This Argument has Legs: the 14th Amendment Disqualifies Trump from the Presidency

Following the publication of Prof. William Baude and Prof. Michael Paulsen’s article The Sweeping Force of Section 3 last month[1], discussion has again intensified around Donald Trump’s eligibility to run for president in 2024. The latest eligibility question centers around whether Trump’s conduct following the 2020 presidential election disqualifies him under Section 3 of the 14th Amendment to the US Constitution. Either because of fatigue with the issues surrounding January 6th, 2021, political partisanship, or for other reasons, many on the Right—even those who are no longer friends or allies of President Trump—do not seem to be giving this question its proper due. The Wall Street Journal’s Editorial from September 4th is a perfect example of this.[2] “Mr. Trump’s behavior was reprehensible, as we noted at the time and have since,” they state, “but that’s far from saying it was an insurrection or rebellion under the statutory or constitutional meaning of those terms.” “What matters today, and in the future,” they continue, “is whether the clause applies to the facts of a specific case.”

After reading Baude and Paulsen’s paper, other academic papers on the subject (see below), the January 6th Commission report, the criminal indictments against President Trump from the Georgia and Washington DC cases, as well as other evidence and video surrounding the aftermath of the 2020 election, it’s very hard to conclude that “the facts of this specific case” do not somehow constitute “rebellion,” “insurrection” or otherwise “providing comfort to or aiding the enemies of the United States,” the three independent disqualifying criteria laid out in Section 3 of the 14th Amendment. Ultimately it seems pretty clear that Trump tried to subvert the processes of the government following the 2020 election to keep himself in power. That is a coup d’état. If a coup does not constitute insurrection or rebellion, it’s hard to know what does constitute insurrection or rebellion short of an armed Trump storming the capital himself. This legal theory has real legs, and ought to be taken seriously. We all owe it to ourselves to power through our Trump fatigue and give this argument the attention it deserves.

This analysis will not pretend to be a comprehensive legal analysis of either the terms of Section 3, or of the events of January 6th. It will, however, serve as a summary of both. The more important goal of this article is to present—and subsequently refute—many of the arguments people are now making opposing invoking Section 3 against President Trump.

Before going any further, however, it’s worth pointing out that Professors Baude and Paulsen are not Liberals looking for yet another angle to prevent Trump from becoming president again. They are both constitutional Originalists, and members of the Federalist Society, a legal organization dedicated to Originalism and one which can generally be thought of as “conservative” in the traditional sense of the word. That is why the publication of their paper was so newsworthy in the first place: it was conservative legal scholars now arguing that Trump was ineligible. This undoubtedly added a new wrinkle to things.

THE LEGAL QUESTION PART 1 – WHAT IS SECTION THREE OF THE 14th AMENDMENT?

Before we can identify whether President Trump is culpable under Section 3 of the 14th amendment, we first need to do a few things. First, we need to lay out what Section 3 is and what it says. Second, we need to try and provide some definitions for key terms. Let’s look at the text of Section 3 first.

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.

Without getting into the entire history of the Reconstruction Amendments, as they’re known, the 14th Amendment, and specifically Section 3 of the 14th Amendment, was put in place to punish Confederate rebels and prevent them from holding office in the future. Most people know the 14th Amendment for the Equal Protection Clause, but Section 3’s final language was substituted as part of an agreement between Republicans in Congress and President Andrew Johnson in Spring of 1866. The legislative history of this part of the 14th amendment is both fascinating and sad, as it was tied up with “Radical” Republican efforts in congress to provide voting rights for black Americans. The final text of Section 3 replaced a previously inserted provision preventing former Confederates from voting in national elections at all for a certain period of time, and additionally, part of the compromise was also to remove any overt black suffrage provisions as well.[3]

Importantly, however, the text of Section 3 was not just directed at the former rebels, but also to prospective officials who in the future took an oath to the Constitution, only to subsequently betray it thereafter. The 14th amendment can—and should—also be thought of as a supplement to the original Constitution’s Treason clause, which itself addresses both former and future rebels towards the United States[4]. Combining the Treason Clause and Section 3 of the 14th Amendment creates a kind of “umbrella policy” against unfaithful conduct towards the United States government.

Lastly, it is worth nothing that Republicans in Congress at the time felt it imperative to codify the provisions of the 14th Amendment into an actual constitutional amendment. This was largely because of growing intransigent behavior from southerners following the formal end of the Civil War in April 1865, which quickly convinced members of Congress that additional solidification of these key provisions would be needed to be appropriately insulated from future congresses. Making these laws “super laws,” as Constitutional amendments can be thought of, would make it more likely they stood the test of time. While they were likely more worried about the durability of other parts of the 14th amendment (notably the Equal Protection Clause), the codification of Section 3 itself as part of a constitutional amendment is significant.[5]

THE LEGAL QUESTION PART 2 – DEFINITIONS OF KEY TERMS

Among other things, Baude and Paulsen’s paper provides a great historical textual context for Section 3, including contemporaneous definitions of those key terms as they were understood at the time. For our purposes, the key terms from Section 3 are: “engaged in,” “rebellion”, “insurrection”, and “given aid or comfort to the enemies thereof.” Importantly, one of the other key words in Section 3 is the word or. One needs to only be guilty of engaging in one of the kinds of conduct cited above (rebellion, insurrection or giving aid or comfort to the enemies of the United States). Conduct under any one of these criteria is therefore considered disqualifying. Before we get into that though, let’s pull some definitions of “rebellion,” “insurrection,” and “engaged in” from online dictionaries to set a foundation for the next part of our analysis.

These definitions can be supplemented with the contemporaneous definitions of these terms around the time the 14th amendment was passed. Baude and Paulsen’s paper discusses this as follows:

Nineteenth century dictionaries contain definitions of “insurrection” and “rebellion” that substantially corroborate our working definitions. Webster defined “insurrection” as “[a] rising against civil or political authority; the open and active opposition of a number of persons to the execution of law in a city or state.” Rebellion was “[a]n open and avowed renunciation of the authority of the government to which one owes allegiance.”

Importantly, Webster also noted several distinctions between these and other terms. In defining rebellion, he distinguished an insurrection as “a rising in opposition to a particular act or law, without a design to renounce wholly all subjection to the government,” while a rebellion was a more categorical “attempt to overthrow the government, to establish a different one or to place the country under another jurisdiction. And in defining insurrection, Webster noted that insurrection is “equivalent to sedition, except that sedition expresses a less extensive rising of citizens.” This suggests a spectrum from sedition (not covered by Section Three) to insurrection to rebellion (both covered).

Along similar lines, a prominent mid-century legal dictionary, John Bouvier’s Law Dictionary in its 1868 edition, contains detailed definitions of insurrection, rebellion, and aid and comfort. “INSURRECTION” was defined simply as “[a] rebellion of citizens or subjects of a country against its government.” “REBELLION” is correspondingly defined: “The taking up arms traitorously against the government. The forcible opposition and resistance to the laws and process lawfully issued.” Bouvier’s thus treated “insurrection” and “rebellion” as nearly interchangeable terms, both involving some degree of concerted and forcible opposition to the authority of the lawfully constituted government but not clearly distinguishing between them.

“At the same time,” they add:

Webster also conceded some overlap in these terms, writing that “[i]nsurrection may be, but is not necessarily, rebellion” and that despite these either sedition or rebellion.” This suggests a great deal of potential breadth and overlap in these terms.

Definitions for “aiding or providing comfort to” are a little harder to look up, but (current) definitions for “aiding and abetting” can be readily ascertained. These include “helping and encouraging” (Merriam Webster), and “to help someone to do something illegal or wrong” (Cambridge). Baude and Paulsen’s historical work for definitions on these terms should also be referenced, where they cite Bouvier’s 1868 legal dictionary’s “instructive definition of ‘AID AND COMFORT’ as ‘[h]elp, support, assistance, counsel, encouragement.’”

As Baude and Paulsen note, “Indeed, the bigger picture point for understanding Section Three is that ‘insurrection’ and ‘rebellion’ in tandem, cover pretty much the entire terrain of large-scale unlawful resistance to government authority.” “Whether it be called ‘insurrection’ or ‘rebellion’” they continue, or “whether a covered individual is thought to have ‘engaged in’ such activity or given ‘aid or comfort to “enemies’ engaging in such activity, Section Three’s disqualification is triggered. The language is not unlimited, to be sure. But the broad and overlapping terms are not intended to be hospitable to loopholes or artful, narrow, technical evasions.”[6] A we stated earlier, these “broad and overlapping terms” of Section 3 can be further supplemented with the Treason Clause to create an even broader “umbrella policy” against conduct constituting notable infidelity to the US government.[7] The bottom line is that the forest should not be lost for the trees here.

KEY EVIDENCE

Let’s now turn to the key evidence against Trump surrounding the aftermath of the 2020 presidential election. For brevity’s sake, I will list what I deem to be the key information in bullet point form, and similar to Jack Smith’s second indictment, I’ll do so categorizing the evidence by state, when appropriate. For those looking for a more comprehensive analysis, read the January 6th Commission’s Report[8] (biased as it is, it contains a lot of important information that is generally not disputed), Jack Smith’s second indictment against Donald Trump[9], and lastly, Fani Willis’ indictment against Trump in Georgia[10].

There are essentially five related but different areas of evidence here. The different sections of evidence can be thought of in Venn Diagram fashion, with each section having some relation to, and bearing on, the others.

