Section 3 of the 14th Amendment to the United States Constitution, or the Insurrectionist Disqualification Clause, bars from office any person who swore an 鈥渙ath 鈥 to support the Constitution of the United States鈥 as a federal or state officer and then 鈥渆ngaged in insurrection or rebellion against the same, or (gave) aid or comfort to the enemies thereof.鈥
There is no definition of 鈥渆ngaged in rebellion鈥 or 鈥渋nsurrection鈥 directly in the Constitution.
In drafting the 14th Amendment, the drafters argued that the Civil War was not the first instance of insurrectionary violence, pointing to the Whiskey Rebellion and Burr Expedition. The Burr Expedition was halted before the perpetrators committed a single act of violence.
The leading case defining 鈥渆ngaging in insurrection鈥 comes out of the former Confederate state of North Carolina in 1869, in a case called Worthy v. Barrett. Engaging in insurrection does not require the person to personally commit or order acts of violence, otherwise even Jefferson Davis may have been outside the reach of the Disqualification Clause. The case defined 鈥渆ngage鈥 as 鈥渧oluntarily aiding the rebellion, by personal service, or by contribution, other than charitable, of anything that was useful or necessary in the Confederate service.鈥
In the words of the North Carolina Supreme Court, the idea was this:
鈥淭he Oath to Support the Constitution is the test. That one who had taken an oath to support the Constitution and violated it, ought to be excluded from taking it again, until relieved by Congress.鈥
The Insurrection Disqualification Clause is focused on those who had taken an oath of office at the time of insurrection, not the ordinary citizen who directly commits the violence.
A criminal conviction is not required as a prerequisite for applying Article 3 disqualification under the 14th Amendment.
During Reconstruction, Congress and the Department of Justice routinely applied the Insurrectionist Disqualification Clause to people who had not been convicted of any crime. This was the rule, not the exception 鈥 the vast majority of Confederate officials were never charged with crimes.
Nor is a formal declaration from Congress that a person participated in an insurrection necessary to disqualify them from a state ballot. Congress specifically instructed states to implement the Insurrectionist Disqualification Clause on their own 鈥 in the Omnibus Act of 1868, Congress readmitted six Confederate states to the Union, and as a condition of statehood, required them to apply the Insurrectionist Clause directly. (This provision of the Omnibus Act has never been repealed, even after Congress granted amnesty to most ex-Confederates.)
States have the power to bar candidates from the ballot if they don鈥檛 meet the qualifications set forth by the U.S. Constitution. The Constitution says, in Article I, Section 4, that federal elections are run by states unless Congress intervenes.
States are allowed to decide who gets to be on the ballot; this was decided by the U.S. Supreme Court in Storer v. Brown in 1974. States can and do exclude federal candidates from the ballot who do not meet the criteria for offices set forth in the U.S. Constitution.
The core facts demonstrating that former President Donald J. Trump 鈥渧oluntarily aided a rebellion,鈥 thereby engaging in insurrection, are a matter of public record.
Trump summoned tens of thousands of supporters for a 鈥渨ild鈥 protest in Washington, D.C., on Jan. 6, 2021 鈥 the date that Congress and the vice president were meeting to certify the results of the 2020 presidential election under the 12th Amendment to the Constitution and the Electoral Count Act.
Trump urged his followers to 鈥渇ight like hell鈥 to 鈥渟top the steal鈥 鈥 i.e., stop Vice President Mike Pence and Congress from lawfully certifying the Electoral College votes designating Joseph R. Biden Jr. the 46th President of the United States.
Then-President Trump鈥檚 mob went on to violently storm and seize the United States Capitol, forcing lawmakers to flee for their lives. At 2:24 p.m. that day, Trump sent a tweet targeting Vice President Pence for lacking the 鈥渃ourage鈥 to overturn the election. The tweet caused the mob to surge and chant 鈥渉ang Mike Pence!鈥 It predictably exacerbated the violence that Trump knew was underway.
Trump failed to take any action to stop the attack for nearly three hours as the mob ransacked the United States Capitol, brutally assaulted police officers, and called for the murder of elected officials.
Trump refused to deploy a federal response or call off the mob despite his affirmative constitutional duty to 鈥渢ake Care that the Laws be faithfully executed鈥 in his role as commander-in-chief of the military, including the D.C. National Guard.
The former president of the United States justified this deadly attack on the seat of his own government, tweeting at 6:01 p.m.: 鈥淭hese are the things and events that happen when a sacred landslide election victory is so unceremoniously & viciously stripped away from great patriots. 鈥 Remember this day forever!鈥
Maybe Americans have forgotten the iconic photo of Lyndon B. Johnson being sworn in as president while Jackie Kennedy looked on, her pink designer suit still caked in her assassinated husband鈥檚 blood.
Peaceful transitions of presidential power have been a hallmark of our democracy, symbolizing the stability and power of constitutional governance, and making us the envy of many peoples throughout the world.
For the first time in American history, with the aid and encouragement of Donald J. Trump, there was not a smooth and peaceful transition of power. Instead, the Capitol was breached, a feat that even the Confederates did not achieve during the Civil War.
Voluminous public evidence and legal authorities establish that the Jan. 6 attack on the Capitol and surrounding events constituted an 鈥渋nsurrection鈥 against the Constitution within the meaning of Section 3 of the 14th Amendment. The final report of the U.S. House Select Committee to Investigate the January 6th Attack on the United States Capitol provides evidence that Trump not only engaged in the insurrection but was its 鈥渃entral cause.鈥 The report, on Page 690, even recommends the enforcement of Section 3 of the 14th Amendment against public officials who engaged in the Jan. 6 insurrection.
Donald Trump took an oath under Article 2 of the Constitution to 鈥減reserve, protect and defend鈥 the United States. Instead, he 鈥渁ided a rebellion鈥 and 鈥渆ngaged in insurrection,鈥 according to case law 鈥 case law written by Southern Americans who had directly experienced the horrible days of the American Civil War, who never wanted that dark chapter of American history to repeat itself.
My own ancestors served in the Union and the Confederacy, brother against brother. Many suffered needless and miserable deaths. Because of that conflict, the Constitution now says that those who take an oath to support the Constitution, but violate that oath, should be excluded from taking it again.
Donald Trump must be disqualified from the ballots of Washington voters under the Insurrectionist Disqualification Clause of the United States鈥 Constitution.
