Aug. 2, 2023 (SFChronicle.com)
The Constitution’s 14th Amendment permanently bars any government official from public office who has taken part in, or given “aid and comfort to,” any “insurrection or rebellion” against the United States. Could this be applied to former President Donald Trump, whose indictment this week accused him of obstructing an official proceeding — the certification of the 2020 election — by encouraging the mob that stormed the U.S. Capitol?
There’s no consensus, in part because the situation is unprecedented, and the constitutional language is less than explicit. While the federal grand jury charged Trump with trying to interfere with the vote tally, it did not expressly accuse him of inciting an insurrection. Even if he is convicted, his appeals may still be pending on Election Day. And the divided Congress may have a role to play.
But an attorney for an advocacy group that is planning legal action to bar Trump from the ballot in a number of states says a recent case in New Mexico shows that the former president has already done enough to disqualify him, as a matter of law, from seeking or holding any federal or state office.
Couy Griffin was removed as a commissioner in Otero County, N.M., and barred from seeking future office by a state judge in September after being convicted of a federal misdemeanor for entering the Capitol during the riot on Jan. 6, 2021. Griffin, co-founder of a group called Cowboys for Trump, aided in the attempted insurrection by “joining the mob and trespassing on restricted Capitol grounds,” said Francis Mathew, a judge in the state’s First Judicial District.
Griffin’s case shows that no federal insurrection charge or congressional vote is needed to prohibit Trump from running for president, said Donald Sherman, executive vice president and chief counsel at Citizens for Responsibility and Ethics in Washington, or CREW, which filed the case against Griffin. He said a half-dozen former Confederate officials were disqualified from office in similar cases after the Civil War.
“The indictment is further proof of what the Jan. 6 (congressional) committee laid out and what we saw with our own eyes and ears: that Donald Trump incited and engaged in an insurrection against the Constitution of the United States by trying to overturn a free and fair election,” Sherman told The Chronicle.
He said CREW plans to file suits soon in several states seeking to bar Trump, the current Republican front-runner, from their presidential ballot next year. Sherman declined to identify the states, but other groups held demonstrations last month outside election offices in California, Georgia, Colorado and Oregon.
A contrasting view came from Edward Foley, a constitutional law professor and director of the Election Law program at Ohio State University.
The wording of the 14th Amendment, Foley said, shows that only those who are convicted of a specific federal crime — engaging in, inciting or aiding “any rebellion or insurrection against the authority of the United States or the laws thereof,” as defined by Section 2383 of the law — can be disqualified from office.
Although, as Foley noted, Tuesday’s indictment accused Trump of conspiring to deprive voters of their rights and interfering with the legal process for counting votes, he was not charged with violating Section 2383.
Some commentators saw the law differently. Marjorie Cohn, a former professor at Thomas Jefferson School of Law in San Diego and former president of the left-leaning National Lawyers Guild, said the final decision would most likely be up to Congress, not the courts.
“I believe that the most recent indictment of Trump does allege that he engaged in ‘insurrection’ — an effort to keep the duly elected government from taking office,” Cohn said. But it would still take “a majority of both houses” to invoke the 14th Amendment against the former president, she said, and “that is unlikely to happen in the current Congress.”
From a more conservative perspective, Michael McConnell, a Stanford law professor and former federal appeals court judge, said he saw nothing in Trump’s latest indictment that referred to insurrection or rebellion.
Nevertheless, “I would not be surprised if advocates were able to persuade election officials in one or more states to try to bar him from the ballot,” McConnell said. “Such a move would presumably be appealed quickly to the Supreme Court.’’
Erwin Chemerinsky, the law school dean at UC Berkeley and a liberal scholar who has argued cases before the Supreme Court, said the outlook is unclear because the 14th Amendment “does not define rebellion or insurrection.”
“I believe that the most recent indictment of Trump does allege that he engaged in ‘insurrection’ — an effort to keep the duly elected government from taking office,” Chemerinsky said. “And I do expect that there will be efforts, by CREW and others, to keep Trump off the ballot. I think that if Trump is convicted, these are much more likely to succeed.”
Reach Bob Egelko: begelko@sfchronicle.com; Twitter: @BobEgelko
Written By Bob Egelko
Bob Egelko has been a reporter since June 1970. He spent 30 years with the Associated Press, covering news, politics and occasionally sports in Los Angeles, San Diego and Sacramento, and legal affairs in San Francisco from 1984 onward. He worked for the San Francisco Examiner for five months in 2000, then joined The Chronicle in November 2000.
His beat includes state and federal courts in California, the Supreme Court and the State Bar. He has a law degree from McGeorge School of Law in Sacramento and is a member of the bar. Coverage has included the passage of Proposition 13 in 1978, the appointment of Rose Bird to the state Supreme Court and her removal by the voters, the death penalty in California and the battles over gay rights and same-sex marriage.
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