By Kayvan Farchadi
July 19, 2023, 4:30 PM

Although all three federal government branches have called the January 6th mob attack on the Capitol an “insurrection,” the United States Department of Justice has not yet charged any January 6th participant under the Civil War-era criminal “rebellion or insurrection” statute, 18 USC § 2383. Moreover, given the many other potential criminal charges available to Special Counsel Jack Smith, he too may forgo bringing this specific charge against former President Trump for his efforts to subvert the 2020 presidential election.

This exercise of prosecutorial discretion by the DOJ has led some to argue that public officials who participated in the January 6th insurrection cannot be disqualified under Section 3 of the Fourteenth Amendment (the “Disqualification Clause”), which bars from office those who engaged in insurrection, absent a criminal conviction. This view is mistaken.

The Disqualification Clause’s text, history, and existing precedents make clear that disqualification does not require a prior criminal conviction.¹ Therefore, it is unsurprising that between 1869 and 2022 none of the individuals formally disqualified under that constitutional provision were charged under the criminal insurrection statute or its predecessor statutes.²

The lack of charges under the criminal insurrection statute against January 6th insurrectionists reflects the DOJ’s prosecutorial judgment to pursue charges under other criminal statutes that are used more frequently and carry higher maximum prison sentences. For example, the DOJ has successfully prosecuted leaders of the Oath Keepers and Proud Boys, violent extremist groups who participated in the January 6th insurrection, under 18 U.S.C. § 2384, the “seditious conspiracy” statute. Not only does Section 2384 criminalize similar conduct as Section 2383, but it also carries a 20-year maximum prison sentence, compared to Section 2383’s 10-year maximum. 

Nevertheless, how the DOJ exercises its prosecutorial judgment, as it manages its caseload of over one thousand January 6th criminal cases, has no bearing on the applicability of the Constitution’s Disqualification Clause. Whether or not they have been charged or convicted of any crime, federal or state officers who swore to defend the Constitution and then engaged in the insurrection are disqualified from holding public office again.

The Criminal Insurrection Statute

Since our nation’s founding, the federal government and the states have criminalized acts of insurrection against the government, though prosecution of these offenses has been rare.³

The modern criminal insurrection statute originated as the Second Confiscation Act, which President Lincoln signed into law during the Civil War. Since then, the core of the offense has remained unchanged: it is a federal crime to “incite, set on foot, assist, or engage in any rebellion or insurrection.” The most extensive discussion of the provision appears in United States v. Greathouse,⁴ an 1863 case presided over by Supreme Court Justice Stephen Field. Applying the Second Confiscation Act, the Court convicted the defendants for preparing an armed vessel and setting sail to attack United States ships in the Pacific on the Confederacy’s behalf, despite never actually carrying out an attack.⁵

Apart from Greathouse, the criminal insurrection statute was not widely used to prosecute conduct related to the Civil War, since Presidents Lincoln and Johnson pardoned almost all Confederates en masse in a series of executive actions between 1863 and 1868. Since Greathouse, there have been no reported prosecutions under Section 2383 or its predecessor statutes. 

The Disqualification Clause

The Constitution establishes a number of qualifications for holding public office. Article II, Section 1 states that the President must be at least 35 years of age, be a natural-born citizen, and have lived in the United States for at least 14 years. The Twenty-Second Amendment bars any person from serving more than two presidential terms. 

Section 3 of the Fourteenth Amendment provides an additional qualification: “No person shall . . . hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath” as a federal or state officer “to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same.” Congress can remove the disqualification by a two-thirds vote in both houses, as it did for most former Confederates in the Amnesty Act of 1872.

The Disqualification Clause was intended to exclude former Confederates from government positions after the Civil War, as well as public officials who participated in future insurrections or rebellions. When Congress’s Joint Committee on Reconstruction issued its report in 1886, it described elections in the South as resulting “almost universally . . . in the election of notorious and unpardoned rebels . . . who made no secret of their hostility to the government and the people of the United States.”⁶ Accordingly, the Joint Committee proposed “the exclusion from positions of public trust of, at least, a portion of those whose crimes have proved them to be enemies to the Union, and unworthy of public confidence.”⁷

After the Civil War, it was widely understood that former Confederates who had previously taken an oath to the Constitution were disqualified from holding public office. In fact, during the brief window for disqualifying ex-Confederates,⁸ Congress received thousands of amnesty requests to “remove” these Section 3 disqualifications, despite no prior conviction or formal adjudication.⁹ 

At least eight public officials, ranging from a U.S. Senator to a local postmaster, have been formally adjudicated to be disqualified from public office under the Disqualification Clause since its ratification in 1868.¹⁰ Yet none of these individuals were prosecuted under the criminal insurrection statute or its predecessors. In the most recent successful disqualification case, brought and won last year by Citizens for Responsibility and Ethics in Washington against January 6th mobilizer and former Commissioner of Otero County, New Mexico, Couy Griffin, the defendant was removed from office despite not storming the U.S. Capitol building or engaging in violence on the day of the attack. Though Griffin was convicted of trespassing in federal court, a New Mexico judge found that he engaged in insurrection by mobilizing men to “battle” on January 6th as well as assuming a leadership position in the mob as it trampled police officers in the Capitol tunnel.¹¹

Contrasts and Importance of Disqualification Clause Enforcement

While both the criminal insurrection statute and the Disqualification Clause can address the conduct of public figures who engage in insurrection, the provisions differ significantly in function, scope, purpose, and means of enforcement. 

