Disqualifying Insurrectionists and Rebels: A How-To Guide

In recent days, several scholars and lawmakers have suggested that Section 3 of the 14th Amendment might be used to bar Donald Trump and some of his allies from ever holding federal or state office again. The Section 3 route is a plausible alternative, or potentially a supplement, to the more traditional route for sanctioning state criminals: impeachment. But a number of unresolved questions remain regarding Section 3’s scope as well as the process by which the lifetime ban can be invoked. Here, I flag the most important questions, answer some of them, and offer tentative guidance to lawyers and lawmakers seeking to apply Section 3 to individuals who participated in or abetted the Jan. 6 assault on the Capitol.

Triggering Offices and Banned Offices

The text of Section 3 leaves lots of questions open, but it will be helpful to have it close at hand:

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.

The author of the amendment was Sen. Jacob Howard, a Michigan Republican, who introduced the language after the Senate rejected an earlier proposal to bar ex-Confederates from voting until 1870. The effect of the amendment is that anyone who (a) previously held or currently occupies a triggering office in which she took an oath to support the U.S. Constitution and then (b) engages in covered conduct (i.e., insurrection, rebellion, or giving aid or comfort to America’s enemies) will be (c) disqualified for life from holding any banned office, unless Congress by a vote of two-thirds allows an exemption.

The text is reasonably clear as to Section 3’s triggering offices: The person in question must be or have served as (1) a member of Congress, (2) an officer of the United States, (3) a member of any state legislature, or (4) an executive or judicial officer of any state. Thus, most members of the mob that descended on the Capitol on Jan. 6 are not subject to section 3: Even if they engaged in insurrection or rebellion, they haven’t served in one of the triggering offices.

Importantly, it doesn’t matter whether an individual holds a triggering office at the same time that she engages in insurrection or rebellion. During the debate over the amendment in the 39th Congress, Sen. Thomas Hendricks, an Indiana Democrat and future vice president, proposed limiting Section 3’s scope to individuals who engaged in covered conduct during their term in a triggering office, but the Senate rejected Hendricks’s proposal by an 8-to-34 vote.

To see how the triggering-office provision works, consider the cases of Republican Rep. Mo Brooks, former New York City Mayor Rudy Giuliani and President Trump’s eldest son, Donald Trump Jr.—all of whom are reportedly under investigation by the District of Columbia attorney general for their roles in the Jan. 6 assault. Section 3 clearly applies to Brooks if he engaged in covered conduct: He previously served in the Alabama legislature, one triggering office; he is currently a member of Congress, another triggering office; and he took an oath to support the U.S. Constitution in both capacities. Likewise for Giuliani: Mayor is a triggering office, and Giuliani also served in two other triggering offices—U.S. associate attorney general and U.S. attorney for the Southern District of New York. Holders of all of these offices take oaths to support the U.S. Constitution.

By contrast, Donald Trump Jr. is not subject to Section 3’s lifetime ban because—even if he did engage in insurrection or rebellion—he hasn’t served in a triggering office. The senior Donald Trump is a more interesting case. Seth Barrett Tillman has suggested that the president is not an “officer of the United States,” in which case the presidency would not be a triggering office. And unlike every previous president since Washington, Trump didn’t hold another federal or state office prior to entering the White House. But the framers of the 14th Amendment clearly thought that Section 3 covered the president. Indeed, this issue came up during the floor debate, and Rep. Justin Morrill, a Vermont Republican and member of the House leadership, assured his colleagues that “office under the United States” included the presidency. As Gerard Magliocca nicely puts it in an impressive and timely new history of Section 3, “Congress did not intend (nor would the public have understood) that Jefferson Davis could not be a Representative or a Senator but could be President.”

The list of banned offices largely—but not entirely—tracks the list of triggering offices. The banned offices are (1) member of Congress, (2) member of the Electoral College, (3) civil or military officer of the United States, and (4) officer of any state. Thus, member of the Electoral College is explicitly listed as a banned office but not a triggering office. And member of the state legislature is explicitly listed as a triggering office but not a banned office.

One interesting question is whether Section 3’s lifetime ban applies to former members of the Electoral College who then engage in covered conduct. Members of the Electoral College aren’t federal officers, and they aren’t executive or judicial officers of a state. As far as I know, no former member of the Electoral College participated in the Jan. 6 assault, so this question is purely academic. Another question that is far from academic is whether the position of state legislator is a banned office. A number of state lawmakers attended the Jan. 6 “Stop the Steal” rally at the Capitol, including members of the Arizona, Virginia and Become a supporter of IT Security News and help us remove the ads.