Commentary
Jordan Hutt is a 3L at Fordham University School of Law, where he is the Executive Notes Editor of the Voting Rights & Democracy Forum, as well as an Associate Editor of the Fordham Law Review. He holds a bachelor's degree from Binghamton University in Political Science.
By Jordan Hutt
February 8, 2024, 9:30 AM
Nestled in the Fourteenth Amendment is Section Three, which disqualifies “officers” who “engaged in insurrection or rebellion against [the United States]” during the Civil War. After January 6th, the words “insurrection” and “rebellion” have gained renewed importance, and many Americans may wonder whether former President Donald Trump should (or even can) be disqualified from holding office. This Commentary argues that Trump is in fact covered by Section Three.
Part I describes Section Three’s history and text. Part II describes legal precedent analyzing Section Three’s key clauses, explains the scholarly debate over whether the president is governed by those clauses, and asserts that the president is constrained by Section Three’s provisions. Finally, Part III encourages Congress to identify January 6th as an insurrection and empower the Department of Justice (“DOJ”) to enforce Section Three. If Congress cannot act, this Commentary urges states to enforce Section Three and bar dangerous presidents from the ballot.
Part I:
The Text and History of the Fourteenth Amendment, Section 3
Ratified in 1868, the Fourteenth Amendment is probably best known for Section One’s due process, privileges and immunities, and equal protection clauses.1See U.S. Const. amend. XIV, § 1. However, the Fourteenth Amendment contains a scantly used Section Three disqualification provision2U.S. Const. amend. XIV § 3 (emphasis added).:
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 member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
Designed to punish ex-confederates for their disloyalty,3See Griffin’s Case, Chase 364, 26 (“[I]t can hardly be doubted that the main purpose was to inflict upon the leading and most influential characters who had been engaged in the Rebellion, exclusion from office as a punishment for the offense.”). Section Three has not been especially relevant beyond the Civil War. However, given President Trump’s influence on January 6th, Section Three has gained renewed importance.
Section Three contains three key clauses: a jurisdictional clause, offense clause, and amnesty clause.4U.S. Const. amend. XIV, § 3; see also Josh Blackman & Seth Barrett Tillman, Is a President an “Officer of the United States” for the Purposes of Section 3 of the Fourteenth Amendment?, 15 N.Y.U J. L. & Lib. 1, 2–3 (2021). In pertinent part, the jurisdictional clause states that “no person shall . . . hold any office . . . having previously taken an oath, as a member of Congress, or as an officer of the United States . . .”5U.S. Const. amend. XIV, § 3 (emphasis added). Moreover, if a federal actor is not a member of Congress or an “officer,” Section Three is inapplicable. Should presidents not be “officers,” Section Three is inapplicable, even if they engaged in an insurrection.6See Blackman & Tillman, supra note 4, at 54 (“We conclude that the President is not a Section 3 ‘officer of the United States.’ Donald Trump is not disqualified by Section 3, and can run for re-election.”). The importance of Section Three’s jurisdictional clause cannot be overstated. Under Section Three, if a president is not “an officer of the United States,” they cannot be disqualified, even if they clearly engaged in an insurrection or rebellion.
The “offense” clause of Section Three includes two elements, the first connoting participation in an offense, and the second identifying the offense itself. First, the jurisdictional clause’s “officer” must have “engaged” in an insurrection or rebellion.7The final portion of Section Three’s offense clause, “given aid or comfort to the enemies thereof,” appears to require the same elements of action as “engaging” in an insurrection or rebellion. As explained below, “engaging” in an insurrection requires than an “officer” act voluntarily, providing anything of aid to the insurrection, with its success as the ultimate goal.8See infra Part II.B. Second, an “officer” must “engage” in the prescribed offense: an “insurrection or rebellion.”