• First, Trump himself—in tandem with others—actively attempted to fraudulently disrupt states from certifying election results

• Second, that Trump attempted to use the Department of Justice (DOJ) to:

  • change the election results

  • to have the DOJ claim fraud to stop states from certifying their election results

  • to falsely claim that the DOJ was investigating substantive evidence of fraud when they were not

  • And lastly, when DOJ officials declined to participate in these schemes, Trump threatened to fire and replace them

• Third, Trump himself personally participated in schemes of false elector slates to confuse, alter, or otherwise disrupt the presidential election certification process

• Fourth, Trump personally attempted to get Vice-President Mike Pence to unilaterally change the outcome of the election, either by decertifying legitimate electoral votes cast from states that voted for Biden, claiming fraud and throwing certain electors’ votes aside, or by counting false electoral votes from the fake slates put forth by the president and his team highlighted above

• Lastly, Trump caused a crowd to gather at the Capitol on January 6th, 2021 and incited them by claiming the election was fraudulent, stolen, and corrupt. Additionally, and more importantly, after he had incited them with his speech, Trump fully intended to participate as part of this now hostile crowd by going to the Capitol himself. Most importantly was that Trump attempted to participate after he had been informed that at least some members of the crowd were armed. The only reason he didn’t go to the Capitol that day with the “tens of thousands” of people was because Trump’s security detail wouldn’t let him, confident that such a demonstration would devolve into something far from peaceful, and far from democratic.

CATEGORY 1 – STATE ELECTION INTERFERENCE

ARIZONA[11]

• Trump himself (along with Co-Conspirator 1 in Jack Smith’s Indictment, who has been speculated to be Rudy Giuliani) called the Speaker of the Arizona House of Representatives (a Republican) on November 22nd, claiming “among other things, that a substantial number of non-citizens, non-residents, and dead people had voted fraudulently in Arizona.” The Speaker asked Giuliani for evidence of this, Giuliani replied he didn’t have any but could provide it later.

• On this same call, “The Defendant and Co-Conspirator 1 asked the Arizona House Speaker to use the legislature to circumvent the process by which legitimate electors would be ascertained for Biden based on the popular vote, and replace those electors with a new slate for the Defendant. The Arizona House Speaker refused, responding that the suggestion was beyond anything he had ever heard or thought of as something within his authority.”

• After the Arizona House Speaker put out a public statement stating he wouldn’t violate the law to change the election for Trump’s benefit, on January 4th, 2021, Co-Conspirator 2 (speculated to be White House lawyer John Eastman) called the Speaker “to urge him to use a majority of the legislature to decertify the state's legitimate electors.” The Speaker explained yet again that investigations had produced no evidence of substantial fraud in the state, but Eastman still decided to push the Speaker to pursue this path “and let the courts sort it out.” The Speaker declined, stating that he did not want to “play with the oath” that he had taken to uphold the US Constitution

• On January 6th, in what would become a recurring theme, Trump repeated the false claim that 36,000 non-citizens had voted in Arizona in his speech at the Ellipse.

GEORGIA

• Trump personally called Georgia Governor Brian Kemp on December 5th [12] and asked him to call a special session of the Georgia legislature so lawmakers could override the results and appoint electors who would back him instead of the Biden electors

• Notably, Trump did this after being told that Kemp and his family were mourning the loss of a family friend who had been killed in a car crash the day before.

• Trump later that day tweeted: “I will easily & quickly win Georgia if Governor @BrianKempGA or the Secretary of State permit a simple signature verification. Has not been done and will show large scale discrepancies. Why are these two “Republicans” saying no? If we win Georgia, everything else falls in place!”

• Trump said later that evening in a rally in Georgia that “Your governor could stop it very easily if he knew what the hell he was doing… So far we haven’t been able to find the people in Georgia willing to do the right thing.”

• In perhaps the most famous episodes of these personal interventions from Trump, Trump “and others” called Georgia Secretary of State Brad Raffensperger on January 2nd, where the following occurred[13]:

  • Trump “lied to the Georgia Secretary of State to induce him to alter Georgia’s popular vote count and call into question the validity of Biden electors’ votes, which had been transmitted to Congress weeks before”

  • Trump claimed 5,000 dead people voted in Georgia, only to have Raffensperger tell Trump the real number was 2. Trump and his attorney had previously been told of the falseness of this claim on December 3rd and in the days thereafter but attempted to repeat it to Raffensperger anyways.

  • Trump claimed “Thousands of out-of-state voters had cast ballots in Georgia’s election,” only to be told that “those numbers…they’re not accurate. Every one we’ve been through are people that lived in Georgia, moved to a different state, but then moved back to Georgia legitimately…they moved back in years ago.” Trump and his team had also been notified of the falseness of this claim no later than December 8th.

  • He (Trump) told Raffensperger (that he, Trump) needed to “find” 11,780 votes, and “insinuated that the Georgia Secretary of State and his Counsel could be subject to criminal prosecution if they failed to find election fraud”

  • The full audio of this call is publicly available online

• Trump repeated the false claims that Raffensperger had disabused him of on the January 2nd call—and that other Georgia officials had done repeatedly prior to this—again on January 3rd on Twitter, and again on January 6th in the speech to the crowd at the Capitol.

MICHIGAN[14]

• On November 5th, 2020, the day after the election, Trump claimed there had been a large, suspicious “vote dump” in Detroit

• On November 20, Trump invited the Speaker of the House of Michigan and the Majority Leader of the Michigan Senate to the Oval Office to make his case of an illegitimate vote dump in Detroit. Both attended the meeting, but neither agreed this claim had any validity, and they both issued a joint statement after the meeting stating as much

• On December 1st, Trump raised the Detroit vote dump claim with the US Attorney General, who told Trump what occurred in Michigan “was the normal vote counting process and that there was no indication of fraud in Detroit.”

• Trump pressed on the next day, stating that “at 6:31 in the morning, a vote dump of 149,772 votes came into Detroit unexpectedly.”

• Then on December 4th, Rudy Giuliani sent a text to the Michigan Speaker reiterating the fraud claim in yet another attempt to get the Speaker to reverse the ascertainment of Michigan’s electors. Included in this was a false statement that Georgia was going to change the certification of its electors, presumably in an attempt to trick the Speaker

• Similarly, on December 7th, Giuliani took a similar tack with the Michigan Senate Majority Leader, sending him a text asking him to pass a joint resolution that the election was in dispute, that there was an investigation going on, and that the electors previously certified by Governor Whitmer of Michigan were not official.

• On December 14th, in response to this, both the Michigan House Speaker and the Senate Majority leader announced that they would not decertify “legitimate election results or electors in Michigan.” In another joint statement, they reiterated that they had investigated the claims of fraud, and found them to be of no validity.

• Then on January 6th, after having been told over and over again it wasn’t true, Trump reiterated the claim of a vote dump in Detroit yet again

PENNSYLVANIA[15]

• On November 25th, the day after the Pennsylvania Governor signed a certificate of ascertainment for Pennsylvania’s electors, Rudy Giuliani held an event at a hotel in Gettysburg, PA and stated that Pennsylvania “had issued 1.8 million absentee ballots and received 2.5 million in return.” “In the days thereafter,” a Trump campaign staffer and Trump’s Deputy Campaign Manager stated this was “just wrong,” and that “there’s no way to defend it,” and lastly, that “we’ve been saying this for a while. It’s very frustrating.”

• On December 4th, four Republican leaders of the Pennsylvania state legislature issued a statement that their assembly lacked the power to overturn the popular results of the election and appoint its own electors, only to see Trump re-tweet a post that labeled the four legislators cowards.

• On December 31st and January 3rd, Trump repeatedly claimed that Pennsylvania had 205,000 more votes than voters to the Acting Attorney General and Acting Deputy Attorney General of the DOJ, only to be told each time that this was false

• Similar to his pattern in Michigan, Trump again reiterated the claim that Pennsylvania had 205,000 more votes than voters on January 6th, despite previously being told repeatedly that this was false

WISCONSIN

• On November 29th, Wisconsin conducted a statewide recount and found that Biden’s margin of victory was actually greater over Trump than initially thought.

• Subsequently on December 14th, the Wisconsin Supreme Court rejected an election challenge by Trump’s campaign.

• Consequently, on December 21st, the Wisconsin governor signed a certificate ascertaining Biden’s electors as the state’s legitimate electors.

• That same day, Trump issued a tweet claiming “Republicans in Wisconsin should take these 3 strong decisions to their State Legislators and overturn this ridiculous State Election. We won in a LANDSLIDE”[16]

• On December 27th, Trump again claimed to his Acting Attorney General and Acting Deputy Attorney General that similar to Pennsylvania, there had been more votes than voters.

• Similar to Michigan and Pennsylvania, Trump repeated the false “more votes than voters” claim on January 6th

CATEGORY 2 – THE “ALTERNATIVE” ELECTOR SLATE SCHEMES

Because it’s a somewhat nebulous part of our constitutional system, a brief explanation of the Electoral College and its workings is appropriate here. The Electoral College was originally devised as an alternative to a popular-vote-determined presidential election. The way the construct was originally devised was that the state legislatures would choose electors for their state, and those electors would serve as a kind of mini-legislature with the sole purpose of casting presidential ballots. Importantly, the original purpose of these electoral bodies was not to be a pass-through of what either the popular vote or the legislature wanted. Thus, the scheme was a kind of “double insulation” from the president being picked merely by popular election.

It didn’t take long, however, for this to become more democratic, just as most things in America did in the early 19th century. Most states by the time of the Civil War had abandoned the old system (by the time of the Election of 1860, South Carolina was the only state in the Union to not have a popular vote, for this very reason). States began to pass laws that resulted in their electors essentially being a pass-through of the popular vote, such that electors were no longer autonomous individuals with their own voting discretion, but rather mere reflections of the popular vote in that state. Today, most states have a winner-take-all format in the electoral college, where the winner of the popular vote gets all the state’s electoral college votes as well.

The particularly relevant part of this for our current analysis is that today, each party picks a slate of electors in each state in case they win. Electors are generally chosen by party officials at party conventions, and these roles are typically a kind of “party favor” to be handed out for loyalty and good party service. Thus, in most elections, there are multiple slates of electors that exist in theory, except that when one candidate wins, that candidate sends their slate of electors to cast their votes (which happens on the first Monday after the second Wednesday in December—in 2020, that day was December 14th). Once these electors are announced, they are “ascertained” by the state’s governor, who, after the votes are cast, subsequently certifies those elector votes by signing a certificate, and afterwards sends those votes on to Congress for certification by the Vice-President in early January. So that brief overview sets the stage.

