No conviction needed to bar Trump from the ballot
Ex-president's involvement in Jan. 6 insurrection is quite clear
THE CONSTITUTION’S Fourteenth Amendment says that anyone who took an oath to support the Constitution of the United States, but then “engaged in insurrection or rebellion against the same,” is forever disqualified from public office. What does this mean for Donald Trump after the January 6, 2021 insurrection?
If Trump chooses to run for president in 2024, then secretaries of state or other chief elections officials must decide whether he’s constitutionally eligible to appear on state ballots. As US Supreme Court Justice Neil Gorsuch has confirmed, states have the constitutional authority to exclude candidates for federal office from their ballots who don’t meet the constitutional qualifications. And the insurrectionist disqualification clause is part of the Constitution.
The evidence of Trump’s involvement in the January 6 insurrection is clear. After his plans to seize voting machines were thwarted, he planned the “wild” pre-attack demonstration for that morning; ordered security personnel to remove magnetometers so that gun-carrying extremists could better position themselves; whipped the bloodthirsty crowd into a frenzy; instructed them to march to the Capitol so they could stop Congress from certifying the results of the presidential election; egged them on once they’d overtaken the building intending to capture and execute Vice President Mike Pence; and deliberately refused to take any action whatsoever to impede their rampage.
That meets the longstanding legal test for whether someone “engaged” in insurrection under the Fourteenth Amendment. Under the prevailing Worthy-Powell standard, established by two Reconstruction-era court cases, “engage” means to make “a voluntary effort to assist the Insurrection . . . and to bring it to a successful [from insurrectionists’ perspective] termination.” It includes “[v]oluntarily aiding the [insurrection] by personal service, or by contributions, other than charitable, of anything that was useful or necessary.”
Notice what isn’t part of that definition: proof that the individual personally engaged in acts of violence. Furthermore, as a Georgia judge acknowledged this spring, “[n]or does ‘engagement’ require previous conviction of a criminal offense.”
That’s an important point that even some public officials, like Massachusetts Secretary of State William Galvin, misunderstand. Galvin recently stated that he can’t act unless the Department of Justice convicts Trump of a crime.
While prosecutors should indeed charge Trump with crimes for his efforts to illegally maintain power, Galvin’s idea would have horrified the drafters of the Fourteenth Amendment. As Massachusetts schoolchildren learn, Reconstruction featured major clashes between the Republican Congress, which wanted to prevent another insurrection, and President Andrew Johnson, who wanted to forgive and forget. Before the amendment was even drafted, and to widespread outrage, in 1865 Johnson pardoned most ex-Confederates. That’s why the Insurrectionist Disqualification Clause authorizes Congress, not the president, to grant political amnesty to disqualified insurrectionists. In fact, in 1868, Johnson pardoned all other ex-Confederates—including ex-Confederate president Jefferson Davis. So if a criminal conviction was a predicate to disqualification, nobodywould have been disqualified.
But both before and after Johnson’s blanket pardon, officials were routinely deemed disqualified despite never having been charged with, let alone convicted of, any crime. In fact, the vast majority of Confederates disqualified under the Insurrectionist Disqualification Clause—well over 17,000—were never charged with any crimes whatsoever.
Consider Kenneth Worthy, of the landmark Worthy decision. Nobody suggested that Worthy committed any criminal offense. Rather, he’d served as county sheriff under the Confederacy. After his re-election to the same office in 1868, the county commissioners refused to seat him, citing the Insurrectionist Disqualification Clause. The court agreed, and concluded that he’d “engaged” in insurrection because he’d voluntarily provided “personal service” that was “useful or necessary” to the rebellion. In short: disqualification without criminal charges.
Rather than pass the buck to Merrick Garland, secretaries of state or other chief election officials can review the publicly available evidence and make their own determinations. (Our organization, Free Speech For People—which filed the first judicial challenges under the Insurrectionist Disqualification Clause since Reconstruction—has provided a model declaration for this purpose.) State officials have, as Justice Gorsuch emphasized, independent constitutional authority to exclude ineligible candidates from the ballot. Nothing in the text, history, or judicial interpretation of the Fourteenth Amendment says they must wait for prosecutors, who work in a different area of law with a different goal—punishment, not protection of the republic.
Of course, Trump is entitled to his day in court; after he’s excluded from a state ballot, he can sue to challenge that decision. But criminal prosecution is irrelevant. Secretaries of State have sworn their own oaths to support and protect the Constitution. And just as the disgraced Jefferson Davis was barred from office for life, the Constitution demands that—to protect the republic—the disgraced ex-president Trump must never be allowed to hold power again.
Ron Fein is the legal director of Free Speech For People. Ben Clements is a former federal prosecutor, former chief legal counsel to the governor of Massachusetts, and chairman and senior legal advisor of Free Speech for People.