Donald Trump to challenge insurrection ruling using vagueness of Section 3 of 14th Amendment

In an unprecedented and thunderclap ruling , the Colorado Supreme Court has removed former president Donald Trump from the state’s ballot for the 2024 White House race for “engaging in insurrection” on 6 January, 2021. A presidential candidate has been declared ineligible under Section 3 of the 14th Amendment for the first time.  In ordering Colorado secretary of state Jena Griswold to exclude Trump’s name from the state’s Republican presidential primary ballot—scheduled for Super Tuesday on 5 March—the majority in the court’s 4-3 split verdict wrote: “President Trump did not merely incite the insurrection.” While the US Capitol was under siege, Trump “continued to support it by repeatedly demanding that Vice-President [Mike] Pence refuse to perform his constitutional duty and by calling Senators to persuade them to stop the counting of electoral votes”, the court ruled. “These actions constituted overt, voluntary and direct participation in the insurrection.” However, the court has placed the ruling on hold till January 4 so that Trump could appeal to the US Supreme Court. January 5 is the deadline for finalising the list of candidates for the Republican primary. The ruling came following a lawsuit filed by advocacy group Citizens for Responsibility and Ethics in Washington (CREW) in Colorado on September 6 that cited Section 3 to bar the state’s top election official from placing Trump on the ballot. Similar lawsuits were filed by liberal groups in Minnesota and other states . Vagueness of the term ‘insurrection’ Trump’s detractors and Democrats must be overjoyed for he undoubtedly engaged in insurrection and has been disqualified by, at least, one state Supreme Court. Three significant lines from Trump’s incendiary speech on the Ellipse while inciting his supporters to march down Pennsylvania Avenue towards the Capitol to obstruct the congressional certification of Joe Biden’s election are blatant examples of instigating the crowd. “We will not let them silence your voices. We’re not going to let it happen; I’m not going to let it happen.” “WE FIGHT LIKE HELL. AND IF YOU DON’T FIGHT LIKE HELL, YOU ARE NOT GOING TO HAVE A COUNTRY ANYMORE.” “So, we’re going to, we’re going to walk down Pennsylvania Avenue. I love Pennsylvania Avenue. And we’re going to the Capitol, and we’re going to try and give.”  According to Colorado District Judge Sarah Wallace last month, Trump “engaged in insurrection”. Even his attorney Michael van der Veen said during the impeachment trial for the 6 January attack in Senate that “everyone agrees” it “was a violent insurrection of the Capitol”. Ratified in 1868 after the US Civil War, Section 3 aimed to keep former Confederate officials from gaining power in the reconstructed government. Section 3  states: “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. But Congress may by a vote of two-thirds of each House, remove such disability.” But the vagueness of Section 3 are its weaknesses, which will be exploited by Trump’s legal team in the US Supreme Court.  Though federal law doesn’t explicitly define ‘insurrection’, courts interpret it as a violent uprising or organised resistance against the government or its laws in which government property is destroyed or federal law officers are attacked—as on 6 January. Trump’s supporters broke windows, destroyed the property of the Capitol building and assaulted federal law enforcement officers. Five people, including a police officer, died, more than 140 cops were injured and property worth millions of dollars was damaged—a clear case of insurrection. But Section 3 doesn’t define insurrection, which could be interpreted differently by different courts. The Colorado Supreme Court concluded that Trump engaged in insurrection, but the Minnesota Supreme Court Justices didn’t during a November hearing. When Justice Gordon Moore asked both parties about their definition of insurrection or rebellion against the Constitution, Trump’s counsel Nicholas Nelson said it is “some sort of organised form of warfare or violence oriented toward breaking away from or overthrowing the United States government”. However, Ronald Fein, the counsel for the group Free Speech For People, representing the petitioners, said that insurrection against the Constitution is “a concerted, forcible effort to prevent or obstruct execution of a central Constitutional function”. Fein’s definition aptly described the term ‘insurrection’ because the attack by Trump supporters was intended to halt the certification of Biden’s win. But Minnesota Supreme Court Chief Justice Natalie Hudson concluded: “Insurrection might be in the eye of the beholder.” Different interpretations of the term ‘insurrection’ by different courts could bolster Trump’s appeal. Besides, the US Supreme Court’s conservative 6-3 majority, with three Judges appointed by Trump, could also define insurrection differently. Trump campaign spokesperson Steven Cheung said that they will “swiftly file an appeal” in the US Supreme Court and have “full confidence” that the “completely flawed decision” will be overturned. Could the lack of definition of insurrection in the US Constitution be the reason for special counsel Jack Smith not charging Trump with the crime in his  45-page indictment  unveiled on 1 August? Smith charged Trump with conspiring to defraud the US, conspiracy to wilfully deprive citizens of the right to vote, conspiring to obstruct an official proceeding and obstructing the congressional certification of Biden’s election—but not insurrection despite the House of Representatives panel probing the Capitol riot asking the Department of Justice. Moreover, several far-right extremists were convicted of seditious conspiracy in the January 6 attack, but none were charged with insurrection. Presidency not mentioned in Section 3 The biggest weakness of Section 3 is that it doesn’t mention that the president can also be disqualified from office if he/she engaged in insurrection. Wallace’s decision to keep Trump on the 2024 ballot hinged specifically on the loophole that the “insurrectionist ban” doesn’t apply to the presidency. Though the Colorado Supreme Court ruled that Section 3 also applies to the presidency: “It seems most likely that the presidency is not specifically included because it is so evidently an ‘office’.” The court ruled that “a conclusion that the presidency is something other than an office ‘under’ the United States is fundamentally at odds with the idea that all government officials, including the President, serve ‘we the people’.” But again, it’s different courts, different interpretations.   Trump could use the 1872 Amnesty Act to shield himself in the US Supreme Court by referring to a North Carolina (NC) federal District Judge’s  ruling that the Act applied to then-Republican representative Madison Cawthorn, who asked Trump supporters on January 5, 2021, to “get ready” and “show Washington that our backbones are made of steel and titanium. It’s time to fight”.

