Can 14th Amendment keep Trump from seeking a second term?

Former President Donald Trump speaks as he announces a third run for president, at Mar-a-Lago in Palm Beach on Nov 15, 2022. [AP Photo]

A new lawsuit to bar former President Donald Trump from appearing on the 2024 Colorado primary ballot has revived a legal and political debate over an obscure provision of the 14th Amendment of the U.S. Constitution.

Citizens for Responsibility and Ethics in Washington, or CREW, a progressive watchdog, filed the lawsuit on behalf of six Colorado voters on Wednesday. It claims that Trump is ineligible to run for the White House again because he supported an "insurrection" against the Constitution on Jan. 6, 2021, when a mob of his supporters stormed the U.S. Capitol to disrupt the Congressional certification of Joe Biden's victory.

The lawsuit cites Section 3 of the 14th Amendment, which was ratified in 1868 to prevent former Confederate officials and soldiers from regaining power after the 1861-65 American Civil War.

The provision, known as the "disqualification clause" and "insurrection clause," says that no one who has taken an oath to support the Constitution and then "engaged in insurrection or rebellion" against the Constitution or "given aid or comfort" to its enemies can hold any federal or state office unless given a waiver by Congress.

"Because Trump took these actions after he swore an oath to support the Constitution, Section 3 of the 14th Amendment prohibits him from being president and from qualifying for the Colorado ballot for president in 2024," the CREW lawsuit says.

The lawsuit raises several questions, including whether Trump's actions in the lead-up to Jan. 6 constituted a rebellion or insurrection, whether Section 3 applies to the presidency, and whether state election officials have the power to enforce it without an act of Congress.

CREW is not the only group seeking Trump’s disqualification. Two other liberal groups — Free Speech for People, and Mia Familia Vota Education Fund — recently asked top election officials in more than 10 states to bar Trump and have vowed to take legal action.

On his Truth Social platform, Trump claimed this week that "almost all legal scholars" agree that the 14th Amendment doesn’t apply to the 2024 presidential election. He called the effort "election interference" and "just another 'trick' being used by the Radical Left Communists, Marxists, and Fascists, to again steal an election."

But it’s not just those on the left making the case. In recent weeks, a growing number of conservative legal scholars have joined the calls for Trump’s removal from the ballot.

Among them are J. Michael Luttig, a conservative former federal appellate judge, and Steven Calabresi, a co-founder of the Federalist Society, a conservative legal organization. They contend that Trump's actions constitute an insurrection against the Constitution, and that disqualifies him from holding office again.

Here is what you need to know about the Section 3 of the 14th Amendment and the push to kick Trump off the 2024 presidential ballot:

What is Section 3 of the 14th Amendment, and what does it say?

The 14th Amendment is one of three amendments to the U.S. Constitution that were enacted after the Civil War to extend civil and legal rights to formerly enslaved Black people.

The amendment is best known for its Section 1, which grants citizenship to "all persons born or naturalized in the United States" and guarantees citizens the "equal protection of the laws."

The amendment's less-well-known Section 3 states that no one who took an "oath … to support the Constitution of the United States" and then "engaged in insurrection or rebellion" against the Constitution or gave "aid or comfort to [its] enemies" can serve as a senator, representative or presidential elector or hold any office — civil or military — unless approved by a supermajority vote of Congress.

How has the provision been used in the past?

In the years after the U.S. Civil War, a period known as the Reconstruction Era, the provision was used to prevent former Confederate officials from holding office.

But the measure remained largely dormant for more than 150 years until the Jan. 6 riots at the Capitol.

Following that attack, liberal groups sought to use Section 3 to challenge the eligibility of several Congressional candidates who had opposed the 2020 election results. The effort failed to gain traction. The only successful application of Section 3 occurred last September, when a New Mexico judge removed from office a county commissioner who had been convicted in connection with Jan. 6.

Does the provision apply to the president?

Section 3 does not explicitly mention whether the president is subject to disqualification under the provision, leading some experts to argue that the presidency is exempt.

But that is a misreading of the text and history of the provision, said Gerard Magliocca, an Indiana University law professor who has written extensively about Section 3.

"This issue was raised in Congress when the proposal was under consideration," Magliocca told VOA. "Someone said, does this apply to the presidency or the vice presidency? And the answer given was yes, it does."

What is more, Magliocca said, the phrase "officer of the United States," as used in Section 3, refers to the president, making him subject to the disqualification provision.

"Andrew Johnson, who was president at the time, repeatedly referred to himself as the chief executive officer of the United States in asserting his authority to pursue Reconstruction in the aftermath of the Civil War in 1865," Magliocca said.

What are the legal arguments for and against applying Section 3 to Trump?

Though initially designed to punish rebellious Southerners, most legal scholars agree that Section 3 may apply to any act of rebellion or insurrection. The debate now is whether Jan. 6 qualifies as such an act.

Proponents of Trump’s disqualification say that it does and that the case against the former president is straightforward: Trump swore to uphold the Constitution as president but then broke that vow when he instigated the Jan. 6 "insurrection," making him unfit for office under Section 3.

The provision doesn’t require a criminal conviction, said U.S. Representative Adam Schiff, a Democrat and a staunch Trump critic.

"It just requires that you engage in these [insurrection] acts," Schiff said recently on MSNBC. "It’s a disqualification from holding office again. And it fits Donald Trump to a T."

Opponents disagree that Jan. 6 rises to the level of an insurrection. They note Section 3 was added in response to a real rebellion.

"But it is notable that Trump has not been charged even with incitement, let alone rebellion or insurrection," said Jonathan Turley, a conservative law professor at The George Washington University, Wednesday on Fox News.

Derek Muller, a law professor and election law expert at University of Notre Dame, said the dispute in part hinges on what acts count as insurrection.

"If you’re making a comparison to the Civil War, what happened on January 6th was certainly not at that level, but are there lesser acts that could fit this?" Muller said.

Another question concerns the role of Congress in disqualifying individuals. Some scholars have argued that Section 3 is not "self-executing," meaning it needs an act of Congress to be implemented. But others say no such action is needed.

"I don’t have strong thoughts on those questions, but I think they’re the things that people are wondering about, whether or not it applies in the context of what happened today," Muller said.

The courts will decide

The legal challenges to Trump’s candidacy are just beginning to make their way through the courts and eventually may end up before the Supreme Court.

Secretaries of state from Democratic-leaning states such as Colorado and Michigan say they’ll await court guidance before taking action. But the courts may not weigh in soon.

"I think a lot of state courts will be very reluctant to hear these claims early," Muller said.

This is not the first time a major presidential candidate has faced legal challenges over his eligibility.

Barack Obama in 2008 and Ted Cruz in 2016 faced lawsuits over questions regarding whether they were "natural born citizens," a requirement for presidency.

Obama was born in Hawaii to a Kenyan father and American mother. Cruz was born in Canada to a Cuban father and American mother.

But the lawsuits didn’t reach the "merits" stage to address the key question — was the candidate a natural born citizen? — as they ground through procedural hurdles.

A similar fate may await the legal challenges to Trump’s candidacy, Muller said.

"Many of these cases will continue the same way, hitting all those barriers before they get to the heart of the question: Did you participate in an insurrection or rebellion?" Muller said.