Yes, Trump Is Disqualified from Office

He and his co‐​conspirators tried to replace Biden electors chosen in several states with fake electors committed to himself, and to pressure Congress and Vice President Mike Pence into illegally throwing out electoral votes from states that had voted for Biden. He also promoted violence by his followers that ultimately led to the attack on the Capitol on January 6, 2021, intended to block the peaceful transfer of power.

There is no reason to believe Trump’s conduct will improve if he is allowed to return to power. Much the contrary: He openly promises to subvert liberal democracy further by using federal law enforcement to persecute his political opponents, setting up vast detention camps for migrants, and other illiberal measures. Moreover, in a second term he is less likely to be constrained by subordinates committed to more traditional democratic values, as he and his allies plan to fill the federal bureaucracy with MAGA loyalists who will not blanch at authoritarian measures. For example, they reportedly plan to eschew more conventional Federalist Society–aligned conservative lawyers and instead appoint authoritarian‐​minded nationalist figures to key legal positions.

Meanwhile, Trump’s rhetoric echoes that of twentieth‐​century fascists, including analogizing his opponents to “vermin.” When called out for these statements, a Trump campaign spokesman doubled down, and promised that his critics’ “entire existence will be crushed when President Trump returns to the White House.”

If elected to a second term, Trump probably won’t be able to fully implement this authoritarian agenda; some parts would likely be stymied by the courts and other constraints. But the combination of his plans and his track record create a strong justification for denying him the chance to try, using all available legal means.

Both the U.S. Constitution and the laws of other democracies include a variety of provisions intended to bar from office people who pose a danger to liberal democracy through malevolence or incompetence. For example, the Twenty‐​second Amendment bars presidents from serving more than two terms, for fear that allowing one to serve longer would enable him to consolidate power and become a despot. Countries like Germany and Israel have banned fascist or Communist parties from contesting elections. Several former Communist nations have enacted “lustration” laws, barring officeholding by former members of the Communist secret police. Had Russia followed the example of Poland and others, it might have spared itself and the world from the restoration of dictatorship under former KGB Colonel Vladimir Putin.

Some argue that voters have an inherent right to elect whatever candidates they want, and that restricting it would be undemocratic. If so, that theory would dejustify all of the other constitutional constraints on officeholding, including the Twenty‐​second Amendment and the requirement that the president be at least 35 years old. More fundamentally, the logic of that argument is unsound: It is not “undemocratic”to block officeholding by candidates who are likely to undermine democracy itself if they come to power, as Trump tried to do in 2020 and may well do again if given the chance. Voting is not a sufficient protection against authoritarians who are likely to undercut the electoral process itself if given the chance.

It is also sometimes claimed that it is especially reprehensible to disqualify a candidate who has many supporters and is the likely nominee of one of the two major parties. But disqualification is most useful precisely when it targets would‐​be authoritarians who have a real chance of winning. There is little point to disqualifying longshots who have little or no chance of getting into power anyway.

In addition to protecting the democratic process itself, democracy can be properly limited in order to protect other liberal values, including fundamental individual rights. Many provisions of the Constitution constrain democracy in that way. Parts of Trump’s agenda, including his plan to use government power to persecute his opponents, are obvious threats to those rights. Conservatives like to remind us that the United States is a “republic,” not a “democracy.” This distinction isn’t as edifying as sometimes claimed. But it is true that our constitutional system rejects unconstrained majoritarianism—and for good reason.

Ultimately, barring some types of dangerous people from public office is a useful tool for protecting both democracy and other liberal values. It is far from the only such tool; others include judicial review and separation of powers. But disqualification is valuable in cases where there may be no other way to prevent dangerous authoritarians from reaching positions of power.1

Did Trump Engage in an Insurrection?
MANY OBJECTIONS to Trump’s potential disqualification are based on legal arguments, not moral ones. Perhaps the most significant is the claim that he didn’t actually “engage” in an “insurrection.” Section 3 states that:

No Person shall be a Senator or Representative in Congress, or elector of President and Vice‐​President, or 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.

It is difficult to deny that the January 6th attack on the Capitol was an insurrection. Those who stormed the Capitol used force in order to try to block the legal transfer of power and seize control of the government for Trump. An attempt at violent overthrow of the legitimate elected president is an insurrection if anything is.

Legal scholars such as Mark Graber, and Will Baude and Michael Stokes Paulsen—authors of a prominent law journal article on Section 3—argue that historical evidence indicates that the original meaning of “insurrection” encompasses any significant resistance to enforcement of federal law, at least if the resistance is motivated by a “public purpose.” But we need not go so far to conclude that the events of January 6th qualify as an insurrection. A narrower definition limited to violent, illegal seizure of government power suffices.

