See ‘ever-expanding’ list of former Trump officials who refuse to endorse him
“Is someone charged with 91 felonies, who lies all the time, and who helped lead a violent insurrection fit to be president?”
Supreme Court Oral Arguments
On February 8, the Supreme Court heard oral arguments in Trump v. Anderson, on the Colorado Supreme Court’s ruling that former President Donald Trump is disqualified from the office of the presidency under Section 3 of the 14th Amendment and cannot appear on the 2024 presidential ballot.
On The Lawfare Podcast recorded on February 8 in front of a live audience, Lawfare Editor-in-Chief Benjamin Wittes sat down with Lawfare Senior Editors Roger Parloff and Quinta Jurecic, Lawfare Legal Fellow and Courts Correspondent Anna Bower, and law professor at Indiana University Gerard Magliocca to talk about the oral arguments, how the justices may rule, and the implications of the ruling.
Constitutional Scholars WeighED in on Whether Trump Is an Oath-Breaking Insurrectionist
Below are summaries of some of the best “friend of the court” briefs submitted to the US Supreme Court as it considers whether to affirm the Colorado Supreme Court’s decision that Trump is an oath-breaking insurrectionist whose words and actions disqualify him under the Fourteenth Amendment from holding the office of President. Here are the words of the Article 3 of Fourteenth Amendment to the Constitution:
No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
If a summary below sounds interesting, you can click on a heading below to read the entire brief.
“This brief focuses on two textualist points. First, it would violate the rule of law and textualism for this Court to create an off-ramp to avoid adjudicating whether Mr. Trump is disqualified. The power to decide a dispute about a presidential candidate’s constitutional qualifications is a judicial power that has been vested by the Electors Clause initially in the States, and by Article III’s grant of appellate jurisdiction ultimately in this Court. Section 5 of the Fourteenth Amendment merely gives Congress power to legislate a judicial enforcement mechanism in addition to this pre-existing judicial power of the States and this Court.
Mr. Trump does not argue that the Constitution gives Congress judicial power over a presidential qualifications dispute. Section 5 of Article I gives Congress the power only to “be the Judge of the . . . Qualifications of its own Members.” In contrast, Section 3 of the Fourteenth Amendment merely checks the judicial power of the courts by giving Congress the power by two-thirds vote to remove, for any reason, disqualification under Section 3, even after it has been judicially adjudicated.
Second, the terms of Section 3 of the Fourteenth Amendment disqualify Mr. Trump. The Court should heed the warning of Justice Holmes that cases of “immediate overwhelming interest” often “make bad law.” Northern Sec. Corp. v. United States, 193 U.S. 197, 400-01 (1904) (Holmes, J., dissenting). Particularly because Section 3 emerged from the hallowed ground of the Civil War, this Court must accord Section 3 its fair meaning, not a narrow construction. Mr. Trump was “President of the United States.” U.S. const. art. II, § 1, cl. 1. He never disputes that the President is an “officer.” It follows, as the Fourteenth Amendment generation understood, that the “President of the United States” is an “officer of the United States.” Mr. Trump incited, and therefore engaged in, an armed insurrection against the Constitution’s express and foundational mandates that require the peaceful transfer of executive power to a newly-elected President. In doing so, Mr. Trump disqualified himself under Section 3.
