But Trump isn’t the first politician to face that question — and not even the first since the Jan. 6, 2021 attack on Congress.
In fact, at least seven other Republicans, from local officials to members of Congress, have faced similar legal challenges over allegations that they participated in or aided an insurrection after the 2020 election. The 14th Amendment disqualifies anyone who, despite having sworn an oath to defend the U.S. Constitution, “shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”
Six current and former House members, including Rep. Marjorie Taylor Greene (R-Ga.) and former Rep. Madison Cawthorn (R-N.C.), have faced 14th Amendment challenges based on their actions leading up to Jan. 6.
In one 2022 case, the 156-year-old law cost a former county commissioner his ability to serve in any state or federal elected position — the first time in over 100 years the law had been used to that effect.
The legal wrangling in these cases, even the ones that were unsuccessful, helps shine some light on the arguments against Trump, and the questions the Supreme Court will have to answer as it determines whether the Colorado Supreme Court was correct in ruling that Trump cannot run for office.
It’s unlikely that a majority of the justices will decide to kick Trump off the presidential ballot this year, given the monumental historical stakes and the rightward tilt of the Court.
Still, some conservatives have come to believe that the amendment should in fact disqualify Trump. In an influentialarticle first released last year, legal scholars William Baude and Michael Stokes Paulsen argued that not only is the 14th Amendment’s disqualification language applicable today, but also that it is enforceable by both courts and election officials nationwide — and covers a broad range of activities, including Trump’s actions.
Past Challenges Have Shaped Arguments Over Trump
The challenge to Couy Griffin was the most dramatic of those attempted so far. The former Otero County, New Mexico commissioner is the first politician to be disqualified from holding office due to violating Section 3 of the 14th Amendment since 1869.
The relevant amendment text says that:
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.
Griffin, who posted a video of himself on the Capitol steps on Jan. 6 and was convicted for trespassing on Capitol grounds, was barred for life from holding elected state or federal positions, “effective immediately,” New Mexico District Court Judge Francis J. Mathew ruled in a civil case.
Notably, Mathew described Jan. 6 as an “insurrection against the Constitution” that fell within the scope of Section 3.
The civil suit against Griffin was led by New Mexico residents represented by the group Citizens for Responsibility and Ethics in Washington, or CREW. CREW also represented the plaintiffs behind the Colorado challenge that, for now, has disqualified Trump.
“This just went from being theoretical to being something that is legally recognized and legally possible,” CREW’s executive director, Noah Bookbinder, said after Mathew’s decision. (Trump’s lawyers, meanwhile, have argued that “the events of January 6, 2021, were not ‘insurrection’ as that term is used in Section 3.”)
The allegations against Griffin pale in comparison to those faced by many Jan. 6 defendants: He was never accused of entering the Capitol building on Jan. 6 or even personally using violence. Rather, in his earlier federal criminal trial in Washington, D.C., he faced two misdemeanor charges: illegally entering or remaining on restricted grounds, and disorderly conduct. After a two-day bench trial, Judge Trevor McFadden, a Trump appointee, found Griffin guilty on the first charge — and noted the “grave tension” between the county commissioner’s actions and his oath to the Constitution.
Trump, for his part, faces four felony charges in the federal case over his effort to overturn the election, and 13 more felony charges for the same effort in the state of Georgia.
The cases against Cawthorn and Greene, even though neither succeeded in forcing the lawmakers to leave office, could also carry legal implications for Trump.
Just over two years ago, a group of North Carolina voters represented by the group Free Speech for People challenged Cawthorn’s eligibility as a candidate, arguing in their complaint, “Challengers have reasonable suspicion that Representative Cawthorn was involved in efforts to intimidate Congress and the Vice President into rejecting valid electoral votes and subvert the essential constitutional function of an orderly and peaceful transition of power.” (Free Speech for People also unsuccessfully challenged the candidacies of Arizona Reps. Andy Biggs and Paul Gosar, and State Rep. Mark Finchem; they were rebuffed by a state judge who found they didn’t have grounds to sue.)
The North Carolina plaintiffs noted that Cawthorn promoted the Jan. 6 demonstration ahead of time, spoke at the event, accused Democrats of “trying to silence your voice,” and repeatedly used language like “it’s time to fight!” and “this crowd has some fight!” A couple weeks before the event, Cawthorn encouraged supporters to “lightly threaten” their representatives. (After the mob of Trump supporters overwhelmed police and began attacking the Capitol building on Jan. 6, Cawthorn wrote on Twitter, “The battle is on the house floor, not in the streets of D.C.”)
Cawthorn’s lawyers argued that because two-thirds of Congress voted after the Civil War to grant amnesty to former Confederates, the congressman was also protected.
“There’s nothing in the Amnesty Act that says it’s only applicable to the Civil War,” Cawthorn’s attorney at the time, James Bopp Jr., said of the 1872 law.
The Fourth Circuit Court of Appeals disagreed with that argument.
“The available evidence suggests that the Congress that enacted the 1872 Amnesty Act was, understandably, laser-focused on the then-pressing problems posed by the hordes of former Confederates seeking forgiveness,” Toby Heytens, one judge on a three-judge panel that overruled a lower court’s decision agreeing with Bopp, wrote. Heytens added later that the Amnesty Act “did not prospectively immunize Representative Cawthorn — or anyone else — from Section 3’s reach.”
There’s no saying how Cawthorn’s court battle would have ended: The decision came a few days after he lost his primary fight to another Republican, current Rep. Chuck Edwards (R-N.C.) . But the failure of the Amnesty Act defense in Cawthorn’s case dented what might otherwise have been a key argument in Trump’s favor; Trump’s team has never attempted to raise Cawthorn’s defense and say the Amnesty Act shields Trump from a Section 3 suit.