Finally, the Amnesty Clause allows Congress to remove Section Three disabilities for “officers” disqualified from office for “engag[ing] . . . in insurrection or rebellion.”9U.S. Const. amend. XIV, § 3. Specifically, Congress “may vote by a two-thirds [of the House of Representatives and Senate], remove such disability.”10Id. In 1872, only four years after the Fourteenth Amendment’s ratification, Congress used the Amnesty Clause to broadly remove disqualification for ex-confederates.11See Amnesty Act of 1872, Pub. L. 42–193, 17 Stat. 142.
Prior to 1872, Section Three was an effective deterrent; in many instances, ex-confederate officials may have preemptively resigned, instead of resisting federal enforcement and criminal sanctions.12See Gerard N. Magliocca, Amnesty and Section Three of the Fourteenth Amendment, 36 Const. Comment. 87, 110 (2021). However, Section Three required proscriptive legislation.13Congress did occasionally enforce Section Three internally, such as when it refused to seat former North Carolina governor Zebulon Baird Vance. See James G. Blaine, Twenty Years of Congress: From Lincoln to Garfield, 531 n.1 (Norwich, Conn., Henry Bill Publ’g Co. 1886) (“Zebulon Vance had served in Congress prior to the war. He participated in the Rebellion and thus had become subject to the disabilities imposed by the Fourteenth Amendment. His disabilities were removed at a later date, but at this time their remission had not been asked and they were still resting upon him. With full knowledge that he was thus disqualified he was elected to the Senate, and the Senate declined to recognize an election defiantly made in the face of the constitutional objection.”). Those congressional exclusions, however, were exactly that: congressional. Beyond the bounds of the legislative branch, Section Three was limited without requisite enforcement legislation. In Griffin’s Case, Chief Justice Chase noted that it was “impossible” to disqualify by “simple declaration.”14Griffin’s Case, Chase 364, 26 (1869). Congress had to identify “particular individuals” to be excluded, and “enforce, by appropriate legislation, [Section Three.]”15Id.; see also U.S. Const. amend. XIV, § 5 (“The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.”). Griffin’s Case was not a massive victory for Confederates: it was a directive to Congress that it could, and should, use its legislative powers to enforce Section Three. Mr. Chase’s Decision in the Caeser Griffin Case, Richmond Daily Dispatch, May 22, 1869, at 2 (“Our friends may as well realize at once that there is no conflict between Mr. Chase’s opinion and the policy of Congress; and no sort of reason for hoping that we might obtain relief from the Supreme Court of the United States.”). If Congress wanted to bar influential ex-confederates from office, it was going to have to pass legislation to do so.
Taking Chief Justice Chase’s advice, Congress enacted the First Ku Klux Klan Act (the “Enforcement Act”) in 1870.16See First Ku Klux Klan Act, ch. 114, 16 Stat. 140 (1870). Under Section Fourteen of the Enforcement Act, federal prosecutors were required to bring quo warranto actions against those violating the Fourteenth Amendment, Section Three.17See id. §14. An action quo warranto (translating to “by what warrant”) asks a court to determine “by what warrant” someone holds office. Someone proceeding quo warranto essentially challenges someone’s qualifications for office. The DOJ was not only required to file quo warranto writs against violators, but “to prosecute . . . to the removal of such person[s] from office.”18See id. Additionally, the Enforcement Act required that courts ensure quo warranto actions preceded every case on the docket.19See id. Congress’s message was clear: federal prosecutors had to punish Section Three infractions, courts needed to fast-track adjudication, and courts were permitted to effectuate punishment through imprisonment, fines, or both.20See id. § 15 (instructing that any person who holds office in violation of the Fourteenth Amendment, Section Three “shall be deemed guilty of a misdemeanor . . . and, upon conviction . . . shall be imprisoned not more than one year, or fined not exceeding one thousand dollars, or both, the discretion of the court.”).
Nevertheless, the Enforcement Act’s potency was short lived. In the 1940s, Congress repealed the Enforcement Act to legislatively “cleanup” obsolete statutes. The days of the Confederacy had long passed, ex-confederates were deceased, and the United States was embroiled in World War II. On January 6th, 2021, however, Congress was left without Section Three extra-legislative enforcement mechanisms.