Contending the case of NC voters who wanted Cawthorn disqualified from seeking re-election, his lawyers argued that the Act removed Section 3’s disqualification from all but the most prominent Confederate leaders. No mention of process of disqualification Section 3 not only doesn’t mention the process of enforcement of disqualifying a presidential candidate but also states that “Congress may by a vote of two-thirds of each House remove such disability [disqualification]”. According to a September 2022  Congressional Research Service report , it is “unclear” whether Section 3 is self-executing. If it’s not, it “would leave federal and state courts or election authorities without power to determine the eligibility of candidates unless Congress enacts legislation to permit it”. “Courts have produced mixed results on this question. Section 3 does not expressly provide a procedure for its implementation other than Section 5’s general authority of Congress to enforce [the Fourteenth Amendment] by appropriate legislation.” Trump has won several cases involving the 14th Amendment in many key states. For example, a Michigan court ruled in November that  Congress, not the judiciary, should address questions  about Trump’s role in the insurrection and whether the 14th Amendment bars him from re-election. “A body made up of elected representatives of the people of every state in the nation, and gives it to but one single judicial officer, a person who no matter how well-intentioned, even-handed, fair and learned, cannot in any manner or form possibly embody the represented qualities of every citizen of the nation,” the court ruled. Moreover, the court ruled that Michigan’s secretary of state doesn’t have the power under state law to determine Trump’s eligibility for office. On the other hand, the Colorado Supreme Court directed Griswold to remove Trump’s name from the ballot. Still, it said that she “will continue to be required to include President Trump’s name on the 2024 presidential primary ballot until the receipt of any order or mandate from the Supreme Court”. Griswold also hasn’t taken a position on Trump’s eligibility under the 14th Amendment and will “follow whatever court decision is in place”. Justice Maria E Berkenkotter, one of the three dissenting Judges in the Colorado Supreme Court ruling, also said that state courts don’t have the authority to decide whether a presidential candidate can be disqualified under the 14th Amendment and the majority “construes the court’s authority too broadly”. Justice Carlos Samour, the second dissenting Judge also pointed to Section 3’s ‘lack’ of self-executing nature. “My colleagues in the majority concede that there is currently no legislation enacted by Congress to enforce Section Three. This is of no moment to them, however, because they conclude that Section Three is self-executing, and that the states are free to apply their own procedures to enforce it. That is hard for me to swallow,” he wrote. Chief Justice Brian Boatright pointed to the “absence of an insurrection-related conviction”. “I would hold that a request to disqualify a candidate under Section Three of the Fourteenth Amendment is not a proper cause of action under Colorado’s election code,” he wrote. However, CREW argues that Section 3 is self-executing. “Neither an indictment nor a conviction for a crime is necessary to disqualify a person from office under Section 3 of the 14th Amendment,” it posted on X.

“The clause disqualifies anyone from office who engaged in insurrection after swearing an oath to protect the Constitution regardless of whether they have been charged with or convicted of a crime,” it added. In July, CREW said that, at least, eight public officials have been formally adjudicated to be disqualified and barred from public office under Section 3. Citing historical precedent, the non-profit said that “ a criminal conviction is not required  for an individual to be disqualified under Section 3”. In fact, no one formally disqualified under Section 3 was charged under the criminal “rebellion or insurrection” statute  18 USC 2383 . “This fact is consistent with Section 3’s text, legislative history and precedent, all of which  make clear  that a criminal conviction for any offence is not required for disqualification. Section 3 is not a criminal penalty, but rather is a qualification for holding public office in the United States that can be and has been enforced through civil lawsuits in state courts, among other means,” CREW argued. More lawsuits challenging Trump’s re-election bid under Section 3 of the 14th Amendment could be filed and some of them might get favourable verdicts, but Trump will challenge them in the US Supreme Court. The writer is a freelance journalist with two decades of experience and comments primarily on foreign affairs. Views expressed in the above piece are personal and solely those of the writer. They do not necessarily reflect Firstpost_’s views._ Read all the Latest News , Trending News , Cricket News , Bollywood News , India News and Entertainment News here. Follow us on Facebook , Twitter and Instagram .