Trump disqualified under 14th Amendment because a 'foot soldier was': legal experts

04 September 2023

The debate over whether the "Disqualification from Holding Office" clause in Section Three of the 14th Amendment to the United States Constitution bars ex-President Donald Trump from serving a second presidential term has garnered attention since Trump declared his candidacy for the Republican Party's 2024 nomination last November. Although efforts so far to have it enforced face significant headwinds, the strategy is not a lost cause, according to a Monday analysis by Talking Points Memo correspondents Josh Kovensky and Kate Riga.

Kovensky and Riga write, "Those invoking the Disqualification Clause say it should be treated like any other criteria for disqualification — age, citizenship, residency. It's a constitutional provision, they argue, one which should be respected and enforced, particularly when it comes to insurrection. Its critics howl that the move is anti-democratic and undermines the will of Republican voters who, reflected in every poll, want Trump to represent them by huge majorities."

Watchdog organizations on the frontlines of the fight, like Citizens for Responsibility and Ethics in Washington and Free Speech For People, Riga and Kovensky explain, have "a mission and a plan" that "they've formed with the benefit of experience. They've already taken this argument to court — and in one momentous decision in this very small universe of cases, notched a victory."

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Kovensky and Riga recall, "In September 2022, New Mexico state Judge Francis Mathew removed Otero County commissioner Couy Griffin from his post, finding that he was disqualified after participating in the insurrection."

Griffin was caught "galloping around the Capitol" and "was ultimately convicted for entering and remaining on restricted ground," based upon Mathew's interpretation of Section Three. "One need not personally commit acts of violence to engage in insurrection," Mathew opined from the bench. "Engagement thus can include non-violent overt acts or words in furtherance of insurrection."

Per TPM, Mathew also said that “Section Three imposes a qualification for public office, much like an age or residency requirement, adding, "It is not a criminal penalty, and neither the courts nor Congress have ever required a prior criminal conviction for a person to be disqualified under Section Three."

Experts who spoke with TPM agreed.

CREW Director of Strategic Litigation Nikhel Sus believes that the foundation of Mathew's ruling should apply to Trump, telling TPM that "it's beyond the pale to believe someone who was the prime mover of this event wasn't disqualified if a foot soldier was."

Former Republican North Carolina State Supreme Court Justice Robert Orr, who assisted FSFP in its 2022 Section Three case against then-Congressman Madison Cawthorn (R-North Carolina), said that even though "they lost that attempt," it "chipped away at one defense which some Trump defenders have put forward: that the 1872 Confederate amnesty applied to future insurrectionists, rendering the 14th Amendment impossible to enforce."

TPM notes that Orr views "engaging in an insurrection" as "a profoundly destructive act against the American state."

Orr said that "people need to take a step back from the fact that Trump is the issue," positing, "If somebody is engaged in an insurrection, if next week Lindsey Graham starts firing cannons at Fort Sumter, is that disqualifying?"

Section Three "was put there for a purpose after the war between the states," Orr continued. "People who take an oath, and violate that oath and commit an insurrection against the country should not be allowed to hold office."

Kovensky's and Riva's full analysis is available at this link.

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