Donald Trump’s campaign team is preparing for a state-by-state legal battle later this year over untested claims that a Civil War-era clause in the U.S. Constitution bars the former president from appearing on Republican primary ballots because of his role in the Jan. 6, 2021, insurrection.
Two nonprofit groups who do not disclose all their donors, Citizens for Responsibility and Ethics in Washington (CREW) and Free Speech For People, have prepared multipronged legal strategies to challenge Trump across the country under Section 3 of the 14th Amendment. They have written letters to state election officials calling on them to block Trump from the ballot, while separately preparing voter lawsuits and state election board complaints.
Section 3 — ratified in 1868 to punish Confederate officials after the war — disqualifies any “officer of the United States” from future public office who, after taking an oath to support the U.S. Constitution, has “engaged in insurrection or rebellion against” the country. Attorneys at both groups argue that Trump’s role before and during the Jan. 6 riot is evidence he “engaged in insurrection,” a claim that was specifically endorsed by the House select committee that investigated the attack.
“It is a strategy designed to enforce the Constitution to bar Trump from serving as president,” CREW chief counsel Donald Sherman said of the legal efforts. “We have had two major insurrections in this country. One was the Civil War, which gave rise to Section 3. And one was Jan. 6.”
But there is little recent legal precedent to guide courts on how to apply Section 3. Opponents of the effort are likely to argue that state elections officials have a ministerial role that does not allow them to bar candidates under the constitution, according to attorneys familiar with the issues. They will likely also argue that Trump did not engage in an “insurrection,” that Section 3 should not apply to a candidate before an election and that there needs to be an act of Congress to enforce Section 3. Legal scholars have also raised questions about whether a former president who has never served in another office counts as an “officer” under the clause….
Gerard Magliocca, a law professor at Indiana University, has written extensively on Section 3 and advised both groups now seeking to apply the clause to Trump. He has noted that Section 3 was clearly applied to Jefferson Davis, the former president of the Confederate States, who did not fight personally in the Civil War and was not convicted of a crime.
Magliocca said the ongoing Justice Department investigation of Trump for his role in the Jan. 6 attack could also factor into how courts, including the Supreme Court, view the Section 3 claim.
“I think there will be some judicial decisions saying he is ineligible,” Magliocca said. “If he is indicted in these other cases, that increases the possibility that you can find five justices who will be interested in disqualifying him.”