In the aftermath of the Civil War, Congress devised the Disqualification Clause of the Fourteenth Amendment out of concern that office-holders who had violated their oaths to the Constitution would reassume positions of authority, destabilize state and federal governments, and suppress freedom of speech. The Republican framers of the Amendment believed that anything short of the disqualification of insurrectionists risked surrendering the government to anti-Constitutionalist rebels.2 In a speech in 1866, Benjamin Butler, soon afterward elected to Congress, declared that secessionists had left their offices “for the purpose of destroying this government” and “now desire to return to their seats for the same purpose.”3
“Plainly, the central idea of secession is the essence of anarchy,” Lincoln had said in his First Inaugural Address.4 Five years and seven hundred thousand war deaths later, the framers of the Fourteenth Amendment hoped not only to prevent a resurgence of secessionism but also to protect future generations against insurrectionism. An early draft of Section Three limiting its reach to those who had participated in “the late insurrection” was eliminated in favor of language that disqualified both past and future insurrectionists who had taken an oath to uphold the Constitution. “This is to go into our Constitution and to stand to govern future insurrection as well as the present,” said one senator during floor debate.5
Without a disqualification clause that would endure, a Congressional committee warned, “flagrant rebellion, carried to the extreme of civil war,” would become “a pastime.” Future insurrections could be defeated by force of arms but “the battle may be still fought out in the legislative halls of the country.”6 Insurrectionists could take over state legislatures, state houses, Congress, the cabinet, and even the White House. Section Three was meant to prevent that possibility. Its framers intended Section Three: (1) to automatically disqualify insurrectionists; (2) to apply not only to the Civil War but also to future insurrections; and (3) to bar anyone who has betrayed an oath to uphold the Constitution from becoming President of the United States. It remains in place and in force today.
“This brief seeks to provide the Court with an understanding of how the events surrounding the 2020 election and the violence on January 6, 2021, appear in relation to events that have caused democratic erosion and collapse in other countries.
Democracy is historically rare. For the vast majority of human history, people have been the subjects of despots, monarchs, and empires. Some of these societies were ruled well, and some poorly – but in none of them were citizens able to choose their leaders, peacefully express the policies by which they wished to be governed, and thereby alter their country’s course when needed. Democracy has proven to be a uniquely self-correcting system that has created the wealthiest, freest societies that have ever existed.
But democracy is fragile. In the 1930s and 1940s, as democracies fell to authoritarians on the left and right, America became one of just 12 surviving democracies by 1942.2 The years since saw democracy gain ground globally. But over the last 17 years, democracies have once again been culled.3
While the Cold War was marked by democracies collapsing via coups and wars, the majority of decline and failure today occurs under democratically elected politicians who use their popularity to undermine constitutions, laws, and norms from within. Most democracies die now at the hands “not of generals but of elected leaders — presidents or prime ministers who subvert the very process that brought them to power.”4 The decline and loss of democracy can be extremely rapid. Severe polarization that enables leaders to erode democracy with voter support unfolds intensely, often in a handful of years.5
Since our founding, Americans have understood our system of government to be precious. That commitment has allowed us to build what is now the oldest and longest-standing democracy on our planet.
But the longstanding vigor of our democracy also creates a unique vulnerability: most of our nation takes our strong institutions for granted. While the experience of government collapse was very much within the living memory of the drafters of the Fourteenth Amendment when they sought to create checks against the overthrow of America’s constitutional order in 1868, Americans today have no reference point for an experience that could end our form of government.
This brief steps outside the limits of our firsthand experience to consider historical and comparative experiences of how democracies are attacked from within, weakened, and at times, destroyed.
Brief amici curiae of Retired State Supreme Court Justices
[Includes James Nelson (Associate Justice, Montana Supreme Court, 1993-2013).]
“The Supremacy Clause requires state courts to enforce federal constitutional provisions where they apply to state-law causes of action. And state courts have continuously enforced Section 1 of the Fourteenth Amendment—including the Equal Protection and Due Process Clauses—since Reconstruction. In this respect, Section 3, like the presidential qualifications established in Article II, operates like Section 1: state courts do not require congressional permission to enforce it.
Under the Electors Clause, states’ plenary power to appoint presidential electors allows states to condition appointment on their voting only for constitutionally eligible candidates. This necessarily includes power to decide whether candidates are eligible. Neither the Twelfth nor the Twentieth Amendment, nor any other constitutional provision, commits this determination exclusively to Congress or strips states of their power.
State courts have a particular interest in vindicating Section 3’s purpose: protecting the republic from insurrectionists returning to power. Trump exemplifies this risk by repeatedly threatening judges, judicial employees, and others involved in the court system. Declining to apply Section 3 for fear of Trump-incited mob violence would not prevent that violence; it would simply shift its burden to thousands of justices, judges, and court staff, and would invite more chaos, violence, and insurrection.”
