Washington, DC – The growing list of criminal charges against Donald Trump does not prevent the former United States president from seeking the White House in 2024.
But some activists and legal scholars are looking to a provision in the 14th Amendment of the US Constitution to bar Trump from holding public office ever again.
Ratified in 1868 after the US Civil War, the 14th Amendment is mostly known for ensuring equal protection under the law.
But it also includes a seldom-used “disqualification clause” — formally known as Section Three — which can be enforced to bar current and former officials from public office if they “engaged in insurrection or rebellion”.
Critics say Section Three’s language should make Trump ineligible to run for president, as his efforts to overturn the 2020 presidential election are tantamount to an insurrection.
Their push has raised legal, political and practical questions about the applicability and possible enforcement of Section Three, particularly as Trump leads the race for the Republican presidential nomination in 2024.
Here’s all you need to know.
What is the 14th Amendment?
An amendment is a change to the Constitution — known as “the law of the land” — that then becomes part of the document.
Tom Ginsburg, a professor of international law and political science at the University of Chicago, said the 14th Amendment was ratified after the Civil War to “deal with various aspects of the conflict”.
The Civil War started in 1861, when southern states seceded from the Union and formed the Confederacy, primarily to preserve slavery.
Ginsburg said the 14th Amendment advances racial justice by ensuring equality under the law and extending the constitutional order and the protections it provides to the states.
What is Section Three about?
Section Three also relates to the Civil War. It originally aimed to prevent former Confederate leaders from holding public office after rebelling against the US government.
It disqualifies people who took an oath to support the Constitution but then “engaged in insurrection or rebellion against the same” or gave “aid or comfort to the enemies thereof”.
Does it apply in a modern context?
Yes. Although Section Three originally sought to limit the influence of former Confederate officials, legal scholars say it is a general statute that remains applicable.
Kimberly Wehle, a law professor at the University of Baltimore, said Section Three is “broadly worded”: It is not specific to Confederates, nor does it mention them by name.
“The theory behind Section Three is that it’s really a problem to have people in office who are committed to dismantling the current government. The spirit of Section Three seems to apply in 2023,” Wehle told Al Jazeera.
What is an insurrection?
The Merriam-Webster dictionary defines insurrection as “an act or instance of revolting against civil authority or an established government”.
The US Constitution, however, offers no explicit guidelines on what exactly constitutes an insurrection.
“It’s not — for constitutional purposes — clearly defined,” University of Chicago’s Ginsburg said. “To my mind, it involves significant acts of violence that are directed at important governmental operations.”
Why is the Disqualification Clause gaining attention now?
With Trump comfortably leading the race for the Republican nomination, advocates and law experts have invoked the 14th Amendment to push for his disqualification from the 2024 elections.
Discussions around the amendment have been picking up steam in recent weeks.
On Wednesday, Citizens for Responsibility and Ethics in Washington (CREW), a group that promotes government accountability, filed a lawsuit in a Colorado state court on behalf of six voters to remove Trump’s name from the ballot in any future election.
And in August, a lawyer in Florida also filed a legal complaint in federal court to stop Trump from running.
Earlier that same month, two renowned conservative law professors also said that they had concluded in a forthcoming scholarly paper that Trump cannot seek public office over his “participation in the attempted overthrow of the 2020 presidential election”.
Before Donald Trump has a chance to spread lies about the 14th Amendment, here are the facts: pic.twitter.com/lU4hdMHiGb
— Citizens for Ethics (@CREWcrew) September 7, 2023
What has Trump done to be accused of insurrection?
After his loss in the 2020 election to President Joe Biden, Trump falsely claimed that the vote was swayed by widespread election fraud.
From there, he tried to convince the US Department of Justice and various state officials to intervene on his behalf. He also urged then-Vice President Mike Pence to use his ceremonial role overseeing the Electoral College vote count to overturn the election.
On the day of that vote count — January 6, 2021 — a mob of Trump supporters stormed the US Capitol in an effort to stop the certification.
Wehle, the University of Baltimore law professor, quoted the congressional committee that investigated the Capitol riot, saying that Trump’s “multi-faceted, multi-tiered efforts to thwart the election” amounted to insurrection.
She also cited the violence at the Capitol and Trump’s attacks on election workers. With the “amount of trauma and damage” that Trump has caused, it is clear that he engaged in insurrection, she said.
What has Trump said?
Trump has denounced efforts to use the 14th Amendment as “another trick” by Democrats to derail his 2024 campaign.
“Almost all legal scholars have voiced opinions that the 14th Amendment has no legal basis or standing relative to the upcoming 2024 Presidential Election,” Trump wrote in a social media post earlier this week.
Trump is facing four indictments — including two sets of charges over his efforts to overturn the 2020 elections — but legal experts say the criminal cases do not directly relate to whether the 14th Amendment can be applied. After all, defendants can still run for president even if they are convicted and jailed.
Who can enforce Section Three?
This is where things get tricky for those who want to disqualify Trump: Section Three does not spell out how it should be enforced, meaning it is not clear who would ban candidates from office.
Theoretically, top state election officials could reject Trump’s application to be on the ballot in the same way they would disqualify someone who does not meet other requirements, according to Ginsburg.
But he added that the issue is complex.
“It’s not as simple as saying someone is 25 years old and is therefore disqualified. This language requires interpretation. What’s ‘an insurrection’? What’s ‘aid and comfort to the enemies’?”
Moreover, Trump’s campaign is likely to sue if he is removed from the ballot, raising the possibility of widespread court battles.
In the case of Wednesday’s lawsuit, the government accountability group CREW hopes to block the Colorado secretary of state “from taking any action that would allow” Trump to access the ballot.
Has Section Three been applied before?
Throughout history, Section Three has been applied against sitting and former officials fewer than 10 times — mostly in the immediate aftermath of the Civil War.
But there is a recent precedent.
Last year, a New Mexico judge used the 14th Amendment to order the removal of then-Otero County Commissioner Couy Griffin for participating in the January 6 riot.
New Mexico has a so-called “quo warranto” law that allows private citizens to file legal complaints to assess whether an official is constitutionally authorised to hold public office. Not all states have such laws.
Earlier in 2022, a judge in Georgia ruled in favour of Congresswoman Marjorie Taylor Greene, a right-wing Trump ally, after a lawsuit aimed to ban her from seeking reelection under the 14th Amendment.
What have state election officials said?
At least two secretaries of state have said they would not unilaterally keep Trump off the ballot.
Arizona’s Adrian Fontes cited a state supreme court ruling that he said bars him from enforcing Section Three.
Georgia’s Brad Raffensperger said it should be the people who decide whether to elect Trump or not. “Denying voters the opportunity to choose is fundamentally un-American,” he wrote in a Wall Street Journal column this week.
For her part, Colorado Secretary of State Jena Griswold said she will keep an eye on the recent lawsuit in the state, adding that the legal case could provide guidance to election officials.
“This is an unprecedented situation. We’ve never had a president incite an insurrection and attack our democracy like this,” Griswold told Politico.