and Ethics in Washington, summarized the sentiment succinctly: “The criteria for office not only require a candidate to be of a certain age and a natural-born citizen but also to have refrained from orchestrating an uprising against the government.”

Frequently Asked Questions (FAQs) about 14th Amendment’s insurrection clause

More about 14th Amendment’s insurrection clause

• 14th Amendment to the U.S. Constitution
• Legal Analysis of the Insurrection Clause
• Overview of 2024 Presidential Elections
• U.S. Supreme Court Rulings on Constitutional Eligibility
• Historical Usage of the 14th Amendment’s Insurrection Clause
• Conservative Legal Scholars on the Insurrection Clause
• Potential Impacts on the 2024 Republican Presidential Primary