This is part two of a two-part series listing the hurdles faced by lawsuits to disqualify former President Donald Trump from running for the presidency—hurdles so numerous and serious that they imply that the suits shouldn't have been brought at all.
Hurdle No. 3: What History Tells Us About the Meaning of 'Insurrection'The word “insurrection” appears four times in the Constitution: once in the original Constitution (Article I, Section 8, Clause 15) and three times in the 14th Amendment.
By these standards, the Jan. 6, 2021, incident was very small potatoes. Although President Trump’s opponents try to obfuscate these facts, almost all the demonstrators were unarmed, and they killed no one; only a small percentage of them actually entered the Capitol—and many of those were effectively invited in by Capitol security people. And, once inside, most just milled around aimlessly.
I mention these facts not to excuse the rioters but to point out that the incident bears no serious relationship to “insurrection” as the Constitution employs the word. Indeed, it also bears no serious relation to “insurrection” as modern commentators usually employ the word: It hasn't been applied, for example, to the recurrent big-city riots and assaults on government buildings associated with leftist causes since 1968, many of which caused far more damage than the Jan. 6, 2021, riot.
Those claiming that President Trump was engaged in an insurrection also cite other aspects of his conduct that traditionally have nothing to do with insurrections. These include (1) his contention that election irregularities changed the results in several key states, (2) his demands for reviews and recounts, (3) the creation of alternative slates of electors in states certified for Joe Biden but that President Trump believed he carried, and (4) his assertion that the vice president, as chairman of the joint session of Congress, could delay the electoral vote count pending an investigation.
Those who characterize his statements as pure lies are either ignorant or suppressing information that they don't want to know.
Hurdle No. 4: What the Constitution’s Text Tells Us About the Meaning of 'Insurrection'Judges and lawyers also deduce the meaning of words in a legal document from their context in the document. Thus, when trying to define the scope of a word, we may examine other words surrounding it or with which it's coupled.
The Constitution couples the term “insurrection” with the term “invasion.” Specifically, Article I, Section 8, Clause 15 grants Congress the power “to provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.”
It's one of the ironies of politics that many of the anti-Trump people who construe the constitutional term “insurrection” very broadly insist on construing “invasion” very narrowly. In their mind, unauthorized entry into the Capitol by 2,000 people counts as an insurrection, but the unauthorized flood into the country by millions of people doesn't count as an invasion.
The Constitution’s text suggests that the truth may be the other way around. The 14th Amendment couples “insurrection or rebellion” with giving “aid or comfort to the enemies [of the United States].” That “aid and comfort” phrase is borrowed from the original Constitution’s definition of treason (Article III, Section 3, Clause 1). This definition was designed to limit treason to either (1) levying war against the United States or (2) directly aiding those who were doing so.
Hurdle No. 5: The First Amendment and Free SpeechThe First Amendment protects “the freedom of speech.” Whether you agree with them or not, nothing in President Trump’s recorded statements exceeds the First Amendment’s protection. During the former president's second impeachment trial, the Democratic leadership contended that he “incited” the Jan. 6 crowd. But the Supreme Court has held that for incitement to fall outside the protection of the First Amendment, it must be a call to “imminent lawless action and ... likely to incite or produce such action (pdf).”
Suppose that on Jan. 6, 2021, President Trump had spoken on the Capitol steps, ginned up the crowd, and shouted something such as, “Let’s take it over! Let’s stop the phony electoral vote count! Now! Follow me! For the people!” That would have been unlawful incitement.
But President Trump was more than a mile away when he spoke to the Jan. 6 crowd. The timing shows that the riot was pre-planned and not a response to President Trump’s speech. And far from urging violence, the then-president specifically told the crowd to march “peaceably and patriotically” to the Capitol. In doing so, he followed a tradition followed by many other leaders—including, notably, Martin Luther King.
Hurdle No. 6: Who Decides?The 14th Amendment disqualifies from federal or state office persons who “shall have engaged in insurrection.”
But who determines whether a person engaged in insurrection?
No court has ever convicted President Trump of criminal insurrection. As I understand it, no prosecutor has even charged him with criminal insurrection.
But can the issue be decided in a civil case? The answer is almost certainly “no.”
First: Disqualification from office renders one a second-class citizen, a status normally associated with a felony conviction. The constitutional requirement of due process of law suggests any proceeding that leads to disqualification should be conducted under the very high standards of proof used in criminal trials rather than the lenient standard employed in civil cases.
Third: The Constitution doesn't place the responsibility for adopting the “Manner” of conducting a state’s presidential election on any court. It places that responsibility in the state’s legislature (Article II, Section 1, Clause 2). You can make a case, therefore, that the Constitution commits a decision to disqualify a presidential candidate from a state’s ballot to that state’s legislature—subject, of course, to the 14th Amendment power of Congress to remove the disability. If so, disqualification cases are “non-justiciable” and not subject to any court review.
Fourth: On the other hand, even lodging the decision in state legislatures is problematic. The presidency is a national office. If a state legislature (or court) disqualifies a candidate in its state, while other state legislatures (or courts) don't, the result could be chaotic. Those adopting the 14th Amendment surely didn't intend such a result. Indeed, this is further evidence that the 14th Amendment excludes the president and vice president from the disqualification clause.
Fifth: One might argue that Congress is the entity that decides a candidate is disqualified. But the 14th Amendment gives Congress no such power. It grants only the power to remove a disqualification. Anyway, leaving the decision with Congress is an open invitation to political abuse and to destruction of the independence of the presidency.
Possibly the best resolution of the “Who decides?” conundrum is that a candidate is disqualified if he or she is duly convicted of a crime of insurrection by proof beyond a reasonable doubt. Such a decision would have a national effect because of the Constitution’s full faith and credit clause (Article IV, Section 1).
But of all the methods of resolution, a civil case is the worst. No responsible court should hear such a case, and no responsible lawyer should bring it.