Some nonetheless contend that the January 6th attack was not an insurrection because the perpetrators did not think of themselves as trying to overthrow the government. They instead believed Trump was the true winner of the 2020 election, and they were upholding the Constitution by preventing that victory from being “stolen” from him.

In the case of Trump himself, there is extensive evidence indicating he did know he had lost the election, and his public statements to the contrary were lies. Regardless, a false belief that you are acting in accordance with the Constitution does not exempt you from disqualification under Section 3. If it did, most of the ex‐​Confederates who were the original targets of Section 3 would also have been exempt. After all, many of them—including such leading figures as Confederate President Jefferson Davis and Vice President Alexander Stephens—believed the secession of the Southern states was legal, and they were merely exercising their rights under the Constitution. From that standpoint, it was the federal government that engaged in illegal violence, when it used force to stop the secession.

The Confederates had much better legal rationales for their view than those who claim Trump won the 2020 election, an assertion for which there is no remotely defensible justification. By the time of January 6th, that position had been roundly rejected by numerous court decisions addressing Trump’s claims, including many written by conservative Republican judges, some appointed by Trump himself.

If Trump can escape disqualification because he arguably thought he was acting legally, the same goes for Jefferson Davis and other Confederate leaders. And an interpretation of Section 3 under which it fails to disqualify the very Confederate leaders who were its primary targets is obviously wrong.

A better argument for Trump is not that there was no insurrection at all, but that Trump was not closely enough connected to the attack on the Capitol to have “engaged” in it. After all, he did not participate in the attack himself, and did not give specific orders to those who did.

In the first court decision on Section 3 that addresses the merits of the case, Colorado state trial Judge Sarah Wallace ruled that Trump nonetheless engaged in insurrection because of his repeated, deliberate efforts to incite violence for the purpose of staying in power after the election. These efforts began before his notorious speech on January 6th, in which he urged the crowd to “fight like hell.” They included numerous statements both before and after the election.

As Wallace explains, “Trump acted with the specific intent to incite political violence and direct it at the Capitol with the purpose of disrupting the electoral certification.” She also notes that Trump likely knew and expected that his words would lead to violence: “In the context of the speech as a whole, as well as the broader context of Trump’s efforts to inflame his supporters through outright lies of voter fraud in the weeks leading up to January 6, 2021 and his long‐​standing pattern of encouraging political violence among his supporters, the Court finds that the call to ‘fight’and ‘fight like hell’was intended as, and was understood by a portion of the crowd as, a call to arms.”

Judge Wallace rightly rejected the notion that Trump’s words should be understood in a metaphorical sense, as merely advocating nonviolent protest. Words must be understood in context, and Trump’s January 6th speech arose in a deadly context he himself had helped created:

The language Trump employed must be understood within the context of his promotion and endorsement of political violence as well as within the context of the circumstances as they existed in the winter of 2020, when calls for violence and threats relating to the 2020 election were escalating. For years, Trump had embraced the virtue and necessity of political violence; for months, Trump and others had been falsely claiming that the 2020 election had been flagrantly rigged, that the country was being “stolen,” and that something needed to be done.…

It is also relevant that, after the attack on the Capitol began, Trump for hours refused calls to denounce the violence, and instead continued to try to contact Republican members of Congress in order to pressure them to deny certification of the electoral vote. This was likely an attempt to use the violence as leverage to intimidate lawmakers to keep him in power; it is further evidence that Trump engaged in insurrection. He only belatedly called for the attackers to go home after it was already clear that the assault had failed.

Because Trump’s speech was “likely to incite imminent lawlessness and disorder,” and was intended to do so, Judge Wallace ruled it was not protected by the First Amendment. Even if the First Amendment did apply, it would not necessarily preclude disqualification. Section 3 of the Fourteenth Amendment was enacted later than the First Amendment, and supersedes it in situations where the two conflict, as later‐​enacted laws generally supersede earlier ones.

Finally, even if Trump did not “engage” in insurrection, Section 3 also disqualifies officeholders who give “aid and comfort to the enemies of the United States.” Like the Confederate insurrectionists of the 1860s, the people who attacked the Capitol were clearly domestic “enemies of the United States.” And Trump’s actions and rhetoric surely gave them “aid and comfort,” even if we conclude he did not go so far as to “engage” in insurrection himself.