“Amicus files this brief to underscore that Section 3 is not some historical relic or afterthought but is instead a vital and integral part of the 14th Amendment. It is designed to ensure that the ambitious rights that the 14th Amendment guarantees can withstand the resistance that its framers knew was sure to recur—not just in the immediate post-War period, but far into the future. Its object was the insurrectionist spirit that, Frederick Douglass foresaw, would be “passed from sire to son”—an “enmity” that would “not die out in a year; it will not die out in an age.”
The 14th Amendment, at its most ambitious, was “a plan for rebuilding a shattered nation.” Cong. Globe, 39th Cong., 1st Sess. 69 (1866) (speech of Sen. Thaddeus Stevens). Viewed even modestly, it compelled a stunning transformation of the trajectory of this country’s ongoing struggle for a more perfect union. Drafted and ratified in the urgency of the post-Civil War environment, and in the wake of the assassination of President Lincoln, the 14th Amendment represents an inspiring feat of ambitious legislative vision and political pragmatism. Without question, the rights to equal protection and due process conferred in Section 1 constitute the heart of the Amendment. But the provisions designed to protect those rights from being snuffed out are of equal importance to the Amendment’s overall structure, strength and meaning.
A principal concern of the Congress that drafted and debated the 14th Amendment was ensuring that the rights guaranteed in Section 1 would have the chance to come to fruition. Key to this goal was ensuring, in Section 3, that former rebels and insurrectionists would not resume power and frustrate the promise of the new republic. Section 3 is designed to protect our multiracial constitutional democracy. To abandon Section 3 now would destabilize the balance struck by the 14th Amendment’s framers—a balance between guaranteed rights and structural tools that would allow those rights to withstand resistance to the vision and scope of the Amendment’s core promises.
Section 1, the most well known provision, guarantees birthright citizenship, due process of laws, protection for the privileges and immunities of citizenship, and equal protection of laws. Its focus was ensuring the full citizenship of Black people for the first time in our country’s history. But the 14th Amendment’s framers understood that the transformative potential of Section 1 would require protection from usurpation or abuse. Sections 2 and 3 of the 14th Amendment were designed to provide that protection. Section 2 sets forth a representational punishment regime for states that deny voting rights to Black men. Section 3 was designed to protect the political, judicial and military ranks of our republic against those who, having held office previously, demonstrated their disloyalty to the Constitution. As the congressional Joint Committee on Reconstruction explained, to return to political power those who violated their oath to uphold the Constitution and leave vulnerable the integrity of the republic would be a “madness and folly.” H.R. Rep. No. 39-30, at 98 (1866). To do so now would be no less so.
Section 3 was enacted for such a time as this, and for such a figure as President Trump. Perhaps we hoped we would never need to activate its use again, and certainly not against an officer as highly positioned as the President of the United States. Section 3’s use is compelled in only the most rare and extreme circumstances.