• On December 6th, Trump and John Eastman called Ronna McDaniel, Chairwoman of the Republican National Committee (RNC) and conveyed a contingency plan to her where backup electoral slates would be put together in “contested” states (AZ, WI, MI, NV, PA and GA, and then later, NM) in case Trump ended up prevailing in litigation and somehow carrying any, or all of these states. In that call, however, they “falsely represented to her that such electors' votes would be used only if ongoing litigation in one of the states changed the results in the Defendant's favor. After the RNC Chairwoman consulted the Campaign and heard that work on gathering electors was underway, she called and reported this information to the Defendant, who responded approvingly.”[17]

• The next day, December 7th, Giuliani received two memos about the plan for the fake elector slates and a list of attorneys in the “contested” states that might be of help in finding people (electors) who would participate. The plan, according to an Arizona attorney who was called by Co-Conspirator 7, was as follows:

I just talked to the gentleman who did that memo, [Co-Conspirator 5, who is believed to be Kenneth Chesebro]. His idea is basically that all of us (GA, WI, AZ, PA, etc.) have our electors send in their votes (even though the votes aren't legal under federal law ~ because they're not signed by the Governor); so that members of Congress can fight about whether they should be counted on January 6th. (They could potentially argue that they're not bound by federal law because they're Congress and make the law, etc.) Kind of wild/creative ~ I'm happy to discuss. My comment to him was that I guess there's no harm in it, (legally at least) ~ i.e. we would just be sending in "fake" electoral votes to Pence so that "someone" in Congress can make an objection when they start counting votes, and start arguing that the "fake" votes should be counted.[18]

• On December 10th, Chesebro sent both instructions and fake electors certificates to “all points of contact” in the contested states. The instructions were now that these people were supposed to show up at the site where the real electors were gathering on December 14th and to act as if they were supposed to be there.[19]

• Notably, the Trump team initially told the people who were going to represent the Trump campaign as electors the same thing they told Ronna McDaniel at the RNC: that they would be contingency electors and only used if in fact Trump prevailed in the contested states. As December 14th grew closer, however, some of these people had started to sniff out that the real plan was not to use them as contingency electors, but rather to use them as if they were legitimate electors to cause confusion on certification day (January 6th). This was particularly a problem in Pennsylvania, where the Trump team had to reiterate to them on a December 12th conference call that their votes would in fact only be used if Trump prevailed in litigation and won the state. This of course was not true, and would be confirmed as a lie in a memo from Chesebro to Giuliani the next day on December 13th. This was significant, however, because the Trump team had to end up sending different certificates to the Pennsylvania electors that had specific contingency language on it, which risked blowing up the whole plan, simply because, as one campaign official put it, “the other States are signing what he prepared - if it gets out we changed the language for PA it could snowball.”[20]

• On December 13th, Trump asked a senior campaign advisor for an update on “what was going on” with their alternative elector slates. Trump had specifically asked for a statement to be put out on the electors. A conference call was then held where this senior campaign advisor, Giuliani, Co-Conspirator 6, and others discussed the matter, only to conclude that no statement was going to be put out because no one wanted their name attached to a public press release underwriting the false certification of fake electoral votes.[21]

  • If that wasn’t a sign that they knew what they were doing was wrong, nothing is. Important here too is that while Trump may not have been on every email, he was very clearly aware of the general plan and was receiving at least some occasional updates.

• “Then on December 14, the legitimate electors of all 50 states and the District of Columbia met in their respective jurisdictions to formally cast their votes for president, resulting in a total of 232 electoral votes for the Defendant and 306 for Biden.”[22]

• “On the same day, at the direction of the Defendant and Giuliani, fraudulent electors convened sham proceedings in the seven targeted states to cast fraudulent electoral ballots in favor of the Defendant. In some states, in order to satisfy legal requirements set forth for legitimate electors under state law, state officials were enlisted to provide the fraudulent electors access to state capitol buildings so that they could gather and vote there. In many cases, however, as Chesebro had predicted in the Fraudulent Elector Instructions, the fraudulent electors were unable to satisfy the legal requirements.”[23]

• “Nonetheless, as directed in the Fraudulent Elector Instructions, shortly after the fraudulent electors met on December 14, the targeted states' fraudulent elector certificates were mailed to the President of the Senate, the Archivist of the United States, and others. The Defendant and co-conspirators ultimately used the certificates of these fraudulent electors to deceitfully target the government function, and did so contrary to how fraudulent electors were told they would be used.”[24]

• “That evening, at 6:26 p.m., the RNC Chairwoman forwarded to the Defendant, through his executive assistant, an email titled, "Electors Recap - Final," which represented that in "Six Contested States"—Arizona, Georgia, Michigan, Nevada, Pennsylvania, and Wisconsin— the Defendant's electors had voted in parallel to Biden's electors.”[25]

• Though it was almost assuredly doomed to fail given the Fake Electors’ Certificates did not have the respective states’ governors’ signatures on them, the fake electors scheme was complete. Trump knew about it the whole time, and more importantly, participated in it.

CATEGORY 3 – ATTEMPTING TO USE THE DOJ AS LEVERAGE

Here we’re simply going to copy and paste the paragraphs from Jack Smith’s indictment. All of this information is succinct and important, and its difficult to summarize it any better than he did.[26]

• “In late December 2020, the Defendant attempted to use the Justice Department to make knowingly false claims of election fraud to officials in the targeted states through a formal letter under the Acting Attorney General's signature, thus giving the Defendant's lies the backing of the federal government and attempting to improperly influence the targeted states to replace legitimate Biden electors with the Defendant's.”

• On December 22, the Defendant met with Co-Conspirator 4 (speculated to be Jeffrey Clark of the DOJ) at the White House. Co-Conspirator 4 had not informed his leadership at the Justice Department of the meeting, which was a violation of the Justice Department's written policy restricting contacts with the White House to guard against improper political influence.

• On December 26, Co-Conspirator 4 spoke on the phone with the Acting Attorney General and lied about the circumstances of his meeting with the Defendant at the White House, falsely claiming that the meeting had been unplanned. The Acting Attorney General directed Co-Conspirator 4 not to have unauthorized contacts with the White House again, and Co-Conspirator 4 said he would not.

• The next morning, on December 27, contrary to the Acting Attorney General's direction, Co-Conspirator 4 spoke with the Defendant on the Defendant's cell phone for nearly three minutes.

• That afternoon, the Defendant called the Acting Attorney General and Acting Deputy Attorney General and said, among other things, "People tell me [Co-Conspirator 4] is great. I should put him in." The Defendant also raised multiple false claims of election fraud, which the Acting Attorney General and Acting Deputy Attorney General refuted. When the Acting Attorney General told the Defendant that the Justice Department could not and would not change the outcome of the election, the Defendant responded, "Just say that the election was corrupt and leave the rest to me and the Republican congressmen."

• On December 28, Co-Conspirator 4 sent a draft letter to the Acting Attorney General and Acting Deputy Attorney General, which he proposed they all sign. The draft was addressed to state officials in Georgia, and Co-Conspirator 4 proposed sending versions of the letter to elected officials in other targeted states. The proposed letter contained numerous knowingly false claims about the election and the Justice Department, including that:

  • The Justice Department had "identified significant concerns that may have impacted the outcome of the election in multiple States[.]"

  • The Justice Department believed that in Georgia and other states, two valid slates of electors had gathered at the proper location on December 14, and that both sets of ballots had been transmitted to Congress. That is, CoConspirator 4's letter sought to advance the Defendant's fraudulent elector plan by using the authority of the Justice Department to falsely present the fraudulent electors as a valid alternative to the legitimate electors.

  • The Justice Department urged that the state legislature convene a special legislative session to create the opportunity to, among other things, choose the fraudulent electors over the legitimate electors.

• The Acting Deputy Attorney General promptly responded to Co-Conspirator 4 by email and told him that his proposed letter was false, writing, "Despite dramatic claims to the contrary, we have not seen the type of fraud that calls into question the reported (and certified) results of the election." In a meeting shortly thereafter, the Acting Attorney General and Acting Deputy Attorney General again directed Co-Conspirator 4 not to have unauthorized contact with the White House.

• On December 31, the Defendant summoned to the Oval Office the Acting Attorney General, Acting Deputy Attorney General, and other advisors. In the meeting, the Defendant again raised claims about election fraud that Justice Department officials already had told him were not true—and that the senior Justice Department officials reiterated were false—and suggested he might change the leadership in the Justice Department.

• On January 2, 2021, just four days before Congress's certification proceeding, Co-Conspirator 4 tried to coerce the Acting Attorney General and Acting Deputy Attorney General to sign and send Co-Conspirator 4's draft letter, which contained false statements, to state officials. He told them that the Defendant was considering making Co-Conspirator 4 the new Acting Attorney General, but that Co-Conspirator 4 would decline the Defendant's offer if the Acting Attorney General and Acting Deputy Attorney General would agree to send the proposed letter to the targeted states. The Justice Department officials refused.

• The next morning, on January 3, despite having uncovered no additional evidence of election fraud, Co-Conspirator 4 sent to a Justice Department colleague an edited version of his draft letter to the states, which included a change from its previous claim that the Justice Department had "concerns" to a stronger false claim that "[a]s of today, there is evidence of significant irregularities that may have impacted the outcome of the election in multiple States…

• Also on the morning of January 3, Co-Conspirator 4 met with the Defendant at the White House—again without having informed senior Justice Department officials—and accepted the Defendant's offer that he become Acting Attorney General.

• On the afternoon of January 3, Co-Conspirator 4 spoke with a Deputy White House Counsel. The previous month, the Deputy White House Counsel had informed the Defendant that "there is no world, there is no option in which you do not leave the White House [o]n January 20th." Now, the same Deputy White House Counsel tried to dissuade Co-Conspirator 4 from assuming the role of Acting Attorney General. The Deputy White House Counsel reiterated to Co-Conspirator 4 that there had not been outcome-determinative fraud in the election and that if the Defendant remained in office nonetheless, there would be "riots in every major city in the United States." Co-Conspirator 4 responded, "Well, [Deputy White House Counsel], that's why there's an Insurrection Act."