Is Trump an “Officer of the United States”?
WHILE JUDGE WALLACE RULED THAT Trump engaged in insurrection, she ultimately let him off the hook based on a much weaker theory: that the president is not an “officer of the United States,” and therefore is not covered by Section 3 at all. This argument has a number of other notable defenders. But it is still badly wrong.

It would be absurd for Section 3 to cover all other elected and appointed officials—including low‐​level bureaucrats—while excluding the president—the official with the greatest power, and thus the one whose involvement in insurrection poses the greatest potential threat. Such an exclusion violates the longstanding rule that courts should avoid interpretations of law that lead to absurd results. If such a result is clearly compelled by the text of the amendment, there may be no choice. But there is no such indisputable clarity here. Judge Wallace concedes that “there are persuasive arguments on both sides.” If so, she should have picked the one that does not lead to absurdity.

Courts are generally supposed to interpret laws in accordance with the “ordinary meaning” of their words. As the late Justice Antonin Scalia put it, “we are guided by the principle that the Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning” (quotation omitted). The ordinary meaning of “officer of the United States” obviously includes the most powerful office in the federal government. No ordinary person reading Section 3 is likely to conclude that holders of this office have a special exemption from being barred from future officeholding if they engage in insurrection.

Judge Wallace emphasizes that “to lump the Presidency in with any other civil or military office is odd indeed and very troubling to the Court because … Section Three explicitly lists all federal elected positions except the President and Vice President” (Section 3 specifically indicates members of Congress and members of the Electoral College). The other elected positions, however, are fundamentally different from the presidency. Unlike executive branch officials, members of Congress and electors cannot issue legally binding orders (as opposed to merely voting on laws or candidates), and therefore might not meet an ordinary‐​language, intuitive definition of an “officer”as a person who has the power to issue binding orders to subordinates. Not so with the president, who obviously does have such authority. In the case of electors, it is not entirely clear that their positions are federal offices at all; their only power is to represent their states in the Electoral College and cast a vote there (by 1868, generally one dictated by state law).

Both Judge Wallace and legal scholar Kurt Lash suggest that the president may have been excluded because former electors were covered, and “loyal” electors would not support an insurrectionist former president for office. This argument ignores the possibility than an insurrectionist former president could still potentially hold other offices, such as being a member of Congress or serving as a member of the cabinet.

In addition, there was no reason to think that electors would necessarily abjure supporting former insurrectionists for the presidency. Since Section 3 only covers former government officials of various kinds, ex‐​Confederates who had not held public office previously (of which there were hundreds of thousands) could still become members of the Electoral College—and some actually did. Furthermore, by 1868 (as still today), electors were almost always little more than ciphers for their parties, who could be reliably expected to support the party’s nominee no matter what. It is highly unlikely that committed partisan Democrat electors (most former Confederates backed the Democratic party in the years after the war) would forgo supporting a former Confederate insurrectionist for the presidency if he were the nominee of their party.

Judge Wallace and other advocates of the claim that the president is not covered by Section 3 rely heavily on inferences from passages in the original 1787 Constitution suggesting that the president is not an “officer of the United States,” even though the original Constitution also repeatedly refers to the presidency as an “office.” The inferences they rely on are highly questionable. But even if correct, they have little relevance to the meaning of “officer of the United States” under Section 3, enacted some eighty years later. And there is no good reason to think that the presidency was understood to be excluded as of 1868. As Mark Graber points out, “no evidence exists that any member of Congress, member of a state legislature, political activist, journalist, or hopeless crank during the 1860s thought a president was not an officer of the United States.”

Other Legal Issues
THERE ARE A NUMBER OF OTHER, more technical and less significant legal objections to barring Trump. Here, I cover only the two most notable ones.

One such objection is the idea that Section 3 is not “self‐​executing.”If so, it cannot be implemented by courts or election officials acting on their own, but would require an act of Congress to do so. It should suffice to note that nothing in Section 3 categorically states that “No person”covered by the provision “shall”hold any of the listed offices and does not give any indication that the bar requires additional legislation to take effect. No such additional legislation is required to enforce other constitutional restrictions on officeholding, such as the Twenty‐​second Amendment, or the virtually indefensible requirement that the president must be a “natural born” citizen. The same goes for most other constitutional provisions, which are generally presumed to be self‐​enforcing as well. For example, no additional legislation is required to ensure that the Bill of Rights constrains government officials, or that the legislative and executive branches are limited to the powers the Constitution gives them.

Section 3 does explicitly give Congress the power to lift disqualification by a two‐​thirds supermajority vote. If the drafters of the amendment had intended Congress to also have a role in defining when disqualification applies in the first place, they would likely have specified that.

