Trump Risks Ban From Elected Office With Insurrection Evidence

A special House committee’s vote to refer former President Donald Trump for potential criminal charges in connection with the Jan. 6 attack on the US Capitol brings fresh attention to a Constitutional ban on insurrectionists holding office.

Section 3 of the 14th Amendment states that no one can “hold any office, civil or military, under the United States, or under any State” if they took an oath to support the Constitution and then “engaged in insurrection or rebellion against the same.”

Ratified in 1868, the language was drafted to address former Confederate officeholders. But the text doesn’t spell out exactly how to disqualify someone from running or holding office again.

The House Jan. 6 committee urged the Justice Department on Monday to consider charging Trump with inciting or aiding an insurrection. Democratic Representative Jamie Raskin, who announced the insurrection referral, described it as “a grave federal offense anchored in the Constitution itself” and noted that it was “automatic grounds” for disqualifying someone from holding state or federal office.

Trump Risks Ban From Elected Office With Insurrection Evidence

Donald Trump on Jan. 6, 2021.

Photographer: Shawn Thew/EPA/Bloomberg

The committee’s referral of that felony offense, which carries as much as 10 years in prison, doesn’t stop Trump from pressing ahead with his 2024 presidential run, however. A federal indictment or even a conviction also wouldn’t instantly halt Trump’s campaign under the Constitution. Some other entity has to take action — for instance, a secretary of state stopping him from appearing on a ballot, a judge concluding he’s ineligible, or Congress refusing to certify election results.

The federal criminal insurrection statute, 18 USC 2383, states that a conviction means a defendant can’t hold “any office under the United States.” But a number of legal scholars have said that penalties adopted by Congress for a criminal conviction couldn’t apply to the presidency, since the Constitution exclusively lays out the qualifications for that office; there’s similar language in a law criminalizing the mishandling of government records.

Congress failed to act this year on proposed measures to create a standardized process aimed at avoiding legal chaos. The insurrection disqualification is a relatively untested area of the law, and any push to keep Trump off the ballot is likely to trigger a fierce court fight.

Read More: Trump’s Run Risks ‘Insurrection’ Ballot Contests Over Jan. 6

Recent challenges under the 14th Amendment to prevent candidates from appearing on the ballot unfolded on a state-by-state basis. Courts rebuffed efforts to disqualify Republican members of Congress who backed Trump’s post-election activities in 2020, including Representatives Marjorie Taylor Greene and Madison Cawthorn. A New Mexico county commissioner was removed from office, however.

Advocacy groups that pledged to constitutionally disqualify Trump from the 2024 presidential race maintain that it isn’t legally relevant if Trump is criminally charged or convicted of the felony insurrection offense, as long as the evidence is there.

John Bonifaz of Free Speech for People, one group that has announced its intention to try to keep Trump off of ballots, said the text of the insurrection disqualification doesn’t say anything about requiring parallel activity in the criminal justice system. Still, Bonifaz said the evidence put forward by the House committee would be helpful, as would any mention of the 14th Amendment by the committee. He acknowledged that a few secretaries of state have suggested that they believe a criminal conviction is necessary to keep a candidate off the ballot.

The committee’s vote to make a criminal referral to the Justice Department for a host of charges, including the insurrection offense, doesn’t require prosecutors to act. It does ramp up public pressure on Attorney General Merrick Garland and other top officials. The department’s ongoing investigation into the Jan. 6 attack and efforts by top Republicans, including Trump, to undermine election results recently moved under a special counsel following Trump’s decision to formally launch his 2024 campaign.

To contact the reporter on this story:
Zoe Tillman in Washington at [email protected]

To contact the editors responsible for this story:
Angela Moon at [email protected]

Elizabeth Wasserman, Zoe Tillman

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