What It Will Take To Enforce The Disqualification Clause Against Donald Trump

TOPSHOT - US President Donald Trump speaks to members of the media upon arrival at Phoenix Sky Harbor International Airport in Phoenix, Arizona on October 19, 2020. Trump is heading to Prescott, Arizona for a campaig... TOPSHOT - US President Donald Trump speaks to members of the media upon arrival at Phoenix Sky Harbor International Airport in Phoenix, Arizona on October 19, 2020. Trump is heading to Prescott, Arizona for a campaign rally. - US President Donald Trump went after top government scientist Anthony Fauci in a call with campaign staffers on October 19, 2020, suggesting the hugely respected and popular doctor was an "idiot." (Photo by MANDEL NGAN / AFP) (Photo by MANDEL NGAN/AFP via Getty Images) MORE LESS
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Burgeoning attempts to disqualify Donald Trump from the ballot under the 14th Amendment’s Disqualification Clause have been met with everything from ridicule to giddiness. 

A flurry of new attention for Section 3 of the 14th Amendment was sparked by two prominent conservative legal scholars making a studied and considered argument  that Trump’s effort to overturn the 2020 election disqualifies him from office. The ensuing public debate has veered from treating the Disqualifications Clause as ironclad salvation to dismissing it as a “fantasy.” Lawfare’s Roger Parloff described Trump being disqualified as “disquieting” for the “violence it might unleash among his followers and the chaos it could bring to the 2024 presidential election.”

Those invoking the Disqualification Clause say it should be treated like any other criteria for disqualification — age, citizenship, residency. It’s a constitutional provision, they argue, one which should be respected and enforced, particularly when it comes to insurrection.

Its critics howl that the move is anti-democratic and undermines the will of Republican voters who, reflected in every poll, want Trump to represent them by huge majorities. 

But for the primary groups behind the effort to disqualify Trump ahead of 2024 — good government groups CREW and Free Speech for People — this isn’t an academic exercise or a heated online debate. It’s a mission and a plan, one they’ve formed with the benefit of experience. They’ve already taken this argument to court — and in one momentous decision in this very small universe of cases, notched a victory.  

Victory in New Mexico

In the shining case on a hill, CREW successfully got an elected official disqualified from holding his office. 

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

In searing, evocative details, the challengers tracked Griffin’s movement on Jan. 6 (in addition to the days before), capturing him galloping around the Capitol grounds to boost his comrades with shouts of “this is civil fucking war!” While the outnumbered police sprayed the crowd with tear gas and pepper spray, Griffin covered his mouth, gleefully saying “I love the smell of napalm in the air,” per court documents.  

Griffin was ultimately convicted for entering and remaining on restricted grounds. But, importantly, he did not join in any of the violence against Capitol police officers — and the judge still found him to be disqualified. 

“One need not personally commit acts of violence to engage in insurrection,” Mathew wrote, adding: “Engagement thus can include non-violent overt acts or words in furtherance of insurrection.” 

Critically, especially given how few cases have tested the bounds of the Disqualifications Clause, Mathew also made clear that Griffin’s conviction was not a necessary prerequisite to his disqualification. 

“Section Three imposes a qualification for public office, much like an age or residency requirement,” he wrote. “It is not a criminal penalty, and neither the courts nor Congress have ever required a prior criminal conviction for a person to be disqualified under Section Three.” 

That case has been the most encouraging yet to the groups behind the push to disqualify Trump. 

“It’s beyond the pale to believe someone who was the prime mover of this event wasn’t disqualified if a foot soldier was,” Nikhel Sus, CREW’s director of strategic litigation, told TPM.

Losses Elsewhere

But most of the attempts to use Section 3 have so far been unsuccessful. 

FSFP led an attempt in Arizona to disqualify Rep. Paul Gosar (R-AZ), Rep. Andy Biggs (R-AZ) and former Republican Secretary of State nominee Mark Finchem due to their roles in Jan. 6.  

The Arizona Supreme Court affirmed the Maricopa County Superior Court judges’ granting of the officials’ motion to dismiss. The lower court had found that a) Congress must pass a law to create an enforcement mechanism for the Disqualification Clause and b) “the Constitution reserves the determination of the qualifications of members of Congress exclusively to the U.S. House of Representatives.” The state Supreme Court avoided deciding those questions.

Arizona attorney Jim Barton, one of the lawyers representing the challengers, finds the second conclusion in particular to be “peculiar,” pointing to the myriad other ways that the state of Arizona polices who gets on the ballot — including disqualifying people who owe outstanding fines to the secretary of state. 

But fundamentally, he said that the courts didn’t take the challenges seriously. 

“They treated it like a publicity stunt,” he told TPM.  

They also wouldn’t allow the challengers’ team to present evidence, making it much more difficult to prove the extent of the three men’s involvement in Jan. 6 and its lead-up. 

A similar story played out when the group tried to disqualify Rep. Marjorie Taylor Greene (R-GA). The challengers were blocked from collecting evidence they wanted to get, and a judge ultimately found that there wasn’t enough proof that Greene had participated in an insurrection. 

“He did not allow the challengers to get any kind of discovery from, say, her emails or texts or any documents, that sort of thing,” Gerard Magliocca, an Indiana University law professor who specializes in the Disqualification Clause and testified during Greene’s case, told TPM. “If you make it hard to prove the case, it’s easier to say the case wasn’t proven.” 

Robert Orr, a former Republican North Carolina state Supreme Court justice, worked with FSFP to disqualify former Rep. Madison Cawthorn (R-NC), who spoke at Trump’s rally on the Ellipse on the morning of Jan. 6. 

The effort to remove Cawthorn from the 2022 ballot was rendered moot after his re-election campaign went down in a bizarre and scandalous fashion. But, Orr said, even that attempt chipped away at one defense which some Trump defenders have put forward: that the 1872 Confederate amnesty applied to future insurrectionists, rendering the 14th Amendment impossible to enforce. 

Cawthorn used that argument until a 4th Circuit Court of Appeals panel dismissed it.

Both the Cawthorn and Greene cases revived interest in two Reconstruction-era court decisions which tested the Disqualification Clause. In Greene’s case, the court upheld the standard created in an 1871 appellate case — U.S. vs. Powell — which found that for disqualification, petitioners had to prove that a target took an oath of office, that whatever took place qualified as an insurrection and that the target engaged in the insurrection. 

Orr described going into the North Carolina state archives to review an 1869 decision from a state case, Worthy v. Barrett, which established a similar standard, one that he then tried to bring to bear against Cawthorn. 

He made a broader case for using the 14th Amendment in the wake of 2021. Engaging in an insurrection is such a profoundly destructive act against the American state, Orr said, that it should be disqualifying.

“People need to take a step back from the fact that Trump is the issue,” he said. 

“If somebody is engaged in an insurrection, if next week Lindsey Graham starts firing cannons at Fort Sumter, is that disqualifying?” Orr asked, rhetorically. 

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

Correction: The original version of this article said that the Arizona Supreme Court affirmed the lower court in the post-Jan. 6 disqualification cases. It upheld its granting of the motions to dismiss, but avoided ruling on the major constitutional questions.

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