• Also that afternoon, Co-Conspirator 4 met with the Acting Attorney General and told him that the Defendant had decided to put Co-Conspirator 4 in charge of the Justice Department. The Acting Attorney General responded that he would not accept being fired by a subordinate and immediately scheduled a meeting with the Defendant for that evening.

• On the evening of January 3, the Defendant met for a briefing on an overseas national security issue with the Chairman of the Joint Chiefs of Staff and other senior national security advisors. The Chairman briefed the Defendant on the issue—which had previously arisen in December—as well as possible ways the Defendant could handle it. When the Chairman and another advisor recommended that the Defendant take no action because Inauguration Day was only seventeen days away and any course of action could trigger something unhelpful, the Defendant calmly agreed, stating, "Yeah, you're right, it's too late for us. We're going to give that to the next guy."

  • While this seems somewhat innocuous relative to our inquiry here, Trump’s comment about saving this for the next guy seems to be an implicit admission that he had lost the election. This could prove critical in Trump’s legal issues away from Section 3, but also in the sense that he knew he had lost and he was still pursuing “spaghetti at the wall” legal theories to leave no stone unturned to stay in power. Said differently, this meeting may have implications for the fraud claims against him and his culpability under Section 3.

• The Defendant moved immediately from this national security briefing to the meeting that the Acting Attorney General had requested earlier that day, which included Co-Conspirator 4, the Acting Attorney General, the Acting Deputy Attorney General, the Justice Department's Assistant Attorney General for the Office of Legal Counsel, the White House Counsel, a Deputy White House Counsel, and a Senior Advisor. At the meeting, the Defendant expressed frustration with the Acting Attorney General for failing to do anything to overturn the election results, and the group discussed Co-Conspirator 4's plans to investigate purported election fraud and to send his proposed letter to state officials—a copy of which was provided to the Defendant during the meeting. The Defendant relented in his plan to replace the Acting Attorney General with Co-Conspirator 4 only when he was told that it would result in mass resignations at the Justice Department and of his own White House Counsel.

• At the meeting in the Oval Office on the night of January 3, Co-Conspirator 4 suggested that the Justice Department should opine that the Vice President could exceed his lawful authority during the certification proceeding and change the election outcome. When the Assistant Attorney General for the Office of Legal Counsel began to explain why the Justice Department should not do so, the Defendant said, "No one here should be talking to the Vice President. I'm talking to the Vice President," and ended the discussion.

CATEGORY 4 – ATTEMPTS TO PERSUADE PENCE

• When efforts to get the Justice Department to help with his plan to foil the election certification did not come to fruition, Trump turned to his last and most crucial resort: Vice-President Mike Pence

• Trump himself at first tried to use the same kind of false claims he was putting forth to others, but when Pence didn’t bite on the bait, Trump chose to put significant pressure on Pence at his speech on January 6th.

• On December 23rd, Trump re-tweeted a report entitled “Operation Pence Card,” which incorrectly claimed the Vice-President could unilaterally reject electoral votes and change the election for Trump

• “On the same day, Co-Conspirator 2 circulated a two-page memorandum outlining a plan for the Vice President to unlawfully declare the Defendant the certified winner of the presidential election. In the memorandum, Co-Conspirator 2 claimed that seven states had transmitted two slates of electors and proposed that the Vice President announce that ‘because of the ongoing disputes in the 7 States, there are no electors that can be deemed validly appointed in those States.’”

  • As noted above, Co-Conspirator 2 is speculated to be White House lawyer John Eastman

  • Smith notes that two months earlier on October 11th, Eastman had taken the exact opposite position, “writing that neither the Constitution nor the ECA provided the Vice President discretion in the counting of electoral votes, or permitted him to "make the determination on his own.’”

• On several phone calls with Pence in late December and early January, Trump repeated claims of fraud and reiterated that Pence had the power to decertify electoral votes. Particularly, on both Christmas and New Year’s Day, Pence told Trump he did not have the authority to do this, and also that it was improper. On the January 1st call, Trump told Pence “you’re too honest.” Trump responded by again tweeting out plans for a rally at the Capitol on January 6th, saying “The BIG Protest Rally in Washington, D.C, will take place at 11.00 A.M. on January 6th. Locational details to follow. StopTheSteal!"[27]

• Then on January 4th, Trump held a meeting with Eastman, Pence, Pence’s Chief of Staff, and the Vice-President’s Counsel. According to Pence’s notes from the time, Trump again repeated claims of fraud and ordered Pence to “reject or send to the states Biden's legitimate electoral votes, rather than count them.”

• When Trump and Eastman were getting nowhere, Pence’s notes say that Trump said, “bottom line, we won every state, by hundreds of thousands of votes,” and seemingly using that as further grounds for his orders, Trump and Eastman then “asked the Vice President to either unilaterally reject the legitimate electors from the seven targeted states, or send the question of which slate was legitimate to the targeted states' legislatures.”

• Pence again demurred, and asked Eastman whether this strategy was defensible. Eastman stated, “well, nobody’s tried it before.” Pence used this to try and highlight to Trump that “your own counsel is not saying that I have that authority.” Trump then replied, “that’s okay, I prefer the other suggestion.” Unbeknownst to Trump and Pence, Eastman had told a Trump campaign advisor that same day that no court would support his proposal, and that despite that, “there had previously been points in the nation’s history where violence was necessary to protect the republic.”[28]

• Again on January 5th, Trump forced another meeting on Pence with Eastman. This time, Eastman told Pence he should just unilaterally reject the contested electoral votes for Biden, though without Trump in the room, he conceded to Pence’s counsel that his scheme would never pass muster with the Supreme Court, and thus he was trying to avoid having it fall under judicial review.

• Later that day, Trump again tweeted out the false claim that Pence as Vice-President could unilaterally change the outcome of the election in the President’s favor, saying at 11:06AM that "The Vice President has the power to reject fraudulently chosen electors."

• This would not be the end of Trump’s pressure campaign on Pence, as we’ll see in a moment.

CATEGORY 5 – EVENTS LEADING UP TO AND ON JANUARY 6TH

• On December 19th, 2020, as part of a tweet highlighting a report White House official Peter Navarro had completed on election fraud, Trump stated “Big protect in D.C. on January 6th. Be there, will be wild!”

• He followed this up with another on January 1st, 2021, stating “The BIG Protest Rally in Washington, D.C. will take place at 11:00AM on January 6th. Locational details to follow. StoptheSteal!”[29]

• Then on January 5th, 2021, he tweeted the following[30]:

  • 11:06AM: “The Vice President has the power to reject fraudulently chosen electors.”

  • 4:05PM: “Washington is being inundated with people who don't want to see an election victory stolen by emboldened Radical Left Democrats. Our Country has had enough, they won't take it anymore! We hear you (and love you) from the Oval Office. MAKE AMERICA GREAT AGAIN!”

  • 4:12PM: “I hope the Democrats, and even more importantly, the weak and ineffective RINO section of the Republican Party, are looking at the thousands of people pouring into D.C. They won't stand for a landslide election victory to be stolen,”

  • 4:43PM: “I will be speaking at the SAVE AMERICA RALLY tomorrow on the Ellipse at 11AM Eastern. Arrive early — doors open at 7AM Eastern. BIG CROWDS!”

• After he sent these tweets, Trump’s giving a speech at all at the Capitol on January 6th was probably incendiary, but the overwhelming tenor and tone of his speech makes it hard to argue otherwise that his intent wasn’t to inflame the tensions in the crowd.

• The themes of the speech[31], which he hammered on over and over again, were: that the election was stolen, that you should be upset about it, and most importantly, that “we’re gathered together in the heart of our nation’s capital on one very, very basic and simple reason: to save our democracy.”

• Other comments from Trump’s speech on January 6th that appear incendiary include the following:

  • “This year they rigged an election. They rigged it like they've never rigged an election before.”

  • “All of us here today do not want to see our election victory stolen by emboldened radical-left Democrats, which is what they're doing. And stolen by the fake news media. That's what they've done and what they're doing. We will never give up, we will never concede. It doesn't happen. You don't concede when there's theft involved.”

  • “Our country has had enough. We will not take it anymore and that's what this is all about. And to use a favorite term that all of you people really came up with: We will stop the steal. Today I will lay out just some of the evidence proving that we won this election and we won it by a landslide. This was not a close election.”

  • “We will not let them silence your voices. We're not going to let it happen, I'm not going to let it happen.” Audience after that chants “Fight for Trump,” according to NPR.

  • “Now, it is up to Congress to confront this egregious assault on our democracy. And after this, we're going to walk down, and I'll be there with you, we're going to walk down, we're going to walk down. Anyone you want, but I think right here, we're going to walk down to the Capitol, and we're going to cheer on our brave senators and congressmen and women, and we're probably not going to be cheering so much for some of them. Because you'll never take back our country with weakness. You have to show strength and you have to be strong. We have come to demand that Congress do the right thing and only count the electors who have been lawfully slated, lawfully slated. I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.”

    • It’s worth noting here that Trump’s lawyers have argued that this last sentence is a key reminder that Trump wasn’t specifically advocating for violence, regardless of what else he said in the speech.

  • “But we've done it quickly and we were going to sit home and watch a big victory and everybody had us down for a victory. It was going to be great and now we're out here fighting”

  • “They also want to indoctrinate your children in school by teaching them things that aren't so. They want to indoctrinate your children. It's all part of the comprehensive assault on our democracy, and the American people are finally standing up and saying no. This crowd is, again, a testament to it.”

  • “Make no mistake, this election was stolen from you, from me and from the country.”

