Following former President Donald Trump’s announcement that he is running to regain the White House in 2024, left-leaning advocacy groups are mobilizing to block his candidacy under a little-known constitutional provision, based on his role in the January 6 attack on the U.S. Capitol.
The provision — Section 3 of the 14th Amendment to the U.S. Constitution — says that “no person shall” hold any federal or state office who has previously taken an oath “to support the Constitution” and then “engaged in insurrection or rebellion” or “given aid or comfort to the enemies” of the United States.
Known as the “disqualification clause,” it was adopted after the American Civil war of 1861-1865 to prevent members of the vanquished Confederacy from holding office in the post-war period.
The clause went largely dormant after Congress passed the Amnesty Act in 1872, lifting the disqualification penalties against most former Confederates.
But in the wake of the deadly assault on the U.S. Capitol by Trump supporters, advocacy organizations and some constitutional scholars say the clause has taken on new relevance.
“I’m not sure the framers of the 14th amendment could have envisioned what the next insurrection might look like but in codifying Section 3 of the 14th Amendment they certainly gave Congress and gave the American public the tools to disqualify government officials who engage in insurrections by passing that amendment,” Donald Sherman, chief counsel for Citizens for Responsibility and Ethics in Washington (CREW), a government watchdog, said during a Twitter Space conversation last week.
Sherman said CREW is prepared to “take appropriate legal or advocacy action” to ensure Trump is disqualified under Section 3.
Within minutes of Trump’s announcement, two other left-leaning organizations — Free Speech for People and Mi Familia Vota — launched TrumpIsDisqualified.org, a campaign to urge state election officials to bar Trump from their ballots.
“We believe he is constitutionally ineligible to run for office,” Héctor Sánchez Barba, the executive director and CEO of Mi Familia Vota, said in a statement.
Trump has denied any wrongdoing in connection with January 6, and conservative legal scholars see the attempt to disqualify him as a long shot.
Noting that courts have largely rejected recent attempts to disqualify Trump-supporting candidates, Jonathan Turley, a George Washington University law professor, said, “I think that eventually it would get to the Supreme Court and be quickly swatted down.”
The wrangle over whether Trump is eligible to run for office again comes down to two key questions: whether what happened on January 6 constitutes an insurrection and whether the disqualification clause can take effect without an act of Congress.
In the nearly two years since January 6, 2021, Democrats have repeatedly asserted that the attack on the Capitol was “an insurrection,” arguing that it wasn’t just an assault on the U.S. seat of government but an attempt to subvert the constitutionally mandated process of certifying of presidential election results.
But Republicans, perhaps cognizant of the term’s legal implications, have rejected that characterization. Turley, who appeared as a Republican-invited witness during Trump’s first impeachment hearing in 2019, said January 6 was not an insurrection in a legal sense.
“While it is very common for people to refer to the January six riot as an insurrection, it has not been legally found to be any such thing,” Turley said. “So, it’s not a particularly good fit for the disqualification clause.”
Just as contentious is the question of whether the disqualification clause can be applied without an act of Congress.
Referring to an 1869 court ruling involving the disqualification of a former Confederate official, some legal scholars argue that the clause is not “self-executing,” meaning it cannot be enforced without Congressional legislation.
For the act to take effect, these legal experts say, Congress must create a procedure for determining whether a candidate has committed a disqualifying offense. Congress hasn’t done that.
But others say no such action is necessary.
“You have a lot of people out there saying that there has to be federal legislation that creates a simple process for this provision to apply or to be operative, and we just disagree,” said Liz Hempowicz, vice president for policy and government affairs at the Project on Government Oversight, and co-author of a report that argues the disqualification clause can be applied today.
To contest Trump’s candidacy, challengers have any number of legal pathways, Hempowicz said. One is to ask secretaries of state in key states to not put Trump on any future ballot, she said. Another is to seek local court orders to prevent him from gaining ballot access.
“It is a very complex system, and it will depend on the processes in 50 different states,” Hempowicz said.
“In some states, it has to be somebody who was seeking that nomination themselves and didn’t get it,” she said. “In other states, it is broader and concerned citizens can challenge somebody’s candidacy.”
To block Trump’s candidacy, challenges “would certainly have to be more than one state, but I don’t think it would need to be all 50,” Hempowicz said.
If any state moves to disqualify him, the former president could try to get courts to reverse the order, setting the stage for protracted court battles well before the next presidential election.
“In fairness to America’s voters, this argument ought to be resolved conclusively in court long before voters cast their ballots in 2024—and not on January 6, 2025, when Congress next meets to count electoral votes,” Edward Foley, a law professor at the Ohio State University, wrote in a recent blogpost.