Has President Trump Committed a Disqualifying Offense Within the Meaning of the 14th Amendment of the Constitution?

It is clear that more and more commentators oppose using litigation to decide whether Donald Trump can remain on the ballot either for purposes of the 2024 presidential primaries or the 2024 presidential election. This is because virtually any reasoned analysis suggests that President Trump was not an officer within the meaning of Section 3 of the 14th Amendment of the Constitution. As the ACLJ has already shown in its intervention in Colorado litigation, this disqualification provision is inapplicable because the Supreme Court has explained the President is the head of the Executive branch and, therefore, not an officer within the meaning of Section 3. Instead, he appoints officers of the United States.

In addition, Section 3 was aimed at former officers and soldiers of the Confederacy. Properly understood, Section 3 applies to those who had served as an officer of the United States government and sworn an oath of allegiance to the United States before taking up arms against the republic. It is these individuals who were barred from running for federal office within the meaning of Section 3 of the 14th Amendment of the Constitution.

Despite the evidence showing that Donald Trump is not barred by Section 3 of the 14th Amendment because he was not an officer of the United States, elite law professors—enraged by Donald Trump’s rising popularity despite a rising number of legal indictments—stubbornly insist that the 14th Amendment prevents President Trump’s name from appearing on the ballot. This strategy faces an additional hurdle. Quite simply, Section 3 does not apply because he never committed a Section 3 offense.

Consider Section 3’s language regarding the commission of an offense. The language indicates that disqualification of a covered person only occurs in two circumstances. First, if a covered person has “engaged in insurrection or rebellion against” the United States, or second, “given aid or comfort to the enemies thereof.” These two elements are textually distinct and reflect longstanding aspects of domestic and international law, including the law of war. The first question becomes, did Trump engage in an insurrection or rebellion against his own government? This question answers itself. No reasonable person believes that he engaged in an insurrection or rebellion against his own government. Indeed, the public record indicates that he offered the House Speaker assistance to forestall crowd control problems.

Second, we should ask, did Donald Trump give aid and comfort to an enemy? This question also answers itself so long as observers understand that this provision only applies if there was indeed an enemy to give aid and comfort to in the first place. On January 6th there was never an enemy because there was never a war. There was neither a de facto nor de jure war; hence, there was never an enemy for President Trump to give aid and comfort to. This means that he could not be disqualified by failing to intervene to stop the January 6th riot or otherwise since the language of “to give aid or comfort” solely applies to enemies of the United States.

Since he neither participated in an insurrection or rebellion on the one hand nor gave aid or comfort to an enemy on the other, it follows that he did not commit a Section 3 offense within the meaning of the 14th Amendment of the Constitution. To be clear, proponents of Trump’s disqualification willingly disregard logic and conflate Section 3’s distinct elements. This conflation proceeds by rewriting the precise language of the offense element such that a Section 3 covered person would offend the Constitution if one has engaged in or has given aid or comfort to insurrection or rebellion against the United States. Disregarding the precise language of the Constitution, elites contend that Trump’s failure to intervene on January 6th to stop the riot constitutes evidence he gave aid and comfort to an insurrection even though the “aid and comfort” phrase does not apply to the “insurrection or rebellion” language. Such a conflation amounts to little more than an attempt to confuse the public.

The ACLJ will continue its important work by defending the rights of voters—not elites—to determine the fitness of Donald Trump to remain on the ballot either through our direct intervention in lawsuits or via the submission of amicus briefs where appropriate. One needn’t support or oppose Mr. Trump’s candidacy to understand that this is an important effort that protects our republic from an elite-led effort to interfere in our democracy. We should never forget the attempt by elites to interfere in the 2020 presidential election campaign. Help us put an end to such efforts.