The foremost difference between the two is that the criminal insurrection statute imposes criminal sanctions, including fines, imprisonment for a maximum of 10 years, or both. Further, a felony conviction affects an individual’s rights in a wide range of areas. And like any criminal charge, a conviction under the statute requires proof beyond a reasonable doubt—a higher burden than applies in civil cases. 

In contrast, violations of the Disqualification Clause carry no criminal penalty. The sole sanction is disqualification from holding public office. And because Disqualification Clause challenges are asserted through civil and administrative channels, including through state laws permitting voters to challenge candidate qualifications,¹² these claims are subject to the lower “preponderance of the evidence,” i.e., more likely than not, evidentiary standard. 

Also, the Disqualification Clause is narrower in scope: it only applies to public officials who violated an oath to support the Constitution. One who engages in insurrection without having previously taken an oath is not subject to disqualification. The criminal insurrection statute, by contrast, applies to anyone who engages in the proscribed conduct—no prior constitutional oath is required. 

This lower evidentiary standard for disqualification is appropriate given the non-criminal stakes. As U.S. Senator John Henderson (MO) explained during the legislative debates over the Fourteenth Amendment, Section 3 merely “fix[es] a qualification for office” and is not a “punishment mean[t] to take away life, liberty, or property.”¹³ 

As the bipartisan House Select Committee to Investigate the January 6th Attack on the United States Capitol found, the violent mob ginned up and sent to the Capitol by former President Trump succeeded in delaying the constitutionally-mandated counting of electoral college votes and disrupted the peaceful transfer of presidential power for the first time in American history. 

All public officials who engaged in the January 6th insurrection violated their oath to the U.S. Constitution. Though the DOJ may not prosecute them under the criminal insurrection statute, the Fourteenth Amendment framers understood that in order to secure our democracy and prevent a second Civil War, these public officials cannot be permitted to hold public office again.  

References

1. See American Jurisprudence, “Litigation of Criminal Prosecutions for Treason, Insurrection, and Seditious Conspiracy,” 179 Am. Jur. Trials 435 (2023); Congressional Research Service, The Insurrection Bar to Office: Section 3 of the Fourteenth Amendment (2022) https://crsreports.congress.gov/product/pdf/LSB/LSB10569. ↩︎
2. Citizens for Ethics and Reform in Washington (CREW), “The precedent for 14th Amendment disqualification,” (July 7, 2023), https://www.citizensforethics.org/reports-investigations/crew-reports/past-14th-amendment-disqualifications/. ↩︎
3. Separately, the Constitution’s treason provision resides in Article III, addressing the judicial power of the United States, and primarily concerns limiting how treason may be charged and punished, rather than what constitutes treason. See U.S. Const. art. 3, § 3, cl. 1. ↩︎
4. 26 F. Cas. 18 (C.C.N.D. Cal. 1863) (No. 15,254). ↩︎
5. For a more detailed discussion of the history and text of 18 U.S.C. § 2383, see Norman Eisen, Noah Bookbinder, Donald Ayer, Joshua Stanton, E. Danya Perry, Debra Perlin, and Kayvan Farchadi, Trump on Trial: A Model Prosecution Memo for Federal Election Interference Crimes Second Edition, Just Security (July 2023), https://www.justsecurity.org/wp-content/uploads/2023/07/model-prosecution-memo-january-6th-election-interference-just-security-july-2023.pdf. ↩︎
6. Joint Committee on Reconstruction, 39th Cong., Report of the Joint Committee on Reconstruction, x (1st Sess. 1866); see also Magliocca, Gerard N., Amnesty and Section Three of the Fourteenth Amendment,36 Constitutional Commentary 87 (2021), available at https://ssrn.com/abstract=3748639. ↩︎
7. Id. at xviii; 2 James G. Blaine, Twenty Years of Congress: From Lincoln to Garfield, 190 (Boston: Rand, Avery, and Company, 1884) (“It was therefore the general expectation of the people that by some law, either statute or organic, the political privileges of these men, so far as the right to hold office was involved, should be restricted . . .”). ↩︎
8. Congress removed the Section 3 disqualification for most ex-Confederates in the Amnesty Act of May 22, 1872 less than four years after ratification of the Disqualification Clause. ↩︎
9. See The National Archives, “Preliminary Inventory of the Records of the Select Committee on Reconstruction, 1867-71,” compiled by George P. Perros (1960), available at
   https://www.citizensforethics.org/wp-content/uploads/2023/06/Confederate-Amnesty-Petitions-PI_0233_Select-Committee-on-Reconstruction-1867-71.pdf. ↩︎
10. See CREW, “The precedent for 14th Amendment disqualification,” supra note 2. ↩︎
11. See State v. Griffin, No. D-101-CV-2022-00473, 2022 WL 4295619 at *34 (N.M. Dist. Sep. 06, 2022). ↩︎
12. See American Jurisprudence, supra note 1. ↩︎
13. Cong. Globe, 39th Cong., 1st Sess. 3036 (June 8, 1866) (statement of Sen. Henderson); see also Sandlin, 21 La. Ann. at 632–33 (Section 3 suit was brought “not to inflict punishment or to impose penalties or disabilities,” but “to inquire legally into [defendant’s] right to hold … office”). ↩︎