“That decision [in Cawthorn’s case] pretty much killed off that argument,” Gerard Magliocca, an Indiana University law professor who specializes in the 14th Amendment, told HuffPost.
Former Rep. Madison Cawthorn (R-N.C.) is seen on July 26, 2022.
The challenge to Greene’s candidacy was less successful, but it still provides key context for Trump’s case.
In that case, a Georgia administrative law judge, deciding on a challenge from voters made to Secretary of State Brad Raffensperger’s office, ruled that “the evidence does not show Rep. Greene engaged in months of planning and plotting to bring about the Invasion and defeat the orderly transfer of power provided for in our Constitution,” and that while Greene encouraged efforts to prevent the certification of Joe Biden’s election win, rhetoric like “our 1776” did not constitute a “call to arms for consummation of a pre-planned violent revolution.” Raffensperger adopted the decision and Greene was allowed to run for re-election.
Still, the case bore important fruit — and was cited in a key ruling against Trump.
For one thing, the case moved Greene herself to personally testify, in the first Section 3 trial in 150 years, for three hours on the question of whether she was an insurrectionist and therefore disqualified from holding office. It made for a moment that Adam Unikowsky, a seasoned Supreme Court litigator at Jenner & Block LLP, called “particularly incredible.”
More significantly for Trump’s case, both Greene and Cawthorn argued that Article I of the Constitution — “Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members” — precluded courts from weighing in on their cases, an argument that was met with mixed reaction from judges.
On Thursday, 179 Republican members of Congress, including the GOP leaders of both chambers, filed an amicus brief with the Supreme Court attempting to extend this argument to the presidency. It cited a concurrence in Cawthorn’s case to emphasize Congress’s role in judging the qualifications of its members, and to argue that the Colorado Supreme Court shouldn’t have weighed in on Trump’s eligibility as a candidate.
“Although not directly relevant to President Trump, the Colorado Supreme Court would give itself the power to judge the qualifications of those who would be elected to the House or Senate,” the members wrote.
Though no similar language applies to the presidency,Trump’s lawyers have argued a similar point, saying that questions of his eligibility to run have been improperly handled by lower courts, when they should have been left to Congress.
In their request that the Supreme Court take up his case, for example, Trump’s lawyers’ argued, “Considering the Constitutional role for Congress in addressing presidential qualifications, It is little surprise that every court except Colorado that has addressed the political question doctrine when presented with the question of determining President Trump’s eligibility has held that question is nonjusticiable and reserved to Congress.” (The “political question doctrine” is the notion that courts should not weigh in on political questions even if they otherwise have jurisdiction to do so.)
Respondents in the case — a group of Coloradans who successfully sought Trump’s disqualification at the the Colorado Supreme Court — said that the claim from Trump lawyers was “false.” With one exception, they wrote, “no appellate court has addressed the question and two have expressly declined to reach it.”
Magliocca said that Trump’s argument — that questions of presidential eligibility should be left to Congress — was even weaker than Cawthorn and Greene’s attempt at making the same point. He pointed out that if Congress refuses to seat a specific representative because they’ve engaged in insurrection, the body can still function despite the vacancy: Congress deals with individual vacancies regularly. But it would be unprecedented if Congress were to rule Trump ineligible after he’d won the election, and potentially tumultuous.
“You’re just inviting a whole lot of chaos,” Magliocca said. “I think that’s going to be a very unappealing option for the Court.”
Trump’s legal team also cited both Greene and Cawthorn’s legal fights as examples of other cases that “raised questions surrounding the application of Section 3 of the Fourteenth Amendment.”
The Colorado Supreme Court’s majority did as well — but as part of the legal reasoning behind its decision finding Trump was disqualified from holding office. Trump’s lawyers had argued the case against him there wasn’t eligible to be litigated under state election law. But the Colorado high court found that Section 3 was the “functional equivalent of a qualification for office,” like age or residency requirements, and therefore fair game for the state to look into.
More Challenges Could Depend On Trump Case
Trump nevertheless faces pretty good odds at the high court. Unikowsky, the Supreme Court litigator, estimated there was a 20% chance the Supreme Court would disqualify Trump — “totally within the realm of possibility,” but not likely.
Still, should the court shock the nation and disqualify Trump, the knock-on effects would be substantial. Not only would Trump be out of the picture, but other challenges to candidates with Jan. 6 ties could become much more realistic.
Take Rep. Scott Perry, the Pennsylvania Republican who, court records show, was intricately involved in the behind-the-scenes effort to overturn the 2020 election results.
A local activist named Gene Stilp recently filed a Section 3 challenge against Perry, asking that a statecourt find Section 3 applied to the congressman, “thus eliminating Scott Perry from the ballot for representative to Congress.”
Stilp, known for colorfulstunts like his frequent Trump flag burnings and a protest with an inflatable pig (meant to skewer Republican election audit efforts), acknowledged to HuffPost that his case was “by no means a slam dunk.” But he said that even uncovering new information about Perry’s activities would mark a success.
“We have to hold their feet to the fire,” Stilp said. “They can’t just slip back into the shadows and hide there. We have to bring the bright sunlight of day onto them and hold them accountable. That’s what this case is about, holding Scott Perry accountable for his previous actions. People have to realize that we can’t let these folks get away with it.”
Perry’s campaign, for its part, dismissed the challenge as a sideshow. Perry campaign spokesperson Matt Beynon told HuffPost in an email it was “a frivolous lawsuit filed by a fringe activist whose claim to fame is an inflatable pink pig.”
Stilp, who said he used some money from First Amendment lawsuits over his flag-burning demonstrations to fund the suit, wasn’t so sure. After all, he said, Trump’s case could change the legal reality of Stilp’s own fight.
“Who knows how the Supreme Court might end up slicing the pie?”