Supporters of former President Donald Trump say that no state has the right to seek remedy from Section 3 of the United States Constitution’s Civil War-era 14th Amendment when such a person has not even been charged explicitly with “insurrection” or “rebellion” in a criminal case. Section 3 states:
“No person shall … hold any office, civil or military, under the United States … who, having previously taken an oath … as an officer of the United States … 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.”
As of today, Trump – regardless of one’s political or ethical views of the man – has not been charged with “insurrection” or “rebellion” in any of his criminal cases, including the Washington, D.C., election interference case brought by special counsel Jack Smith. Smith’s office charged Trump with conspiracy to defraud the U.S., conspiracy to obstruct an official proceeding, obstruction of an attempt to obstruct an official proceeding, and conspiracy against rights – damaging charges indeed – but arguably, not charges that fall directly under Section 3, so say his supporters.
Trump’s ardent opponents point to all of his actions leading up to, during, and after the January 06, 2021, attack on the United States Capitol as amounting to clear acts of “insurrection” and “rebellion,” regardless of such specific verbiage being left out of the charges. Since early 2023, voters and advocacy groups around the country have time and time again brought Section 3 challenges in courts, attempting to block the former president from appearing on ballots for state primaries and caucuses before the general election begins. The nature and status of the challenges vary greatly from state to state.
So, who’s right, who’s wrong, and why?
But herein lies the problem. Are we even asking the right question? The real issue had not been addressed – until the Supreme Court finally decided to weigh in. To be clear, it is not for the states to decide, one by one, at their choosing, if Section 3 of the 14th Amendment can be used against the former president; instead, it is for Congress and the United States Supreme Court to render judgment. Trump’s lawyer, Jonathan Mitchell, argued to the Supreme Court that even an “admitted insurrectionist” could not be removed from the ballot, stating it was the role of Congress to determine whether someone should be disqualified.
“Even if the candidate is an admitted insurrectionist, Section 3 still allows the candidate to run for office, and even win election for office, and then see whether Congress lifts that disability after the election,” Mitchell said in response to a question from Chief Justice John Roberts.
“This happened frequently in the wake of the 14th Amendment, where Confederate insurrectionists were elected to office,” Mitchell said.
States need to be reminded that the words of Section 3 of the 14th Amendment are found in the United States Constitution, not Colorado’s, Maine’s, or any other state. Let the Supreme Court render judgment on the former President.
Charles Denyer is an Austin-based cybersecurity, national security, and global data privacy expert. He has direct access to top political and business leaders throughout the world, is a national security source to major news outlets, and is an established author and personal biographer to three U.S. Vice Presidents. He has written two books about the US Vice Presidency, including “Number One Observatory Circle: The Home of the Vice President of the United States,” and “Our Nation’s No. 2: The Rising Influence of America’s Modern Vice Presidency.” His forthcoming publication “Into the Dark – How the U.S. Intelligence Community Protects America, and the World,” will be released later in 2024.
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