Another technical objection to disqualifying Trump before the election is the idea that the Section 3 only prohibits ineligible persons from “holding” an office, not from being elected to it. If so, Trump can only be disqualified if he first wins the 2024 election and then tries to assume office. An attempt to block him at that point could well lead to chaos. But in many states the law only allows candidates to be on the ballot if they are legally eligible to hold the office they are running for. In such states, the issue of Section 3 disqualification is legally relevant already, or soon will be if Trump wins the GOP nomination and seeks to be on the general election ballot.

Pragmatic Considerations
EVEN IF DISQUALIFYING TRUMP is justified on moral and legal grounds, there are also practical objections. But they are outweighed by the potential benefits of disqualification. As already discussed, the latter are very great, and it would take a lot to overcome them.

Critics such as Stanford law professor Michael McConnell worry that disqualification might lead to a slippery slope, with partisan state election officials routinely trying to disqualify their parties’ political opponents. The answer to this objection is that disqualification is subject to judicial review. Candidates targeted for disqualification can go to court and challenge the reasoning on which it is based.

Another pragmatic objection is that disqualifying Trump might cause a backlash by his most committed supporters, possibly even leading some of them to resort to violence. But as we saw after the 2020 election, these people get angry and some resort to violence even when Trump loses through the ordinary electoral process. There is no way to appease them other than letting Trump get into power, no matter what.

Such appeasement would be dangerous, foolish, and profoundly undemocratic. Just as giving in to terrorism encourages more terrorism, giving in to the threat of political violence also encourages more of it. We should instead make a credible commitment to standing strong against such threats and punishing those who act on them.

A related but distinct issue is the concern that trying to disqualify Trump might benefit him politically by winning public sympathy. So far, there is no evidence that he has benefited from the attempt to have him removed from the ballot under Section 3, despite the filing of lawsuits in several states.

We cannot completely exclude the possibility that it might benefit him in the future, especially if one or more court decisions go against him, thereby raising the profile of the issue. But it is more likely to damage him than help him. As suggested by the experience of the 2022 midterm elections—when GOP election‐​denier candidates performed poorly—anything that focuses public attention on Trump’s efforts to overturn the 2020 election is likely to hurt Republicans politically. If it damages election‐​denying candidates endorsed by Trump, it is likely to be at least equally harmful to Trump himself. Section 3 disqualification is a way to increase voter attention to this question. At the margin, that is likely to be bad for Trump’s political fortunes, even if courts ultimately do not disqualify him.

It would be a mistake to put all our eggs in the Section 3 disqualification basket. While the legal arguments against disqualification are ultimately unsound, there is a substantial likelihood that courts—including the U.S. Supreme Court—will ultimately endorse one or more of them. The issue could go either way.

Thus, it is important to simultaneously work to defeat Trump at the ballot box. But there is no conflict between that effort and pursuing Section 3 disqualification. The two may even be mutually reinforcing.

The same goes for pursuing the various criminal cases against Trump, including those arising from his schemes to overturn the 2020 election. Convicting Trump on these charges would serve the valuable purposes of retribution and deterrence. But it would not, by itself, necessarily prevent him from returning to power. The Constitution does not bar a convicted felon—even one serving a prison sentence—from becoming president. Only Section 3 disqualification could do that.

However, a conviction on charges related to the 2020 election might further strengthen the case that Trump engaged in insurrection. If so, there would be a synergy between criminal prosecution and disqualification. The former would bolster the latter.

Conversely, acquittal on all or nearly all election‐​related charges might weaken the case for Section 3 disqualification at the margin. However, it is important to keep in mind the distinction between criminal and civil proceedings and the much higher burden of proof in the former. Conviction on criminal charges requires proof beyond a reasonable doubt, while winning in a civil case—like Section 3 disqualification—requires only a preponderance of the evidence. Many of the charges against Trump also could potentially fail because of technical legal issues that are irrelevant to Section 3 disqualification.

Conclusion
DISQUALIFYING TRUMP UNDER SECTION 3 of the Fourteenth Amendment is well justified on legal and moral grounds, and any pragmatic concerns are outweighed by the likely benefits.

Barring Trump is far from a complete cure for the problems that ail our political system. Much else needs to be done to address potential threats to democracy, and improve its functioning. But disqualifying a former president whose words and deeds prove him to be a dangerous menace to liberal democracy would be a step in the right direction.

Ilya Somin is Professor of Law, George Mason University, and B. Kenneth Simon Chair in Constitutional Studies, Cato Institute. This article, posted to the Cato Institute website and published courtesy of the Cato Institute, first appeared in The Bulwark on 30 November 2023.