Part II: The President is Governed
by the Fourteenth Amendment, Section Three
Before any president could be subject to disqualification enforcement mechanisms, that president must fall within Section Three’s jurisdiction. As earlier mentioned, Section Three governs “officer[s] of the United States” who have “engaged” in an “insurrection or rebellion,” assuming Congress has not granted the “officer” amnesty.21See supra Part I; see also U.S. Const. amend. XIV, § 3. Discussing debate over these four elements, this Commentary asserts that President Trump (and the presidency altogether) is covered by Section Three.
A. The President is an “Officer of the United States”
As a threshold matter, a president must be an “officer of the United States.”22U.S. Const., amend. XIV, § 3. That issue is hotly debated: Josh Blackman and Seth Barrett Tillman argue that presidents are not “officer[s]” within the meaning of Section Three.23See generally Blackman & Tillman, supra note 4. First, Blackman and Tillman point to various portions of the Constitution using the phrase “officer of the United States”: the Oath or Affirmation Clause, the Appointments Clause, the Impeachment Clause, and the Commissions Clause.24See id. at 24. The Oath or Affirmation Clause covers “all executive and judicial Officers . . . of the United States,”25U.S. Const., Art. VI, cl. 3. and Section Three includes “officer[s] of the United States.”26U.S. Const., amend. XIV, § 3; see also Blackman & Tillman, supra note 4, at 15. Considering the clauses’ similarities, Blackman and Tillman focus on the president’s oath: rather than using Article VI’s Oath or Affirmation Clause, the president takes an oath under Article II’s Presidential Oath Clause.27See Blackman & Tillman, supra note 4, at 24. Using an oath other than Article VI’s Oath or Affirmation clause, which mirrors Section Three’s “officer” element, is presumably evidence that Section Three’s framers did not intend to disqualify presidents.28See id.
Civil war era courts did not distinguish among Article II and VI oaths when analyzing Section Three. For instance, Worthy v. Barrett2963 N.C. 199 (1869). considered whether a sheriff was an “officer” for the purposes of Section Three. Worthy clarified that “officers . . . of the United States are either [l]egislative, [e]xecutive or [j]udicial.”30Id. at 199. Officers, as opposed to “mere placemen . . . [took an oath] to support the Constitution of the State and of the United States.”31Id. at 202. Conversely, placemen took “an oath to perform the particular duty required of him . . . and [took] no oath to support the Constitution of the State, or of the United States.”32Id. Worthy pointed to one federal oath for Section Three “officers”: a constitutional oath. The president takes a constitutional oath under Article II,33See U.S. Const., Art. II, § 1, cl. 8 (“Beforehe enter on the Execution of his Office, he shall take the following Oath or Affirmation:— ‘I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.’”). and that oath’s placement was irrelevant to judicial interpretation of Section Three.
Blackman and Tillman also point to the Appointments, Commissions, and Impeachment Clauses.34See Blackman & Tillman, supra note 4, at 24. The Appointments Clause states that the president “shall nominate . . . with the Advice and Consent of the Senate . . . all other Officers.”35U.S. Const., Art. II, § 2, cl. 2. Similarly, the Commissions Clause allows the president to “[c]omission all the officers of the United States.”36U.S. Const., Art. II, § 3. Under the Impeachment Clause, the “President, Vice President, and all civil officers” may be subject to impeachment.37U.S. Const., Art. II, § 4. Taking the clauses together, Blackman and Tillman argue that “[a]ll means all.” They maintain that because the president appoints “all other Officers” and commissions “all the officers of the United States,” an “officer” cannot be a person who, like the president, does the appointing and commissioning. Further, the Impeachment Clause’s separation of “President” from “all civil officers” supposedly indicates that presidents are not encompassed within “all civil officers.”
