The case for Donald Trump’s disqualification under the 14th Amendment

On January 20, 2017, Donald Trump took the oath of office, swearing to “preserve, protect and defend the Constitution of the United States.” Almost four years to the day after taking that oath, on January 6, 2021, Trump caused a violent insurrection that nearly overthrew an election and shattered our democracy.

The attack on the Capitol was not a spontaneous event. It was the culmination of a multi-part scheme by Trump and his allies to use lies, intimidation, coercion and ultimately violence to keep Trump in office. By leading these unprecedented efforts to subvert the Constitution and American democracy, Trump disqualified himself under Section 3 of the Fourteenth Amendment from holding any federal or state office, including the presidency. 

Section 3 of the Fourteenth Amendment was adopted after the Civil War as a mechanism to protect American democracy from those disloyal to the Constitution. It bars from office any person who swore an “oath … to support the Constitution of the United States” as a federal or state officer and then “engaged in insurrection or rebellion against the same,” unless Congress removes the disqualification by a two-thirds vote of each house.

As CREW lays out in our new report, there is overwhelming evidence that Trump not only engaged in the January 6th insurrection, but was its central cause:

• Trump spread knowingly false claims of a “stolen” and “rigged” election — even after he exhausted legal challenges, the states certified his loss, and there was no lawful basis to contest the election results. 
• Trump’s lie that the election was stolen propelled the “Stop the Steal” movement, which tried to exert pressure on Vice President Mike Pence and Congress to unlawfully refuse to certify the presidential election results on January 6th. 
• Trump personally led an effort to pressure, coerce, and intimidate government officials — including Pence, state election officials, and Department of Justice officials — to help him unlawfully overturn the election results.
• Through social media and grassroots Stop the Steal mobilizers, Trump summoned a violent mob of tens of thousands of his supporters–including now-convicted seditionists and members of extremist groups such as the Oath Keepers and the Proud Boys — to travel to Washington, D.C. for a “wild” protest on January 6th. 
• Once his mob was assembled on January 6th, Trump incited them to “fight like hell” to overturn the election results by marching to the Capitol to “stop the steal,” knowing that many were armed, adorned in tactical gear, and prepared for violence. 
• After learning the Capitol was under attack, Trump poured fuel on the fire, targeting Pence for lacking the “courage” to overturn the election in a tweet that measurably caused the mob to surge. 
• Trump failed to act for nearly three hours as his mob ransacked the United States Capitol, brutally assaulted police officers, and called for the murder of elected officials. He failed to deploy a federal response to protect the United States Capitol or call off his mob despite his constitutional duty to “take care that the laws be faithfully executed” and his role as Commander-in-Chief of the U.S. military, including the D.C. National Guard. 
• Instead of intervening to defend the Capitol, Trump tried to enlist members of Congress to deliver on the mob’s goal to delay the election certification. 

Like other constitutional qualifications based on age, residency, and citizenship, Section 3 is enforceable through civil lawsuits challenging a candidate’s eligibility to hold office. And courts have disqualified individuals under Section 3 who played far less substantial roles in insurrections than Trump. Couy Griffin, a former New Mexico county commissioner who was a grassroots mobilizer for a “battle” to stop the certification process and a member of Trump’s mob on January 6th, was disqualified after CREW successfully represented New Mexico residents in a lawsuit to enforce his constitutional disqualification. During Reconstruction, officials who previously held local government positions in Confederate states were also adjudicated to be disqualified. The 14th Amendment does not require a criminal conviction for disqualification, and many who were disqualified were not found guilty of any crimes.

If their conduct passed the bar for constitutional disqualification, then Trump’s conduct surely does. Bipartisan majorities in both chambers of Congress have found Trump responsible for inciting the insurrection, as have nine federal judges.

Disqualifying anyone for engaging in insurrection is a very serious step, and no one should take lightly the thought of banning someone from the ballot. But the risk of a repeat or escalation of January 6th poses such an existential threat to our democracy that it demands enforcement of all available legal mechanisms to prevent it, including Section 3 of the Fourteenth Amendment 

Overwhelming evidence establishes that Donald Trump was the central cause of and a participant in the January 6th insurrection. Because of that, Trump is disqualified from holding any public office, including the Office of the President, under Section 3 of the Fourteenth Amendment.