Trump’s insurrection should disqualify him for office

Constitutional provision designed to prevent Confederate soldiers from resuming office after war

IT IS INDEED ironic that Donald J. Trump, who entered politics with his disreputable efforts to disqualify Barack Obama from the presidency by ludicrously claiming that he was born in Kenya, and then challenging Ted Cruz’s nomination because he was Canadian born (albeit to an American citizen mother), has seemingly dodged his own disqualification as the leader of an insurrection.

Section 3 of the Fourteenth Amendment, intended to keep former Confederate officials from resuming government office following the Civil War, provides:

“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.”

Donald Trump is just such a person. Like Jefferson Davis, who served in the Senate and as Secretary of War during Franklin Pierce’s administration before he betrayed his country to lead the Confederacy, Trump spent months — if not years — planning, preparing, and finally inciting the violent insurrection on January 6, 2021.

Unfortunately, Special Counsel for the United States Department of Justice Jack Smith delicately dances around the traitorous events of that horrible day in a four-count indictment charging fraud and obstruction of Congress, in conjunction with the violation of the Ku Klux Klan Act for seeking to disenfranchise voters of color. The indictment never uses the words “insurrection” or “sedition” or “treason.” It’s like telling the story of Noah, but excluding the part about the flood. 

Legal commentators have praised this as clever strategy and pragmatism — foreseeing a leaner and swifter trial with a conclusion before the 2024 election. But what is the cost of excluding the most heinous and historically consequential part of the story? Future presidents, including Trump himself, may find comfort in knowing that a failed coup will be treated like a stock fraud case, instead of an attempted overthrow of our government.

The disqualification clause was used against rebels after the Civil War; a Socialist congressman who was outspoken against American entry in World War I; and, most recently, a New Mexico county commissioner who participated in the January 6 mob. Donald Trump should be added to this short list for the sake of his own just punishment and humiliation, but more importantly to state clearly for the record that such disloyal conduct has rendered him unfit for public office.

Trump dodged this fate in the Mueller investigation and in two impeachments. The opportunity to rid our politics of him should not be neglected again.

Mark S. Brodin is the Michael & Helen Lee Distinguished Scholar and former associate dean for academic affairs at Boston College Law School.