Those linguistic distinctions ignore a key difference: the Appointments, Commissions, and Impeachment Clauses are located in Article II,38See supra notes 35–37 and accompanying text. whereas Section Three is located in the Fourteenth Amendment.39See U.S. Const. amend. XIV, § 3. Article II grants the president both inherent and enumerated powers,40See U.S. Const., Art. II; see also Erwin Chemerinsky, Constitutional Law: Principles and Policies363 (Rachel E. Barkow et al. eds., Wolters Kluwer 6th ed. 2019) (“Article II of the Constitution begins, ‘The executive Power shall be vested in a President of the United States of America.’ Article II then enumerates specific powers of the president.”). The outlier is the Impeachment Clause, which restrains presidential power. See U.S. Const., Art. II, § 4. Nonetheless, that the Impeachment Clause is found in Article II, among three other sections granting presidential power, suggests its textual meaning should not be imported to Fourteenth Amendment, Section Three. but the Section Three of the Fourteenth Amendment disqualifies actors subject to its jurisdiction.41See U.S. Const. amend. XIV, § 3. Bearing in mind that Article II predated the Fourteenth Amendment by eighty years, the meaning of three Article II clauses have little relevance to Section Three’s “officers,” who could only have their authority abrogated.
That takes us to Blackman and Tillman’s second assertion: that the meaning of “officer of the United States” did not change from 1788 to 1868.42See Blackman & Tillman, supra note 4, at 21–31. From Blackman and Tillman’s perspective, “[a]bsent contrary evidence, the default presumption should be one of linguistic continuity, rather than a presumption of linguistic drift.”43Id. at 25. Their reasoning might be more persuasive if they still assumed linguistic continuity;44See Josh Blackman & Seth Barrett Tillman, What Happens If the Biden Administration Prosecutes and Convicts Donald Trump of Violating 18 U.S.C. § 2383?, 2021 U. Ill. L. Rev. Online 190, 199 (2021) (“We have explained that the phrase ‘office … under the United States’ as used in the Constitution of 1788 did not reach any elected federal officials. But the Fourteenth Amendment was ratified eight decades later in 1868. It is possible that linguistic drift occurred.”). but, Section Three precedent refutes linguistic continuity. Blackman and Tillman claim that “officers” have historically been understood as unelected officials.45See Blackman & Tillman, supra note 4, at 30 (quoting Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 497 (2010) (“[t]he people do not vote for the ‘Officers of the United States.’”)). The case Tillman and Blackman quote, Free Enterprise Fund, concerned the President’s Article II powers to remove members of the Public Company Accounting Oversight Board. See Free Enter. Fund, 561 U.S. at 483-84. Aside from linguistic continuity, Free Enterprise Fund is not especially useful for determining the meaning of Section Three. Griffin’s Case, which concerned the validity of an ex-confederate judge’s verdict, foreclosed the issue: “persons in office by lawful appointment or election before the promulgation of the [F]ourteenth [A]mendment, are not removed therefrom by the direct and immediate effect of [Section Three.]”46Griffin’s Case, 26 (emphasis added). Justice Chase continued by noting that “legislation by congress is necessary to give effect to [Section Three.]” Inasmuch as Griffin’s Case was an 1869 decision addressing Section Three disqualification, the term “officer” evidently included elected officials.