  • “The Republicans have to get tougher. You're not going to have a Republican Party if you don't get tougher. They want to play so straight. They want to play so, sir, yes, the United States. The Constitution doesn't allow me to send them back to the States. Well, I say, yes it does, because the Constitution says you have to protect our country and you have to protect our Constitution, and you can't vote on fraud. And fraud breaks up everything, doesn't it? When you catch somebody in a fraud, you're allowed to go by very different rules.”

  • “We won in a landslide. This was a landslide. They said it's not American to challenge the election. This the most corrupt election in the history, maybe of the world.”

  • “So today, in addition to challenging the certification of the election, I'm calling on Congress and the state legislatures to quickly pass sweeping election reforms, and you better do it before we have no country left. Today is not the end, it's just the beginning.”

  • “And we fight. We fight like hell. And if you don't fight like hell, you're not going to have a country anymore.”

  • “So we're going to, we're going to walk down Pennsylvania Avenue. I love Pennsylvania Avenue. And we're going to the Capitol, and we're going to try and give. The Democrats are hopeless — they never vote for anything. Not even one vote. But we're going to try and give our Republicans, the weak ones because the strong ones don't need any of our help. We're going to try and give them the kind of pride and boldness that they need to take back our country. So let's walk down Pennsylvania Avenue”

• This last comment apparently caught his security detail off-guard, as the plan was not for President Trump to go to the Capitol that day. According to one White House Security Official’s testimony to the January 6th Commission[32]:

White House Security Official: To be completely honest, we were all in a state of shock.

January 6th Committee Interviewer: Because why?

White House Security Official: Because one, I think the actual physical feasibility of doing it, and then also, we all knew what that implicated and what that meant, that this was no longer a rally, that this was going to move to something else, if he physically walked to the Capitol. I don’t know if you want to use the word insurrection, coup, whatever, we all knew that this would move from a normal, democratic, you know, public event, into something else.

January 6th Committee Interviewer: What was driving that sentiment considering this part of it, the actual breach of the Capitol hadn’t happened yet?

White House Security Official: Why were we alarmed?

January 6th Committee Interviewer: Right.

White House Security Official: The President wanted to lead tens of thousands of people to the Capitol. I think that was grounds enough to be alarmed.

• After Trump gave this speech, which concluded at 1:10PM, he told his Chief of Staff Mark Meadows that he wanted to go to the Capitol. Meadows told Trump that it was possible or likely that he would be able to go to the Capitol[33], but that Trump’s lead Secret Service agent, Bobby Engel, had more information.

• Engel subsequently told Trump that the Secret Service didn’t have the resources for that. Engel then said to the president, “we’re not going to the Capitol, we don’t have the assets to do it, it’s not secure, we’re going back to the West Wing.” Trump evidently got very angry, told Engel that he was the f*****g president and that he would go wherever he wanted to go. Engel responded “sir, we have to go back to the West Wing.”

• It was then that, according to Cassidy Hutchinson’s testimony[34]

The president reached up towards the front of the vehicle to grab at the steering wheel. Mr. Engel grabbed his arm, said, “Sir, you need to take your hand off the steering wheel. We're going back to the West Wing. We're not going to the Capitol.” Mr. Trump then used his free hand to lunge towards … Engel. And … when Mr. Ornato had recounted this story to me, he had motioned towards his clavicles

• Importantly, Hutchinson’s claims that Trump lunged towards Engel, essentially to choke him, has not been corroborated by anyone else. Hutchinson testified, however, that Bobby Engel was in the room when Tony Ornato, Deputy White House Chief of Staff relayed this story to Hutchinson

• What has been corroborated, however, was that there was a “heated exchange” in the “Beast” (the presidential motorcade) about the president “being adamant” about wanting to go to the Capitol. This was corroborated by “an unidentified former White House employee with national security responsibilities” and retired Seargeant Mark Robinson of the Washington DC Police Department.[35]

• Kaileigh McEnany’s (former White House Press Secretary) testimony also corroborated that Trump wanted to go to the Capitol and be a part of the march, either by foot, or in the presidential motorcade.[36]

o Whether Trump actually tried to grab the steering wheel in the Beast that day is really not all that important. What IS important is that multiple people have corroborated that a “heated exchange” of some kind took place in the presidential motorcade involving the president himself over whether or not to go to the Capitol. And even after they got back to the White House, McEnany’s testimony said he was still talking about going to the Capitol, which makes sense considering we know the presidential motorcade was held at the West Wing for 45 minutes while this was continuing to be discussed. All that matters is that it helps prove the president’s intent on going to lead an angry crowd that only minutes earlier he had incited himself, and that clearly had serious potential to do some unruly things, which of course is exactly what happened.

• After the motorcade went back to the White House, Trump was notified by “a White House employee” that the Capitol was under attack. This notification was within 15 minutes of ending his speech. The motorcade, meanwhile, was placed on standby for 45 minutes as debate ensued about whether President Trump could go to the Capitol or not.

• Trump promptly went into the West Wing dining room, where he proceeded to reside for the next two and a half hours, from 1:25PM to about 4PM. There is no official record of what Trump did during this period, except witnesses told the January 6th committee he was watching the news. There are no calls logged in the Presidential Call Log, nor are there any entries in the Presidential Daily Diary (which keeps track of the president’s activities). Additionally, the Chief White House photographer was explicitly told no photos.

• At 1:49PM, Trump tweeted a video of his speech earlier that day at the Ellipse, the same time that Washington D.C. police declared a riot at the Capitol.

• For the next two hours, person after person pleaded with Trump to put out a statement telling people to go home, including Ivanka Trump, to no avail.

• During this time, according to Hutchinson’s testimony, Chief of Staff Meadows and White House Counsel Pat Cipollone had some conversations that were instructive of conversations Meadows seemed to have had with Trump. First, after a riot had been initially declared, Cipollone came into Meadows’ office to ask him to speak to the president. Meadows, apparently not looking up from his phone, said “he doesn’t want to do anything Pat.” The two walked out of Meadows’ office, seemingly to go talk to the President. Prior to leaving his office with Cipollone, Hutchinson had told Meadows to call Rep. Jim Jordan, which he did but got no answer. After he left with Cipollone, he told Hutchinson to come get him if Rep. Jordan called back.

• Rep. Jordan called back around 2:15 – 2:25PM, and Hutchinson went into the Oval Office dining room to get Meadows and Cipollone. Overheard on the call were chants to “hang Mike Pence” from a group of people that had penetrated the Capitol (which happened about 2:13PM). A few minutes later, Hutchinson recalls, after the call with Rep. Jordan had ended, she overheard Cipollone and Meadows continuing to talk about the threats to Vice-President Pence, and she stated that Meadows said “you heard him Pat, he thinks Mike deserves it. He doesn’t think they’re doing anything wrong.” This clearly seems to infer that both men had talked to Trump about the threats to Pence’s life and that Trump had no inclination to do anything about it.[37]

• At 2:24PM, Trump tweeted “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution.” Pence had to be evacuated from the Capitol one minute later at 2:25.[38]

• At 2:38PM, Trump tweeted out “Please support our Capitol Police and Law Enforcement. They are truly on the side of our Country. Stay peaceful!"

• And again at 3:13PM: “I am asking for everyone at the U.S. Capitol to remain peaceful. No violence! Remember, WE are the Party of Law & Order Respect the Law and our great men and women in Blue. Thank you!"

• While this seems potentially exonerating of Trump, within this period Trump received countless requests to tell people to stop what they were doing on go home, only to refuse them all. Trump even received a call from future Republican Speaker of the House Kevin McCarthy around 3PM, telling Trump to call off his supporters. The president promptly refused his request, and evidently said “Well, Kevin I guess they’re just more upset about the election, you know, theft than you are.”

• Trump finally made his way out to the Rose Garden at 4:03PM, and at 4:17PM, finally tweeted out his video that said “We have to have peace, so go home. We love you. You’re very special. You’ve seen what happens. You see the way others are treated that are so bad and so evil. I know how you feel, but go home and go home in peace.”

• After Trump’s 4:17PM video tweet, he returned to the Oval Office and said "See, this is what happens when they try to steal an election. These people are angry. These people are really angry about it. This is what happens."[39]

• At 6:01 Trump tweeted “These are the things and events that happen when a sacred landslide election victory is so unceremoniously & viciously stripped away from great patriots who have been badly & unfairly treated for so long. Go home with love & in peace. Remember this day forever!"

• Trump then went back to calling US Senators to get them to slow down or stop the certification process

• The Senate and House of Representatives came back into session at 8:06PM and 9:02PM respectively and then in a Joint Session at 11:35PM. At 11:44PM, even after his boss (Trump) had put Pence’s life in danger, John Eastman emailed Vice-President Pence’s lawyer, saying “I implore you to consider one more relatively minor violation [of the ECA] and adjourn for 10 days to allow the legislatures to finish their investigations, as well as to allow a full forensic audit of the massive amount of illegal activity that has occurred here."

• Nothing came of that 11th hour request, and on January 7th at 3:41AM, Vice President Pence formally certified the results of the 2020 election in favor of Biden.

THE LEGAL QUESTION PART 3 – ARGUMENTS AGAINST TRUMP’S CULPABILITY & REBUTTALS

Aside from the suggested further reading below, a great place to go for a legal overview of Section 3 of the 14th Amendment is the recent podcast from the National Constitution Center, titled Is President Trump Disqualified from Office Under the 14th Amendment, published on August 31st, 2023[40]. Many of the arguments put forth below are from that podcast, but others are not, and are cited otherwise accordingly.

Argument #1: Defining rebellion or insurrection is difficult, and thus, implementing Section 3 will be controversial because a disqualifying determination is always going to be subjective.

Response: While it’s true that actually determining if “the specific facts of the case” constitute any of the disqualifying terms outlined in Section 3 is not as straightforward as say, determining if a person is old enough or not to run for president, this doesn’t mean we should treat Section 3 as a truly dead letter, never to be used or implemented at all due to its complexity or subjectiveness. At some point, we have to apply the facts of the case and see “if he did it or not.” Just because something is hard, or might be controversial, or might be at least partially subjective, doesn’t mean we shouldn’t do it if it’s the right thing to do. There are plenty of provisions in the constitution that are ambiguous or otherwise difficult to interpret, but we don’t just abstain from using them because their language isn’t absolutely crystal clear.

