Some Reasons Why Lawsuits to Disqualify Trump Will Fail—Part II

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.
Some Reasons Why Lawsuits to Disqualify Trump Will Fail—Part II
Former U.S. President Donald Trump arrives to deliver remarks to the Georgia state GOP convention at the Columbus Convention and Trade Center in Columbus, Ga., on June 10, 2023. (Anna Moneymaker/Getty Images)
Rob Natelson

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.

The first part explained hurdle No. 1—the cases aren't legally “ripe,” and those suing likely have no legal “standing” to do so—and hurdle No. 2: The 14th Amendment’s disqualification clause may not apply to the president at all.
Part two examines several additional hurdles.

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.
Judges and lawyers interpret words in legal documents in accordance with the circumstances in which they were adopted. To those who adopted the original Constitution, an “Insurrection” was a sustained armed uprising like the American Revolution or Shays’s Rebellion. The 14th Amendment was proposed in 1866 and fully ratified in 1868. Its references to “insurrection” and “rebellion” were triggered by a Civil War in which more than 600,000 Americans had died.

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.

The claim that activities other than the Capitol riot were part of an “insurrection” rests largely on uncritical use of the highly partisan congressional Jan. 6 report and on the narratives of media hostile to President Trump—the same media that claimed just hours after the voting and before any investigation was possible that there was “no evidence” of election irregularities. Those of us familiar with the other side know that there certainly was evidence of serious irregularities in key states. There was enough evidence that President Trump could have believed in good faith that they affected the outcome.

Those who characterize his statements as pure lies are either ignorant or suppressing information that they don't want to know.

As for demands for reviews and recounts, they're, of course, features in every disputed election. The creation of alternative slates of electors was an effort to follow a precedent set in the disputed 1876 and 1960 presidential elections. And while I disagree with President Trump’s opinion that the vice president could delay the vote count, this opinion stemmed from a distinguished legal scholar’s advice that President Trump had every right to believe.
All of these activities (except the riot, of course) suggest an effort to “work” the existing procedures, not an effort to overturn them. President Trump has his faults, but he isn't Jefferson Davis—or even Daniel Shays—as much as those who hate him make him out to be.

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.”

At least three federal appeals court decisions have limited the constitutional term “invasion” to an armed incursion by foreign troops (pdf) (pdf) (pdf). This suggests that “insurrection” is of the same quality—a coordinated, sustained, armed attack by soldiers or people acting as soldiers—as in the American Revolution, Shays’s Rebellion, or the Civil War. To be sure, I don't agree with those appeals court decisions. I believe the historical evidence shows that the Constitution uses “invasion” in a broader sense. Nevertheless, the three appeals court cases present yet another obstacle to the Trump disqualification lawsuits.

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.

Angry speech, isolated riots, and even election interference can be crimes, but they're neither treason nor insurrection.

Hurdle No. 5: The First Amendment and Free Speech

The 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.

Trump haters often unconscionably omit his words “peaceably and patriotically” when describing the Jan. 6, 2021, breach of the Capitol. The petition in the recently filed Colorado lawsuit (see Part I) also omits them, as does the academic study upon which it's largely based.

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.

Second: In court proceedings, important interests may go unheard. In the Colorado case, for example, the petitioners and one of the two respondents are all Trump critics. President Trump stands alone in the case. Unrepresented are the state legislature, pro-Trump voters, and political committees who support his candidacy.

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.

Views expressed in this article are opinions of the author and do not necessarily reflect the views of The Epoch Times.
Robert G. Natelson, a former constitutional law professor who is senior fellow in constitutional jurisprudence at the Independence Institute in Denver, authored “The Original Constitution: What It Actually Said and Meant” (3rd ed., 2015). He is a contributor to The Heritage Foundation’s “Heritage Guide to the Constitution.”