Finally, precedent addressing Congress’s ability to delegate power to the executive indicates the president is an “officer.” Buckley v. Valeo, a case addressing the Federal Election Campaign Act’s constitutionality, stated that “officers” included “any appointee exercising significant authority pursuant to the laws of the United States.”47424 U.S. 1, 126 (1976). I.N.S. v. Chadha clarified Buckley’s ambiguous definition of “officer,” specifying that “officers” were people whose “legal rights, duties and relations” were altered by Congress.48I.N.S. v. Chadha, 462 U.S. 919, 952 (1983). Assuming officers could be elected, Congress routinely alters presidents’ powers.49See, e.g., War Powers Resolution, Pub. L. No. 93-148, 87 Stat. 555 (limiting presidential power to introduce armed forces into hostilities); see also U.S. Const. Art. I, § 7, cl. 2 (allowing Congress to override a presidential veto by two-thirds votes of both the House of Representatives and Senate); see also Jerry L. Marshaw, Of Angels, Pins, and For-Cause Removal: A Requiem for the Passive Virtues, U. Chi. L. Rev. Online (Aug. 27, 2020) https://lawreviewblog.uchicago.edu/2020/08/27/seila-mashaw (noting that Congress can “almost always” provide that the President can only remove agency officials for cause.). Given that the constitutional clauses Blackman and Tillman reference are not especially helpful, linguistic drift and congressional restrictions on presidential power suggest the president is an “officer.”
B. President Trump “Engaged” in an “Insurrection or Rebellion”
Having determined presidents are “officers,” President Trump clearly “engaged” in an “insurrection or rebellion.”50U.S. Const. amend. XIV, § 3. Little precedent describes Section Three’s use of “engaged,” but two Reconstruction Era cases provide useful guidance. In United States v. Powell, a judge instructed a jury on the meaning of “engaged,” where a confederate sheriff was accused of “engaging” in “insurrection or rebellion.”51United States v. Powell, 27 F. Cas. 605 (C.C.D. N.C. 1871) (No. 16,079). The court explained that “engaged” connotes “a voluntary effort to assist the [i]nsurrection or [r]ebellion, and to bring it to a successful termination.”52Id. at 607. Worthy, another earlier mentioned sheriff’s case, found that “voluntarily aiding the [Confederacy], by personal service, or by contributions . . . of any thing that was useful or necessary in the Confederate service” constituted “engagement.”53Worthy v. Barrett, 63 N.C. 199, 203 (1869). Together, Worthy and Powell indicate that, to “engage” in an insurrection, a person must voluntarily assist an insurrection—and can do so by minute means, so long as they are “useful” or “necessary”—with the insurrection’s success as the ultimate goal.
Rowan et al. v. Taylor-Greene54See Initial Decision, Rowan et al. v. Taylor Greene, No. 2222582-OSAH-SECSTATE-CE-57-Beaudrot (Ga. Off. Admin. Hearings, May 6, 2022).mirrored that interpretation of the Worthy-Powell standard. Determining whether Representative Marjorie Taylor Greene “engaged” in an “insurrection or rebellion” on January 6th, the court found that55Id. at 14. Representative Taylor-Greene’s attorney, James Bopp, stated that “engages” deals with “conduct, not speech.” Transcript of Oral Argument, Rowan et al. v. Taylor Greene, 2222582-OSAH- SECSTATE-CE-57-Beaudrot (2022) (No. 2222582) [hereinafter “Greene Hearing Transcript”], 83. Evinced by the presiding judge’s final opinion, however, that is incorrect: certain words “in furtherance of an insurrection” suffice. See Initial Decision, Rowan et al. v. Taylor Greene, at14.:
On balance, therefore, it appears that ‘engage’ includes overt actions and, in certain limited contexts, words used in furtherance of the insurrections and associated actions . . . Marching orders or instructions to capture a particular objective, or to disrupt or obstruct a particular government proceeding, would appear to constitute ‘engagement’ under the Worthy-Powell standard.