Argument #2: Disqualifying Trump will be viewed as politically motivated rather than done on the merits, and will consequently set a bad precedent for future elected officials to subjectively use Section 3 to disqualify candidates they don’t like.

Response: This is absolutely at least partially true. We need to be careful about criminalizing or disqualifying our political opponents just because we don’t like them. But here again, the facts of this particular case matter. A major part of the reason Trump likely felt emboldened to do what he did at all was because he (reasonably) sincerely believes that he “could stand in the middle of Fifth Avenue and shoot somebody, and I wouldn't lose any voters, OK.[41]” Because we’ve applied this kid gloves approach to Trump’s violations of the law for so long (simply because he’s such a green politician), we’ve become gun-shy about pursuing wrongful actions and deeds even when they are appropriate. While it’s easy to say that disqualifying Trump would be more of an exception than a new precedent that soon becomes a rule, there’s a good chance that employment of Section 3 in the future will be under similar circumstances, simply because most of the time, if someone isn’t popular, they aren’t running for president, and if they aren’t popular, they probably won’t be able to raise money and last long anyways. Thus, the system would weed them out before we even needed to think about using Section 3. Whether we decide to disqualify Trump under Section 3 or not, we should brace ourselves for a day when we’re forced to use Section 3 on someone who is fairly popular and who actually has a legitimate shot to win the presidency. We can either kick the can down the road, or pursue the case against Trump now when its appropriate.

Often forgotten in this debate too is that not pursuing disqualification here sets its own precedent, and that one—that you can foment an insurrection and subsequently still become president—is probably worse.

Argument #3: Section 3 does not specifically mention the president in its language, and thus may not apply to that office.

Response: This argument was put forth by Kim Strassel in the WSJ’s Potomac Watch podcast[42]. This argument is not a good one. By her logic, Congressional Republicans who passed the 14th Amendment in 1866 would not have had a problem with Robert E. Lee or Jefferson Davis becoming president of the United States in 1872 or 1876 once their respective states were back in the Union. That is absurd. While it is true the president isn’t specifically mentioned in the first part of Section 3’s language, the presidency is clearly covered in the “or hold any other office under the United States, or any state” language after that. It’s abundantly clear from even a cursory reading of the history that officials at the time were not just worried about someone like Lee or Jefferson Davis becoming a US Congressmen again. They were clearly worried about someone akin to them becoming president again someday too. Let’s not forget that a principal catalyst for the Civil War itself was the election of a president, that being Abraham Lincoln in 1860.

Academic historians back this up as well. NYU professor Daniel Hemel tells us[43] “the framers of the 14th Amendment clearly thought that Section 3 covered the president. Indeed, this issue came up during the floor debate, and Rep. Justin Morrill, a Vermont Republican and member of the House leadership, assured his colleagues that ‘office under the United States’ included the presidency.” Prof. Gerard Magliocca of Indiana, author of a fantastic paper on Section 3, reiterates this, stating that “Congress did not intend (nor would the public have understood) that Jefferson Davis could not be a Representative or a Senator but could be President.”[44] Furthermore, Mark Graber of Maryland, perhaps the foremost historian of the 14th amendment’s Section 3 clause, also states “Republicans in 1866 almost certainly thought the Section 3 bar on officeholding extended to the presidency and vice-presidency.” Additionally, he too highlights evidence from the congressional debates around the 14th amendment to substantiate this, stating:

No Republican made any statement that suggested a presidential exception to Section 3. Trumbull, as noted above, used the presidency when examining why changing qualifications was not a punishment. Stevens, also as noted above, used the presidency as well in discussing the Joint Committee’s draft Section 3. In the absence of any statement even hinting the contrary, no Republican could have believed that traitors should not become members of Congress, but ought to be allowed to be President of the United States.[45]

Thus, while it is admittedly strange that the presidency isn’t specifically called out in the listed offices in the first part of Section 3 (while something seemingly as trivial as electors to the Electoral College is), the presidency is absolutely covered by Section 3.

Argument #4: We shouldn’t use Section 3 to disqualify Trump because it was 1) directed towards the Confederate Army and 2) it hasn’t been used hardly at all since its inception. These two arguments were also put forth by Kim Strassel in Potomac Watch.

Response: First, Section 3 was not specifically addressed towards the Confederate Army, and if anything, it can reasonably be argued that it effectively carved them out[46]. While some confederate soldiers assuredly were former members of the military of the United States, given the abhorrence to standing armies in America at this time, the army was extremely small when war broke out (~15,000). Thus, few confederate soldiers would have been likely to have taken an oath to support the constitution prior to the Civil War, which is a clear requirement in Section 3’s text. Also worth noting is that during the debates around the 14th amendment, Radical Republicans fervently wanted to ban confederates from being able to vote in future federal elections entirely, but were ultimately convinced to drop this provision as part of a compromise with then President Andrew Johnson in favor of the disqualification from office text.

Second, it’s true that Section 3 hasn’t been used much since the Civil War (just one time, in 1919[47], when Victor Berger, founding member of the Socialist Party of America, was found guilty of violating the Espionage Act of 1917 and subsequently denied his seat by the House of Representatives). But just because Section 3 hasn’t been used often doesn’t mean it shouldn’t be used at all. Additionally, its lack of use implicitly proves another point, which is that it’s extremely rare that we have to have this conversation about whether someone committed insurrection, rebellion, or provided aid or comfort to the enemies of the United States in the first place—especially a former president. This is not the same thing as saying the CDC has authority to prevent landlords from evicting tenants because of an obscure provision in a 1945 law written for an entirely different purpose. Section 3 was written specifically for this purpose, and its dormancy is a reminder that what we’re dealing with is so rare. And again, its rareness should have no bearing on it being used and enforced.

Argument #5: The best precedent we have—the Griffin case—indicates that Congress needs to pass supplemental or implementation language for Section 3 to become operative.

Response: This argument too has some significant problems. The text of Section 3 makes no mention of any kind of prerequisite language in order to become operative, and if anything, is clearly intending something closer to the opposite in its open-endedness. Second, the entire reason Republicans wanted to put this text into a constitutional amendment in 1866 in the first place was to prevent Congress from being able to meddle with its implementation. If they had truly intended for Congress to play some kind of role in the operation and function of Section 3, 1) they probably would have said so in the text of the amendment itself and 2) they did not need to go to the trouble of trying to get the 2/3 votes required to pass Section 3 as part of a constitutional amendment. Section 3 was constitutionalized specifically because of the framers’ fears of what a later Congress might do to it when political conditions were different.

With respect to the Griffin case, we’ll spare the reader of a full analysis of that case. But for now, the Griffin case, authored by then Supreme Court Chief Justice Salmon P. Chase (President Lincoln’s former Secretary of the Treasury and presidential candidate), dealt with a black man who was convicted of an assault with intent to kill. Griffin (the defendant) brought a habeas corpus petition alleging his conviction was invalid because the judge presiding over the trial (to be clear, this was a jury trial overseen by a judge), was disqualified under Section 3, and the federal district court judge agreed. Upon appeal, however, Chase’s opinion in Griffin reversed that ruling, and stated that Section 3 must have supplemental guiding legislation from Congress to become operative, simply because its text by itself would have had wildly impractical effects on the country if it was interpreted as being self-operative alone. Are we really to throw the tens and maybe even hundreds of now illegitimate officials out of their roles in state government just like that? Should every act of every official who was at this time illegally holding their office today (but was not so yesterday) be deemed null and void, Chase asked? Chase thus took a practical approach to interpreting Section 3’s language, but arguably when the language does not call for that, let alone require it. Ironically enough, however, Chase’s stance against the self-enforcing view of Section 3 stands in direct contrast to the one that Chase himself took during Jefferson Davis’s Treason Trial a few years earlier. Thus, because of Chase’s debatable logic in Griffin, his own conflicting precedents with Section 3, his political ambitions, the fact that Griffin is not supreme court precedent (though Chase was Chief Justice of the Supreme Court at this time, he was presiding over this case as a circuit court justice as part of his supreme court duties to “ride circuit”), as well as Chase’s own personal animus towards Section 3[48], the Griffin case as the precedent stands on somewhat iffy ground.

There is one other thing to highlight with respect to the argument that Section 3 is not self-enforcing, and instead requires congressional legislation, and that is Section 5 of the 14th Amendment, which states that “The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.” This language exists in several other amendments to the Constitution as well (13, 14, 15, 19, 23, 24, and 27). The existence of this provisional authority, however, does not require that authority. It also just isn’t meant to be read that way. Take the 26th amendment for example. Section 1 says “The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.” Section 2 then states “The Congress shall have power to enforce this article by appropriate legislation.” Section 1 of that amendment is pretty clear, and Congress clearly does not have to pass a subsequent bill reiterating that people 18 years or older can vote in order for Section 1’s clause to be active. Thus, Section 5’s interpretation in the 14th amendment—just as with Section 2’s in the 26th Amendment—should be thought of more as an “if the law above is not followed, we (Congress) can figure out how to better enforce that language through additional legislation to make you obey.” Section 2 of the 26th Amendment and Section 5 of the 14th amendment are therefore no different, and do not give any more weight to Chase’s Griffin opinion (especially considering Chase himself did not cite this provision of the 14th amendment in the opinion anyway) or to the argument that Section 3 requires supplemental legislation to function.

Argument #6: The WSJ Editorial we cited earlier makes another commonly cited argument, which is that January 6th was not an insurrection but instead was a “riot,” something much more common. “The Jan. 6 rally on the Mall turned into a riot at the Capitol,” the Journal says, and “…there have been many riots in American history against U.S. policy that turned violent. The 1970s were rife with them, including bombings of government buildings.”