January 6th, and the weeks leading up to it, was such a circumstance. President Trump’s effort to overturn the results of the November 2020 election—by targeting the legitimacy of votes cast by Black voters in select “urban” areas that his followers would associate with race, by using racist dog whistles to describe voters in those jurisdictions and those charged with counting the votes, by making relentless and unfounded attacks on Black poll workers, and by leading an assault on the Capitol that featured the Confederate flag parading through its halls—represents precisely the dangers that the 14th Amendment’s framers sought to protect our republic against. Donald Trump has been found by the State of Colorado to have engaged in insurrection. That finding was made by a legitimate state court, after a trial on the merits at which Mr. Trump presented a case in opposition, and was upheld by that state’s supreme court. By its plain language, Section 3 thus disqualifies Mr. Trump from holding state or federal office, absent amnesty granted by two-thirds of each house of Congress. ”
“On January 6, 2021, then-President Donald J. Trump stood before a crowd of over 50,000 people and directed them to “walk down to the Capitol” with him and “fight like hell” to “take back our country” because the 2020 election had been stolen from him, a situation which, he said, allowed him and his supporters “to go by very different rules.” Appendix to Petition for Writ of Certiorari at 291a, 317a.3 Mr. Trump’s audience, primed by months of Mr. Trump’s relentless and baseless attacks on the legitimacy of the 2020 presidential election, obeyed his orders and engaged in an unprecedented assault on democracy. Mr. Trump now claims that the First Amendment shields him from any responsibility for the consequences of his actions. There is no reasonable reading of the First Amendment that confers freedom to engage in insurrection.4
January 6 marked the violent culmination of a months-long course of conduct designed to secure Mr. Trump’s hold on power despite his defeat in the 2020 presidential election. Even before Election Day, Mr. Trump had been claiming that the only way he could lose the election was if it were “rigged.” Anderson v. Griswold, 2023 WL 8770111, at *40 (Colo. Dec. 19, 2023). When confronted with the reality of his defeat, Mr. Trump rejected the indisputable evidence he had lost and immediately began working to persuade the public that the election had been stolen. Without evidence, he repeatedly claimed that “Swing States” had found “massive VOTER FRAUD.” Id. He sought to pressure state officials across the nation to overturn the election results, even calling local officeholders directly to persuade them to adopt his fictional narrative. Id. Mr. Trump’s public pressure campaign against these officials had grave consequences, as he intended it would: wide swaths of the public believed his claims and joined in, threatening state officials with harassment and violence. Id. at *41. Mr. Trump was well aware of those activities and his role in instigating them. Id. Yet Mr. Trump disregarded the growing swell of chaos and continued to “fan the flames” of national discord anyway. Id. So-called “Stop the Steal” rallies proliferated nationwide. Id.
Mr. Trump’s efforts to disrupt the post-election process failed one after another. The date drew near when Congress would certify the election results and confirm President Biden’s victory in the election, as the Constitution and the Electoral Count Act require. Mr. Trump, still refusing to accept defeat, called for a “[b]ig protest in D.C. on January 6,” the day Congress would meet to certify the 2020 election results, infamously telling his supporters: “Be there, will be wild!” Anderson, 2023 WL 8770111, at *41. Tens of thousands heeded his call, including members of violent far-right extremist groups—whom he specifically courted—and many individuals who came armed. Id. at *41–42; see also id. at *47 (noting that Mr. Trump “told the Proud Boys to ‘stand back and stand by’ during a debate for the 2020 presidential election”).
Mr. Trump had worked for months to fashion a powder keg. On January 6, he threw the match. That afternoon, Mr. Trump addressed the crowd he had summoned to the Ellipse, just blocks away from the Capitol, where Congress was certifying the election’s results. He told those gathered before him to “confront this egregious assault on our democracy,” and “show strength” or else “you’re not going to have a country anymore.” Anderson, 2023 WL 8770111, at *43. Mr. Trump’s audience did as it was told. Attackers breached the Capitol’s defenses, forced entry, and temporarily obstructed Congress’s electoral vote count. Id. In the process, the attackers violently assaulted amici and other Capitol Police officers, striking them and spraying them with toxic chemicals. Am. Compl. ¶¶ 157–64, Smith, No. 21-cv-2265.
Based on Mr. Trump’s involvement in the January 6 attack, Respondents—a group of Colorado electors—challenged his eligibility to be on the State’s 2024 Republican presidential primary ballot, arguing he was disqualified under Section Three of the Fourteenth Amendment because he “engaged in insurrection.” The Colorado Supreme Court agreed. Mr. Trump’s defense, both below and before this Court, rests in part on a claim that his participation in the January 6 attack on the Capitol was protected First Amendment expression and therefore cannot support a finding that he engaged in insurrection. Pet’r Br. 37–38. That First Amendment defense fails for two independent reasons.