President Trump directed armed supporters to walk to the Capitol,56Final Report of the Select Committee to Investigate the January 6th Attack on the United States Capitol, Select Committee to Investigate the January 6th Attack on the United States Capitol, 640, 647 (2022) [hereinafter January 6th Report], https://www.govinfo.gov/content/pkg/GPO-J6-REPORT/pdf/GPO-J6-REPORT.pdf which may be “marching orders” furthering rebellion. In fact, as stated in the Final Report of the Select Committee to Investigate the January 6th Attack on the United States Capitol, Trump urged supporters to “try and give [Republicans] . . . the kind of pride and boldness that they need to take back our country.” Stating that Vice President Pence lacked the “courage” to give “[s]tates a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones” could have encouraged supporters to obstruct the electoral vote count. Only two minutes after tweeting, Trump called Senator Tommy Tuberville to discuss electoral vote objections. If Trump’s mental state was still unclear, the words of Rudolph Giuliani, Trump’s lead attorney, to Senator Tuberville were clarificatory: Giuliani wanted “our Republican friends to just slow [the electoral vote count] down.” While Trump’s failure to act may meet the Worthy-Powell standard, Trump’s speeches, tweets, calls to congressmen, and actions of his foremost attorney indicate that Trump “engaged” in an insurrection.
Even if Trump “engaged,” was what he “engaged” in an “insurrection or rebellion”? Recent Section Three lawsuits suggest it was. State v. Griffin, coincidentally another rogue sheriff’s case, addressed whether an Otero County sheriff engaged in “insurrection or rebellion” by breaching the Capitol on January 6th.572022 WL 4295619 (D.N.M. Sept. 6, 2022). Delineating the meaning of “insurrection,” the Griffin court found that the term refers to an “(1) assemblage of persons, (2) acting to prevent the execution of one or more federal laws, (3) for a public purpose, (4) through the use of violence, force, or intimidation, by numbers.”58Id. at *18. Griffin’s test was not arbitrary; eighteenth century rebellions mirrored Griffin’s factors, elements eighteenth century courts extensively recounted.59See, e.g., Case of Fries, 9 F. Cas. 924, 930 (C.C.D. Pa 1800) (No. 5,127) (finding that “any insurrection or rising of any body of the people, within the United States, to attain or effect by force or violence any object of a great public nature, or of public and general (or national) concern, is a levying of war against the United States… or to prevent by force or violence, the execution of any statute of the United States…”). The Case of Fries concerned the trial of John Fries, a Continental Army and Whiskey Rebellion captain. See Jane Shaffer Elsemere, The Trials of John Fries 103(4) The Pennsylvania Magazine and Biography 432, 432 (1979). As part of the “Hot Water War” of 1799, Fries and approximately 100 others rebelled to oppose taxes collected to fund war in Europe. See id. at 433. This particular rebellion was infamously termed “Fries Rebellion.” See id. Insofar as the Whiskey and Fries’ rebellions still permeated the American conscience,60See Thomas P. Slaughter, The Whiskey Rebellion: Frontier Epilogue to the American Revolution 5(Oxford University Press 1986) (“The story of the Whiskey Rebellion is an oft-told tale.)” Cases originating from the Whiskey Rebellion appear to have a similar understanding of “insurrection.” See, e.g., U.S. v. Vigol, 2 U.S. 346, 346–47, (C.C.D. Pa. 1795)(“With respect to the intention, likewise, there is not, unhappily, the slightest possibility of doubt: To suppress the Office of Excise… to compel the resignation of Wells the Excise Officer, so as to render null and void, in effect, an act of Congress…”); see also U.S. v. Mitchell, 2 U.S. 348, 355(C.C.D. Pa. 1795)(“[W]hat was the general object of the insurrection? If its object was to suppress the excise offices, and to prevent the execution of an act of Congress, by force and intimidation, the offence, in legal estimation, is High Treason; it is an usurpation of the authority of government; it is High Treason by levying of war. Taking the testimony in a rational and connected point of view, this was the object: It was of a general nature, and of national concern.”). Griffin recounts the meaning of “insurrection” as understood by nineteenth-century Americans and Section Three’s framers.