Response: It is one thing to call January 6th a riot, but the target or objective of the riot is important. Though you could argue both have political motives, a riot against the draft, like what we saw in New York City in 1863, is quite a bit different what we saw on January 6th, where a riot ensued where the crowd actually entered the Capitol building and were actively chanting “Hang Mike Pence!” The Journal itself stated in this editorial that this particular riot “was an obstruction of a federal proceeding—i.e., the counting of electoral votes.” Doesn’t that matter? Doesn’t a riot targeted at disrupting the certification of a presidential election immediately after the sitting president gives a speech advocating to protest that election differ from a riot over a shortage of bread? All riots are not created equal, either in size, scope or intention, and lumping all riots together as riots—even lumping all politically motivated riots together—without distinguishing specific aims or reasons for the riot, is disingenuous to the case. As the Journal argues above, the specific facts of the case need to be considered here, and this riot was an attempt to usurp (federal government) power. That is simply a different animal than the “many riots in American history against U.S. policy that turned violent.”

Argument #7: We shouldn’t entertain implementing Section 3 against Trump because it will be procedurally difficult, and not just because the definition of insurrection or rebellion is subjective.

Response: There’s no doubt some merit to this argument, but there are several paths as to how this would play out, all of which would likely end up with the case being decided in court. First, Secretaries of State generally have responsibility for determining the eligibility of presidential candidates on their states’ ballots. Though it’s not entirely similar, a Secretary of State looking at the evidence we laid out above and determining that Trump was not eligible for office under Section 3’s text would not be significantly different procedurally than when a Secretary of State determines that a candidate is too young to run, or isn’t born in the United States. A lawsuit would likely follow such a determination, but that doesn’t mean there aren’t already processes in place that give this potential measure some kind of procedural direction.

Additionally, a court in Florida that recently threw out a suit challenging Trump’s eligibility reminded us all of Quo Warranto lawsuits, which are a specific kind of suit with a specific kind of process to allow citizens and states to determine a person’s eligibility for a particular office[49]. Presumably if a Secretary of State didn’t want to be the one to remove Trump from the presidential ballot, these processes (which exist in most states) would be templates for how this might work procedurally otherwise.

Argument #8: The people should decide who the president is, not Secretaries of State or courts.

Response: The United States is a constitutional republic, and not an Athenian Democracy. Our constitution has many anti-democratic measures. Rightly or wrongly, “the people” do not have the authority to do whatever they want when the constitution says otherwise. Should we let people vote for someone who’s not 35 years of age for president too? There’s an anti-democratic restriction in the Constitution about that. Should the people be able to approve a suspension of the writ of habeas corpus if looks like the perpetrator is a bad guy who deserves it? There’s an anti-democratic restriction against that too. Similarly, should their right to be free from unwarranted searches and seizures be thrown out if the people so choose as well? You see where I’m going here. The logic of “we should let the people decide” ultimately leads you to the conclusion that we really don’t need a constitution at all, and that everything can and should be decided by the will of the people in that moment. Said differently, under the doctrine of democracy, every provision under the Constitution is in some way undemocratic. Does that mean we should abandon our constitution and republican roots then? I think not.

That being said, we shouldn’t forget that Section 3 does actually have a very pro-democratic provision within its text: the 2/3 congressional amnesty clause. If Trump ultimately gets removed from the ballot in some way, shape or form, and the country feels that strongly about it, Congress will feel the pressure and it can act accordingly by voting to remove Trump’s restriction from office.

Argument #9: Some of Trump’s lawyers have pointed to parts of Trump’s speech that advocated peaceful protest, and not violence. He specifically said in his speech (towards the very end) that “I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.” His tweets from 2:38PM and then at 3:13PM on January 6th, highlighted above, substantiate this too.

Response: Here Trump clearly has more ground to stand on. But it’s not clear how strong that ground really is, simply because Trump seemingly said both things. Sure, he doesn’t say explicitly to protest violently while he does explicitly say to protest peacefully, but he does still use pretty incendiary language multiple times (“fight like hell,” “when there’s fraud involved you play by different rules,” etc.). Thus, his actions and lack of actions are more important in this regard. If you say both things—to protest peacefully, as Trump did in several tweets, but also to “fight like hell”—and then sit back and do nothing for hours as violence unfolds, with almost everyone around you begging you to tell people to go home, it’s hard to claim your true intent was merely for peace when you had the chance to stop the chaos. His unwillingness to call off the rioters sends a conflicting but pretty clearly overriding message that those tweets calling for peace were merely pretexts, and not sincere attempts to get his supporters to stand down.

Argument #10: The text of Section 3 only seems to apply to someone holding office, not someone running for office, and thus, a court could defer to decide this case on the merits and throw it out on procedural grounds instead. This argument was put forth by Michael McConnell on the National Constitution Center podcast on this topic.

Response: This would be textualism-gone-mad, and to think that a judge would be so impractical as to actually let the toothpaste get this far out of the tube (especially with a presidential candidate) because they took as strict a view of the text as possible would be extremely surprising. Part of the problem with textualism is that laws cannot say everything and cover every possible circumstance at once, and while textualists often get annoyed at being called “Strict Constructionists,” this would be an exact example of that, and one that would likely cause a meaningfully worse situation later on when the case is re-tried once the candidate in question has actually won the election than if it were simply taken up at a more opportune time beforehand.

Argument #11: Couldn’t people still write-in Trump’s name on a ballot even if it was removed by a court or Secretary of State?

Response: Yes, in theory, but it would likely be subjected to litigation (again), and if a judge upheld the original removal form the ballot (presumably initial exclusion will be challenged in court), it seems likely they’d do so again in this circumstance.

CONCLUSION

Section 3 is not a criminal amendment. Section 3 of the 14th Amendment covers prospective, or future office holding eligibility only. Nothing more, nothing less. Consequently, Section 3 is not the same as an impeachment trial, and thus, the argument that “we already had this trial and Trump was acquitted” is not relevant. Impeachment deals with someone currently in office, not their ability to hold an office in the future. In a similar vein, the criminal indictments brought forth in New York, Georgia and Washington D.C. are also all separate questions, and therefore those legal questions are not particularly pertinent for this analysis either. Additionally, while many have pointed out that none of these criminal indictments have included charges of treason, rebellion or insurrection, this omission may not be as implicitly instructive as we might think, simply because a criminal proceeding must have its charges be proven beyond a reasonable doubt. It’s not just “did he do it or didn’t he,” but rather a much higher burden of proof. Furthermore, the questions around whether Trump did any of this knowing full well that he had lost the election—the prerequisite for perpetrating fraud—is again also not relevant here (though it seems fairly clear from the evidence he did know, in his heart of hearts, but just chose not to believe it, especially considering the statement he made to General Milley on January 3rd about a military situation being “for the next guy”). Thus, the 14th amendment question is just different, and ought to be evaluated on its own merits separately from these other legal processes, even if we do have Trump fatigue and don’t feel like doing this all over again.

The text of Section 3 also does not say who or who cannot enforce this amendment, nor does it say that this amendment is somehow superseded by state legislation or state courts. It also does not say that Congress needs to provide supplemental or enforcement legislation in order to be operative. Withholding a candidate from the presidency is also not without precedent. Even though he ended up winning, Abraham Lincoln was not on the ballot for president in ten southern states in the election of 1860, and that decision was made purely by local officials in those states. Republican John C. Fremont was also not on the ballot in southern states in 1856 either.

To state it again, the argument that we somehow shouldn’t use Section 3 because it’s been a “dead letter” makes little sense. There’s lots of provisions in the Constitution that aren’t used frequently, or, in the case of amendments, ever. For instance, we haven’t had to use the 22nd amendment to prevent a president from running for a third term in office since it was passed in 1951, but if President Obama had tried to run again in 2016 because he thought he needed to save the country from Donald Trump, does anyone seriously think we would have just decided to ignore that law then and allowed him to run? Ironically enough, it was another little used presidential qualification requirement that was brought up during President Obama’s re-election campaign—the requirement that you be born in the United States—and by none other than future President Trump. While President Obama ultimately produced his birth certificate, the fact that we haven’t had to use Section 3 since the Civil War implicitly acknowledges just how rare of a situation this is. We don’t see this frequently because we don’t see insurrection or rebellion in the United States frequently, especially from a former president. Just because they’re sometimes old and dusty doesn’t mean you don’t enforce the laws. Section 3 is just such a law, and it should be used accordingly.

More importantly, whether it falls under the category of insurrection, rebellion, or giving “aid or comfort to the enemies of the United States”, Trump’s conduct following the 2020 presidential election pretty squarely falls within one of these categories of Section 3’s disqualifying language. Those buckets of language may very well be looked at as a Venn diagram, with Trump’s conduct falling somewhere within the overlapping circles. For purposes of him being disqualified under Section 3, where it falls does not matter. Section 3’s language does not require all of them to be true. Any of the relevant categories of breach are disqualifying. As Baude and Paulsen note, “Indeed, the bigger picture point for understanding Section Three is that ‘insurrection’ and ‘rebellion’ in tandem, cover pretty much the entire terrain of large-scale unlawful resistance to government authority.” Trump was trying to effect a coup d’état, and while you can argue his conduct does or does not fall within one area or the other, in no universe does a coup d’état not fall within one of these disqualifying terms. If Jefferson Davis or anyone else in 1860 or 1864 would have tried to subvert the results of the election to prevent Lincoln from becoming president, there shouldn’t be a doubt in anyone’s minds it would have been looked at as some version of a coup. The same goes if it was Richard Nixon in 1960 or Al Gore in 2000, both of whom lost in very close elections, and the latter of which resulted in the intervention of the US Supreme Court.