First, the First Amendment does not protect speech that forms an integral part of unlawful activity. The Colorado courts did not disqualify Mr. Trump from the ballot because of his speech, but rather because it found he had engaged in insurrection. It is well settled that the First Amendment does not shield a defendant from liability “merely because [his] conduct was . . . carried out by means of language.” Cal. Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 514 (1972) (citation omitted). To hold otherwise “would make it practically impossible ever to enforce laws against . . . many . . . agreements and conspiracies deemed injurious to society.” Id. (citation omitted). Put differently, “[s]peech intended to bring about a particular unlawful act has no social value; therefore, it is unprotected.” United States v. Hansen, 599 U.S. 762, 783 (2023); see also United States v. Miselis, 972 F.3d 518, 533 (4th Cir. 2020) (“Speech taking some form other than abstract advocacy,” such as conspiracy, solicitation, aiding and abetting, and other civil and criminal misconduct, simply “doesn’t implicate the First Amendment.”) (internal quotation marks omitted). The speech at issue here—including Mr. Trump’s explicit instructions to a vast crowd to assault the Capitol and disrupt the proceedings of Congress—is precisely the kind of speech that is excluded from the First Amendment’s protections.
Second, if the First Amendment is implicated at all, it offers no protection for speech, like Mr. Trump’s, that incites violence. In Brandenburg v. Ohio, 395 U.S. 444 (1969) (per curiam), this Court set forth a test for determining when pure speech crosses the line from protected expression to unprotected incitement to violence. It held that advocacy may be lawfully proscribed where it “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Id. at 447. Mr. Trump’s January 6 speech was replete with “incendiary rhetoric” such as calls to “fight,” “fight like hell,” and to “walk down to the Capitol” to “take back our country!” Anderson v. Griswold, 2023 WL 8006216, at *21, *42 (Colo. Dist. Ct. Nov. 17, 2023). These words, interpreted as a “call to arms” by Mr. Trump’s audience, exceeded the bounds of permissible speech. Id. at *21. They exhorted the crowd to adopt any means necessary to stop the constitutionally required electoral certification process then underway. Violence and lawless action were not only likely to result from these words—they actually did. Three law enforcement officers died, and many others were injured in the riot. JA335, JA1330. For these reasons, the First Amendment poses no obstacle to the Colorado Supreme Court’s decision to disqualify Mr. Trump from the ballot. This Court should affirm the general principle that speech like Mr. Trump’s, calling for and in service of the violence seen at the Capitol on January 6, is not protected by the Constitution.”
“The judicial duty to enforce the Fourteenth Amendment proscription of oath-breaking insurrectionists2 holding public offices constitutes perhaps the most important and disturbing obligation that a judge must fulfill. Thankfully, the need to perform this duty arises rarely.
Section Three’s architects deliberately decided to limit voters’ choices in individual election so that our system of constitutional democracy would survive. They insisted on especially vigorous enforcement of Section Three against those who resisted election results and sought to discourage voting. Judicial failure to enforce Section Three would put all future elections at risk for the sake of appeasing a group of voters in a single election. Section Three reflects a constitutional judgment that those who swear a solemn oath to obey the Constitution and then rise up against it pose a special danger because they are especially untrustworthy. The risk to the system of constitutional democracy reaches its apogee when an oath-breaking insurrectionist candidate who has resisted previous election results and has a substantial following runs for President. Cf. Jack Nicas, Brazil Bars Bolsonaro From Office for Election-Fraud Claims, N.Y. Times, June 30, 2023 (Brazil’s top electoral court barred former President Bolsonaro from running for President until 2030 because he falsely claimed electoral fraud).
The Founders of the original Constitution recognized that an elected President not loyal to constitutional values could destroy the republic. They sought to ensure presidential loyalty to the Constitution by prohibiting voters from electing a foreign-born President, requiring an oath of fealty to the Constitution, and by prohibiting acceptance of any valuable from a foreign government.