Viewing January 6th in even a positive light, Trump engaged in an “insurrection or rebellion,” as tens of thousands of Trump’s supporters assembled and stormed the Capitol.61See January 6th Report at 663 (noting “that [it] had swelled to approximately 20,000 from storming the U.S. Capitol.’”); see also Capitol Attack: Additional Actions Needed to Better Prepare Capitol Police Officers for Violent Demonstrations, U.S. Gov’t Accountability Office (March 7, 2022) [hereinafter Capitol Attack], https://www.gao.gov/assets/gao-22-104829.pdf. To the January 6th Committee, their motivation was obvious: to prevent the lawful counting of electoral votes. The purpose of Trump’s pre-insurrection rally was to “save America,” assumedly because his supporters believed he was “unceremoniously and viciously stripped” of the presidency. This was accomplished by “violence, intimidation, or force by numbers[;]” tens of thousands of people breached the Capitol, injured 114 officers, and killed Brian Sicknick.62See Capitol Attack at 1, 3 n. 5; see also Loss of USCP Officer Brian D. Sicknick, U.S. Capitol Police (Jan. 7, 2021) https://www.uscp.gov/media-center/press-releases/loss-uscp-colleague-brian-d-sicknick. Accounting for the fact that the analogous crime of treason included a wide variety of acts, even miniscule ones,63The Crimes Act of 1790 developed the United States’ first criminal code and punished treason. See Crimes Act of 1790, ch. 9, 1 Stat. 112, § 1 (“[A]ny person . . . owing allegiance to the United States of America, shall levy war against them, or shall adhere to their enemies, giving them aid and comfort within the United States or elsewhere . . . shall be adjudged guilty of treason . . .”). The U.S. Constitution’s Treason Clause contains similar language to the Act. See U.S. Const., Art. III, § 3, cl. 1 (“Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.”). Neither the Crimes Act of 1790, nor the Constitution’s Treason clause, defined the specific acts constituting treason; like the infinite possibilities of contract, the Act and Constitutions’ framers could not predict all types of treason, and purposely defined treason broadly. See Charge to Grand Jury—Treason, 30 F. Cas. 1036, 1036 (C.C.S.D. Oh. 1861) (No. 18,272). Even meager actions distant from the scene of main treasonous acts could suffice as treason. See id. at 1037. it is hard to deny that Trump engaged in “insurrection or rebellion.”
C. President Trump is not Protected by
Section Three’s Amnesty Clause
Section Three’s amnesty provision provides that Congress may remove Section Three disqualification by two-thirds vote of both houses.64See U.S. Const. amend. XIV. Congress first used the Amnesty Clause in 1872, eliminating “all [Section Three] political disabilities imposed” on congressmen, except those from the 36th and 37th Congresses, as well as certain federal officers.65See Amnesty Act of 1872, Pub. L. 42–193, 17 Stat. 142; see also supra notes 33–34. Some have argued that the Amnesty Act of 1872 applied prospectively to future insurrections66See Cawthorn v. Amalfi, 35 F.4th 245 (4th Cir. 2022).: that argument would be futile for Trump.
Specifically, in Cawthorn v. Amalfi, voters alleged Representative Madison Cawthorn was disqualified under Section Three of the Fourteenth Amendment for encouraging Trump supporters on January 6th.67See id. at 249. On appeal to the Fourth Circuit, Cawthorn maintained that the Act “prospectively lifted the constitutional disqualification for all future rebels or insurrectionists, no matter their conduct.”68Id. The Fourth Circuit rejected Cawthorn’s argument.69See id. at 248–49.
First, the court observed that the Act removed “political disabilities imposed.”70Id. at 258. That meant Congress removed prior disqualification for ex-confederates, not for every future rebel in any insurrection.71See Cawthorn v. Amalfi, 35 F. 4th at 258. Historically speaking, Congress was “laser-focused” on dealing with “hordes” of ex-confederates seeking amnesty; the Act was only intended for ex-confederates.72Id. at 259–60. Granting amnesty to all future insurrectionists would have raised serious questions about “the outer limits of Congress’s power under Section [Three.]”73Id. at 260. Removing something implies that it already existed, and allowing Congress to remove political disabilities not yet imposed would have strained Section Three’s text.74See id. at 260–61. The Court, while not disqualifying Cawthorn, held that the Act did not categorically remove all future Section Three political disabilities.75See id. at 261. If Cawthorn unsuccessfully requested prospective amnesty, there is no reason to believe Trump would be successful.