In this case, Trump:

A) actively and personally tried to intervene in states’ electoral procedures to disrupt, and potentially reverse, the results of the 2020 election

B) actively and personally participated in a scheme to put forth false elector slates for the purpose of disrupting the certification of the election

C) tried to get his Department of Justice to declare fraud in the election, without the evidence to support it, and also to get the DOJ to overturn the election results themselves. When Trump couldn’t get senior leadership to do so, he threatened to remove them, and only backed off when resignation threats from almost the entire DOJ senior leadership team were threatened

D) tried to actively and personally persuade Vice-President Mike Pence to not count legitimate electoral votes, reject legitimate electoral votes, or otherwise unilaterally change the election in Trump’s favor

E) encouraged people to show up to the Capitol on the day of the certification process to protest it, telling them “it will be wild,” and then subsequently used the incensed crowd he created to put additional pressure on Vice President Pence to not count certain electoral votes

F) after he saw violence transpiring at the capitol—violence predicated on “saving our democracy” by disrupting the electoral certification—he sat back and did nothing for several hours. More importantly, several witnesses’ testimony make it clear that Trump himself wanted to go to the Capitol that day, and was irate when he was turned down. His attempted personal participation here after the crowd was already incensed--and after he was personally informed that they were armed--is among the strongest evidence we have that he was trying to effect a coup.

Whether or not one or more of these items is true really doesn’t matter. Any of them are probably substantive enough to constitute subversion equating to a coup. The fact that all of these things transpired collectively makes this almost irrefutable. Importantly, because Trump himself was making calls to Secretaries of State, making speeches, tweeting about election fraud, doing interviews, etc. Trump himself was clearly “taking part in” or “doing something,” the definitions of “engaging in” something that we laid out earlier. Thus, if a coup is covered by insurrection or rebellion, and Trump’s actions constitute him “engaging in” that attempted coup, then he should be disqualified under Section 3.

If this is the case, then the argument that “the people should decide” should not be the governing rule here. The people cannot decide everything. That is why we have a constitution. Certain things are too important, and that’s why they’re codified into a constitutional provision and not merely made a law. Because Section 3 of the 14th Amendment is a constitutional provision, keeping Trump on the ballot should be treated no differently than if we were asking if the people should be allowed to vote for him as president if he were 32 years old (you have to be 35 to be president). It’s also not clear that we need any guidance from any court as to enforcing this provision. That might make it more orderly, but it’s not clear that is required. Consequently, recent lawsuits about whether an individual citizen has standing or not to remove someone from the ballot using Section 3’s grounds are probably correct on procedural grounds only. Once Quo Warranto writs are done on a broader scale, this will probably become more evident.

All this being said, we can’t forget the other side of the coin here, which is the precedent this will set. The framers did not want political persecution by the government to be easy or common. This is why even in the Treason Clause, they state treason “shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.” The fact that there have been so few treason trials in the United States, even in obvious cases like Aaron Burr, is also telling. This is not something we should want to deal with very often. But this does not mean we should never deal with it just because its messy. Additionally, as we mentioned earlier, not pursuing disqualification for Trump in this instance sets its own precedent, and one which is arguably just as problematic as the one created by trying to disqualify him.

This situation feels destined for the Supreme Court, but hopefully they don’t make this situation more complicated than it is. In final analysis, under any reasonable interpretation of insurrection, rebellion, or giving aid or comfort to the enemies of the United States, attempts to subvert a presidential election by a sitting president to keep himself in power should be considered insurrection against the government. As we’ve laid out about, this is exactly what Trump tried to do, and thus, he ought to be disqualified from the presidency under Section 3 of the 14th Amendment as a result.

Further Reading:

Baude, William and Paulsen, Michael Stokes, The Sweep and Force of Section Three (August 9, 2023). University of Pennsylvania Law Review, Vol. 172, Forthcoming , Available at SSRN: https://ssrn.com/abstract=4532751

Myles S. Lynch, Disloyalty & Disqualification: Reconstructing Section 3 of the Fourteenth Amendment, 30 Wm. & Mary Bill Rts. J. 153 (2021), https://scholarship.law.wm.edu/wmborj/vol30/iss1/5

Magliocca, G. N. (2021). AMNESTY AND SECTION THREE OF THE FOURTEENTH AMENDMENT. https://doi.org/https://conservancy.umn.edu/bitstream/handle/11299/221946/02%20Magliocca.pdf Disloyalty & Disqualification

Magliocca, Gerard N., Background as Foreground: Section Three of the Fourteenth Amendment and January 6th (December 21, 2022). Available at SSRN: https://ssrn.com/abstract=4306094 or http://dx.doi.org/10.2139/ssrn.4306094

[1] The Sweep and Force of Section Three, William Baude, University of Chicago Law School, Michael Stokes Paulsen, University of St. Thomas Law School; University of Pennsylvania Law Review, Vol 172; August 14th 2023; https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4532751 [2] The 14th Amendment Trump Panic, WSJ Editorial Board, September 4th, 2023 [3] See A Compromise of Principle, Michael Benedict, pages 182-187. [4] The Treason Clause, found in Article 3, Section 3, of the Constitution, states “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the testimony of two Witnesses to the same overt Act, or on Confession in open Court.” Notice the similar text around enemies and giving them aid or comfort in the Treason clause and in Section 3 of the 14th amendment. [5] See A Compromise of Principle, Benedict. [6] See Baude, Paulsen, page 68. [7] The requirement of Section 3 that culpable officials had to have previously taken an oath to protect the Constitution is evidence that rebellion and insurrection are a cousin to treason. [8] Both the entire report and its components can be found here: https://www.govinfo.gov/app/details/GPO-J6-REPORT/context [9] https://www.justice.gov/storage/US_v_Trump_23_cr_257.pdf [10] See link to full indictment here: https://www.pbs.org/newshour/politics/read-the-full-georgia-indictment-against-trump-and-18-allies [11] See Smith indictment, pages 10-11 unless otherwise cited [12] See Trump calls Georgia governor to pressure him for help overturning Biden’s win in the state, Washington Post, December 5th, 2020. https://www.washingtonpost.com/politics/trump-kemp-call-georgia/2020/12/05/fd8d677c-3721-11eb-8d38-6aea1adb3839_story.html [13] See Smith indictment, pages 15-16 [14] All of the evidence here comes from the Smith Indictment, pages 17-19 [15] See Smith indictment, pages 19-20 [16] https://www.presidency.ucsb.edu/documents/tweets-december-21-2020 [17] See Jack Smith Indictment, page 23 [18] See Jack Smith Indictment, pages 23-24 [19] See Jack Smith indictment, page 24 [20] See Jack Smith Indictment, pages 24-25 [21] See Jack Smith Indcitment, page 25 [22] See Jack Smith Indictment, page [23] See Jack Smith indictment, page 26 [24] See Jack Smith indictment, page 26 [25] See Jack Smith Indictment, page 27 [26] See Jack Smith Indictment, pages 27-31 [27] See Jack Smith Indictment, page 33 [28] See Jack Smith indictment, page 34-35 [29] https://www.presidency.ucsb.edu/documents/tweets-january-5-2021 [30] https://www.presidency.ucsb.edu/documents/tweets-january-5-2021. [31] See transcript of President Trump’s speech to the crowd on January 6th, 2021. https://www.npr.org/2021/02/10/966396848/read-trumps-jan-6-speech-a-key-part-of-impeachment-trial [32] See early part of the video here. https://www.cbsnews.com/video/retired-sergeant-trump-motorcade-jan-6/ [33] https://www.lawfaremedia.org/article/evaluating-jan-6-committees-evidence-full [34] Hutchinson was an assistant to Trump’s Chief of Staff, Mark Meadows. Her full testimony can be seen here: https://www.youtube.com/watch?v=HeQNV-aQ_jU&t=3423s [35] Part of Robinson’s testimony can be found here: https://www.youtube.com/watch?v=pbRVqWbHGuo&t=1770s [36] https://www.youtube.com/watch?v=HeQNV-aQ_jU&t=3423s. See 59:30 mark. [37] https://www.lawfaremedia.org/article/evaluating-jan-6-committees-evidence-full [38] See Jack Smith Indictment, page 40 [39] See Jack Smith Indictment, Page 41 [40] Is President Trump Disqualified from Office Under the 14th Amendment? Podcast from the National Constitution Center, August 31st, 2023. https://constitutioncenter.org/news-debate/podcasts/is-president-trump-disqualified-from-office-under-the-14th-amendment [41] https://www.npr.org/sections/thetwo-way/2016/01/23/464129029/donald-trump-i-could-shoot-somebody-and-i-wouldnt-lose-any-voters [42] Does the 14th Amendment Disqualify Donald Trump? WSJ Podcasts, Opinion: Potomac Watch. https://www.wsj.com/podcasts/opinion-potomac-watch/does-the-14th-amendment-disqualify-donald-trump/94f9cd05-4e55-498a-945b-115d3307c7f9 [43] https://www.lawfaremedia.org/article/disqualifying-insurrectionists-and-rebels-how-guide [44] Magliocca, Gerard N., Amnesty and Section Three of the Fourteenth Amendment (December 14, 2020). 36 Constitutional Commentary 87 (2021)., Available at SSRN: https://ssrn.com/abstract=3748639 or http://dx.doi.org/10.2139/ssrn.3748639 [45] https://www.justsecurity.org/74739/their-fourteenth-amendment-section-3-and-ours/ [46] [46] See National Constitutional Center podcast highlighted above, and Mark Graber’s comments about this issue. [47] The case of Burger is a fascinating one in its own rights, and detractors of using Section 3 against Trump reasonably point to Burger’s case as a cautionary tale, but the fact that it was used arguably inappropriately, one time, in the 150 years it’s existed, doesn’t mean we should never use it. See https://en.wikipedia.org/wiki/Victor_L._Berger for an overview. [48] See National Constitutional Center podcast and Graber’s comments on this issue as well. Chase hated Section 3 and was generally in favor of a much broader “universal” amnesty. See also https://www.justsecurity.org/74739/their-fourteenth-amendment-section-3-and-ours/ and https://www.historynet.com/salmon-p-chase-book-review/ [49] See https://www.law.cornell.edu/wex/quo_warranto