Lawsuits across the country are challenging former President Donald Trump’s place on the ballot claiming that he aided and abetted an “insurrection” and is therefore disqualified from running for office under Section 3 of the Fourteenth Amendment. The clause bars anyone who took an oath to the U.S. who participated in an insurrection from running for office.
The movement has gained momentum with the publication of law articles by Never Trump jurists William Baude of the University of Chicago and Michael Stokes Paulsen of the University of St. Thomas, and another by former Federal Appellate Judge J. Michael Luttig who penned an article in The Atlantic with former Harvard Law Professor Lawrence Tribe.
“The other, more politically perilous option would be for one or more states to embrace the theory outright and simply refuse to list Trump on their ballots. That might force Trump to file his own lawsuits asking courts to order his candidacy restored in those states. So far, no state has moved to bar Trump from the ballot, though secretaries of state around the nation are discussing the issue among themselves,” Politico reporter Erica Orden wrote.
“Either scenario could thrust the courts, and likely the Supreme Court, into an unsettled debate over the meaning of the insurrection clause, a long-winded 110-word provision that was ratified in 1868 and has rarely been interpreted — or even invoked — since then.”
Did Donald Trump Incite an Insurrection?
In the case of the Civil War, President Abraham Lincoln declared that an insurrection was underway. Trump was president at the time of the Capitol riot; consequently, what authority declared that the riot was an insurrection?
The main weakness of these lawsuits comes down to whether or not the Capitol riot was “an insurrection” and it Trump aided and abetted the violent activities on Jan. 6, 2021. To prove that Trump was guilty of insurrection one would need to establish criminal intent.
Trump stated in his speech that the crowd “would be marching over to the Capitol building to peacefully and patriotically make your voices heard.” Trump’s feed on X shows that he called for peace in a message posted at 2:38 p.m., “Please support our Capitol Police and Law Enforcement. They are truly on the side of our Country. Stay peaceful!” Then at 3:13 p.m., Trump posted saying, “I am asking for everyone at the U.S. Capitol to remain peaceful. No violence! Remember, WE are the Party of Law & Order – respect the Law and our great men and women in Blue. Thank you!”
Ballot Removal Advocates Undermine Own Arguments
The effort to remove Trump from the ballot is being undertaken without due process of law. Even Luttig notes that Special Counsel Jack Smith did not charge Trump with insurrection. The indictment against Trump over his involvement in the events of January 6 does not mention “incitement” even once.
“…I believe that it’s for the First Amendment reasons that Jack Smith did not charge the former president with insurrection against the United States of America. And remember, the former president could’ve been charged under the insurrection statute if he only aided or supported that insurrection. He would be chargeable under that statute without having himself actually incited the insurrection,” Luttig said during an interview with Jeffrey Rosen.
Baude and Stokes likewise concede that the definition of “insurrection” is not clean-cut.
“It is a more difficult question of law because we must plumb the meanings of ‘insurrection’ and ‘rebellion’ and so on—and these meanings are not quite as self-evident as ‘thirty-five years of age’ (at least until this article is widely read and accepted),” Baude and Stokes wrote.
Luttig nor Tribe make any sort of effort to define what legally makes Trump guilty of insurrection in their Atlantic piece.
Who Makes the Legal Call An Insurrection Occurred?
The Insurrection Act of 1807 leaves it up to the president to declare that a state of insurrection exists. The law clearly leaves it up to the president to make the call, and the accused also happens to have been the sitting president on Jan. 6, 2021.
Former Harvard Law Professor Alan Dershowitz argues in his newsletter that arguments about the Fourteenth Amendment are specious.
“It was fairly evident who participated in the Civil War on the part of the South. No formal mechanism was needed for making that obvious determination. If the disqualification had been intended as a general rule applicable to all future elections, it would have been essential to designate the appropriate decision maker, the procedures and the criteria for making so important a decision,” Dershowitz wrote. “In the absence of any such designation, it would be possible for individual states to disqualify a candidate, while others qualify him. It would also be possible for the incumbent president to seek to disqualify his rival, or for a partisan congress to do so. There is no explicit provision for the courts to intervene in what they might regard as a political question.”
Dershowitz notes that if a Democrat-controlled body removes Trump from the ballot it would have to be resolved by the Supreme Court and a constitutional crisis could ensue.
The arguments for removing Trump from the ballot are political and not rooted in law, he argues.
John Rossomando is a defense and counterterrorism analyst and served as Senior Analyst for Counterterrorism at The Investigative Project on Terrorism for eight years. His work has been featured in numerous publications such as The American Thinker, The National Interest, National Review Online, Daily Wire, Red Alert Politics, CNSNews.com, The Daily Caller, Human Events, Newsmax, The American Spectator, TownHall.com, and Crisis Magazine. He also served as senior managing editor of The Bulletin, a 100,000-circulation daily newspaper in Philadelphia, and received the Pennsylvania Associated Press Managing Editors first-place award for his reporting.
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