Part III: Congress or the States Should Identify January 6th
as an Insurrection and Revitalize Section Three Enforcement
Trump is covered by Section Three and cannot claim amnesty.76See supra Part II. But coverage alone is meaningless. As Griffin’s Case explains, it is “impossible” to exclude individuals by a “simple declaration.”77See Griffin’s Case, Chase 364, 26 (1869); see also supra notes 24–25 and accompanying text. Rather, Congress must use its legislative authority via Section Five of the Fourteenth Amendment,78See U.S. Const. amend. XIV, § 5. (“The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.”). prescribing the “particular individuals” to be disqualified.79Griffin’s Case, Chase 364 at 26. Congress should reinstate the DOJ’s quo warranto powers, give quo warranto actions federal docket priority, and identify January 6th as an insurrection to ascertain the “individuals” the DOJ must pursue. If Congress fails to act, states should establish or strengthen their own quo warranto systems.
Wisely or not, Congress disposed of Section Three quo warranto actions during a 1940s legislative “cleanup.” Without an enforcement mechanism, Section Three is only enforceable within Congress.80See Blackman & Tillman, supra note 4. The natural solution would be to reinstate the DOJ’s quo warranto powers; Section Three would be enforceable beyond Congress. Issuing a joint statement identifying January 6th as an insurrection, Congress could identify “particular individuals” the DOJ should prosecute. Taken together, quo warranto powers and a joint statement would meet the standard set out in Griffin’s Case. For good measure, Congress should mandate federal docket priority for Section Three quo warranto actions, ensuring that insurrectionist presidents’ cases are swiftly resolved.
Getting Congress to agree to anything is not easy, much less declaring January 6th a presidentially incited insurrection. Legislation empowering the Attorney General to bring Section Three quo warranto actions was introduced in February 2021, but never progressed to a floor vote.81See H.R. 1405, 117th Cong. (2021). If Congress cannot pass comprehensive Section Three legislation, states should do so themselves. Some states have existing enforcement mechanisms, such as New Mexico’s quo warranto writ system used in State v. Griffin.82See State v. Griffin, 2022 WL 4295619 (D.N.M. Sept. 6, 2022); see also Liz Hempowicz, David Janovsky, & Norman Eisen, The Constitution’s Disqualification Clause can be Enforced Today, Project on Gov’t Oversight (Nov. 15, 2022)(“States have their own processes that allow a specified challenger to petition the state’s designated certifying body to find that an individual is not qualified to hold the office for which they are running.”) https://www.pogo.org/report/2022/11/the-constitutions-disqualification-clause-can-be-enforced-today#heading-2. In states without quo warranto writ systems, passing enforcement legislation may be easier than on the federal level, which enjoys more political optics.83Section Three accountability advocates have suggested that officials charged with administering oaths of office could refuse to administer oaths to insurrectionist presidents. See Hempowicz et al., supra note 83. Refusing to administer oaths of office likely would not be a permanent solution; the country would not have a functioning executive branch for as long as oaths were not administered. Already, nonprofit groups across the country are preparing Section Three lawsuits to deny Trump state-level ballot access. The outcomes of that litigation may vary and would not be as comprehensive as federal legislation. Nonetheless, state-level reforms and litigation are effective starting points for accountability.
Section Three, like many constitutional provisions in American history, concerned those who betrayed their oath to the United States.84See U.S. Const. amend. XIV, § 3. Over 150 years later, the January 6th insurrection made Section Three’s insurrectionist bar even more important. Trump’s involvement on January 6th may satisfy Section Three’s insurrectionist bar, but without clear identification of responsible individuals and enforcement legislation, Section Three is simply a historical relic.
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