LAST MONTH, A LAWSUIT was filed in state court in Colorado by something called the Citizens for Responsibility and Ethics in Washington on behalf of six G.O.P. and unaffiliated voters in Colorado. The group includes former federal, state, and local officials who believe (erroneously, IMO) that 45th President Donald Trump is disqualified from running for president pursuant to the so-called ‘disqualification clause’ in Sec. 3 of 14th Amendment to the Constitution, due to his alleged actions in the events of 1/6/21 at the Capitol.
The Amendment’s Sec. 3 is a Civil War-era prohibition of any American holding elected office who has “engaged in insurrection or rebellion against the United States.” Put into historical context, it was devised in response to trouble-making Confederates returning to Congress after Reconstruction with the intent to subvert the new government. It reads in its entirety:
“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.”
At different times in history, Congress exercised its discretion to remove disabilities, or issue amnesties, with respect to certain individuals, but in 1872, the disabilities were removed from all persons except a very narrow subset, inapplicable here. Twenty-six years later, Congress removed the disability in its entirety, which explains its non-use in more recent years.
Trump attorneys and others intervened, seeking a dismissal of the case, which was denied, here. Trump’s arguments in opposition to the application of Sec. 3 appear to be that issues of ballot eligibility are limited to Congress, not courts; and that state election officials cannot invoke Sec. 3 of the 14th Amendment. Judge Sarah Wallace has rejected both arguments. The case was tried this week and testimony concluded Friday. (Closing arguments are set for Nov. 15th.)
If the clause is found applicable by Judge Wallace, as many commentators expect given her highly partisan background, it likely means Trump’s name will not appear on Colorado’s 2024 ballot, unless a higher court overrules her decision. This would take time, longer than Trump has between now and the primaries.
Of enormous significance is Trump hasn’t been charged or convicted of ‘insurrection’ by anyone, including his latest partisan nemesis, Special Counsel Jack Smith. Instead, they conflate his Stop the Steal speech to multiple thousands who appeared at the Capitol that day with ‘insurrection,’ and ignore his calls for them all to “peacefully and patriotically” march to the Capitol to have their voices heard prior to lawmakers certifying the presidential election in favor of Biden.
It has been argued that a finding of ‘rebellion or insurrection’ under 18 U.S.C. § 2383 or any other federal criminal statute isn’t necessary because Sec. 3 isn’t a criminal penalty, but rather, a qualification for public office that can be enforced through civil lawsuits in state courts, among other methods. This is nothing short of preposterous. ‘Rebellion or insurrection’ are clearly terms of art that have meaning beyond the biased whims or partisan fantasies of random state officials who could, under such a scenario, just as easily justify their own non-finding of ‘rebellion or insurrection’ when there was one. Without a statutory framework, the scheme makes no sense.
Sec. 3 obviously doesn’t impose a criminal penalty. It is not a criminal statute, after all. If it was, strict due process rights would attach, which clearly haven’t been here, but it need not be in order to afford protections to an office-seeker. 18 U.S.C. §2383 or other such statutes concerning ‘rebellion or insurrection’ are used by prosecutors as criminal causes of action against anyone—not office-seekers, per se. It reads:
“Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.”
Furthermore, civil rights remedies under 18 U.S.C. §1983 would have to be available to an office-seeker who has been ‘disabled’ through a civil or other unspecified proceeding, which hasn’t been here, either. Government cannot simply strip away an American’s right to run for public office without at least some amount of due process which, minimally, would require a showing that the ‘disability’ applies to him in the first instance. Nor can the government deny an office-seeker’s right to run by running out the clock in some feigned process, unless an applicable statute says it can, and if it does, it is a statute that is almost positively unconstitutional on its face. This doesn’t address voters’ rights, either.
There is additionally a school of thought that “…any office under the United States…” in Sec. 3 means appointed positions in the Executive, Judicial, and Legislative Branches, not elected federal positions, i.e., the President, Vice President, and members of Congress. While there appears to be a historical basis for this conclusion, both in terms of its legislative history and in practice, the first argument above is, IMO, the stronger, however, here is an in-depth and compelling legal discussion about the latter, here. (It was also expertly testified to at trial.)
Also of note are the facts surrounding Dems’ denial of Trump administration requests to deploy the National Guard in advance of that fateful day. Trump administration official, Kash Patel, testified about this on Thursday, just as he did before the Jan. 6th Committee over a year ago, and how that inconvenient fact has been conveniently brushed under the rug repeatedly. Specifically, the request for 10,000-20,000 was denied by then-Speaker of the House Nancy Pelosi (D-Calif.) and D.C. Mayor, Muriel Bowser (D), who were both officially in charge of such security measures at the Capitol. (Eventually, there is likely to be significant findings of Capitol Police and/or F.B.I. incompetence, or in the alternative, use by either or both of agents provocateurs, but I digress…See e.g., here, here, and here.)
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Thankfully, one challenge concluded favorably for Trump in New Hampshire last week. Judge Joseph Laplante of the U.S. District Court for the District of New Hampshire denied a similar challenge in the First-in-the-Nation primary state, brought by a John Anthony Castro, a purported attorney from Texas with two law degrees but no bar membership anywhere. He was also an Enrolled Agent, but was suspended by the I.R.S. He ran for political office in Texas—both as a Democrat and Republican. He has, as the Manchester Union Leader put it, “a spotty record.”
When he lost his original case in NH for lack of standing (here), it appears he signed up to run in the G.O.P. primary there himself so he could manufacture standing to sue the secretary of state David Scanlan and Trump in an effort to deny Trump access to the ballot. On Monday, Judge Laplante found the court lacked jurisdiction because Castro lacked standing, but even if this was not an issue, Castro’s was a nonjudiciable political question (i.e., not for the courts to decide) and the case was dismissed once and for a grateful all.
The NH Decision is a well-reasoned digest of relevant law on this matter that one would hope other jurisdictions will use as a model. Takeaways include the conclusion that “the vast weight of authority has held that the Constitution commits to Congress and the electors the responsibility of determining matters of candidates’ qualifications,” and as such, “…Trump’s eligibility as a presidential candidate under Section 3 of the Fourteenth Amendment—raises a nonjudiciable political question.”
Castro has been aggressively engaging in a personal crusade of lawfare against Trump in multiple courts, including U.S. District Court for the District of Columbia (dismissed), U.S. District Court for the Southern District of Florida (dismissed), the Court of Appeals for the 11th Circuit, and United States Supreme Court (writ of certiorari denied) among many others, including contested, swing, or early primary states such as Arizona, Georgia, Utah, Nevada, Pennsylvania, Wisconsin, South Carolina. All in all, Castro has filed at least 27 lawsuits seeking to keep Trump’s name off the ballot in multiple states in what he has admitted in testimony is ‘guerrilla lawfare.’ And just in case he gets a case to the Supreme Court, he’s already drafted a demand that Justice Clarence Thomas recuse himself, for some reason or no reason at all, who knows?
Still, other states have similar cases docketed for trial. As the Colorado case was concluding on Friday, Minnesota’s commenced. Michigan has a case coming up soon, too. These might be considered what was once called ‘nuisance suits,’ but Castro seeks no pecuniary damages from Trump or the states. It is, indeed, extremely hostile and political lawfare. Castro files his Complaints pro se, and he makes the same argument which can be cut and pasted to the standard federal court format, but there are travel expenses and opportunity costs which add up.
One has to wonder who is truly funding it all, given Castro himself is reportedly being sued by Amex for nonpayment of about $54,000.
sua sponte 