The history of democracy loss in other countries shows that elected Presidents not loyal to the constitutional system destroy democracies and that prior participation in insurrection predicts authoritarianism. Hitler, Mussolini, Hugo Chávez, and Juan Perón sparked political violence, won elections, and then established authoritarian rule. Elected heads of state not loyal to democracy persecute political enemies while protecting allies, subdue opposition media, and make elections unfair to entrench themselves in power.
The need to vigorously enforce Section Three to protect the Constitution becomes especially urgent when an oath-breaking insurrectionist presidential candidate has a substantial following and has shown that he does not accept election results. Thus, the Court’s responsibility to protect the constitutional system supports affirmance of the Colorado Supreme Court’s ruling.”
“The argument by President Trump and certain of his amici that the President is not an “officer of the United States” under Section Three of the Fourteenth Amendment is both counterintuitive and historically inaccurate. A wide variety of evidence demonstrates this.
1. Corpus linguistic evidence demonstrates that the phrase “officer of the United States” was not a term of art when the Constitution was adopted. Instead, it referred broadly to almost all federal officials whose positions were established by law – be that the Constitution or a federal statute. And it was broad enough to encompass both elected officials generally and the President specifically. The text of the Constitution repeatedly identifies the Presidency as an “office,” and at the time of the Nation’s Founding the President was commonly referred to as an “officer of the United States” or an “officer.”
2. There is no support for the notion that an “officer of the United States” refers solely to someone appointed, rather than elected, to office. Indeed, at the time the Constitution was ratified, the terms “appoint” and “elect” were largely used interchangeably. Nor is there any merit to the contention that because the Presidential Oath in Article II does not refer to “support[ing]” the Constitution, the President is exempted from Section Three. Indeed, many state officers in Confederate states took an Oath similar to the Presidential Oath under Article II and were unambiguously covered by Section Three despite not having taken an Oath that tracked the “support” language of Article VI of the Constitution.
3. There is ample evidence at the time of ratification of the Fourteenth Amendment that the President was considered not just an officer, but an “officer of the United States.” This evidence includes the text and legislative history of the Fourteenth Amendment, references to “officers” in the impeachment trial of President Andrew Johnson, President Johnson’s Appointment Proclamations, and the Amnesty Proclamations of Presidents Lincoln and Johnson.”
“When Section Three of the Fourteenth Amendment was framed, constitutional lawyers recognized that an insurrection involved a) an assemblage, b) resisting any law or interfering with the course of a governmental proceeding, c) by force or intimidation, d) for a public purpose. Persons engaged in an insurrection when they incited, assisted, or otherwise acted in concert with others bent on resisting law by force or violence for a public purpose. The Members of Congress who played a crucial role drafting Section Three stated that no difference existed between inciting and engaging in an insurrection.
The Colorado Supreme Court adopted legal standards that are consistent with how the legal community understood insurrection at the time Section Three was framed and ratified. In particular, the justices applied the correct nineteenth century standards to decide whether an insurrection occurred on January 6, 2021, and whether Donald Trump engaged in that insurrection.”
There are many more briefs posted on the Supreme Court website docket for this case. Have fun!
For you true legal nerds, here is a link to the sixth post of a multi-post explanation of why so much history is referred to in the above briefs and why some of the briefs in support of Trump have gotten the history wrong. Links to the other posts are provided in the post linked below:
The Use and Misuse of Section Three’s “Legislative History:” Part II
“Constitutional legislative history can be a slippery thing. While it can provide potentially probative, second-best evidence of constitutional textual meaning, it can also be misused and abused to mislead and misinform. One must not confuse a limited purpose with a limited (or ambiguously-maybe-limited) text. One should not treat legislative silence as acquiescence or ambiguity. One must be wary of inaccurate statements by isolated dissenters to a law. One should not selectively ignore clear evidence against one’s thesis. And one should be careful in drawing inferences from changed or abandoned proposals. Unfortunately, Lash’s analysis of Section Three—and even more so some of the commentary and briefing that has relied upon Lash – does not respect these limitations and simply cannot be trusted as legal analysis.”
