Trump Wouldn't Be the First Non-Confederate Barred From Office by the 14th Amendment
The weird story of Victor Berger, the Espionage Act, and "Shoeless" Joe Jackson.
Last week's ruling by the Colorado Supreme Court that former President Donald Trump is ineligible to hold federal office under the terms of the 14th Amendment is a nearly unprecedented situation.
Nearly.
Per Section 3 of that constitutional amendment, passed in the wake of the Civil War, former elected officials guilty of having engaged "in insurrection or rebellion against" the federal government are forbidden from holding office. It is obviously a provision meant to keep former Confederates from returning to Congress after the war, but the Colorado Supreme Court has determined that Trump's role in instigating the January 6, 2021, riot at the U.S. Capitol meets the vague standards outlined set forth in the amendment. On Thursday, Maine Secretary of State Shanna Bellows announced that Trump would be removed from the state's primary ballot because he is ineligible for office under the terms outlined in the 14th Amendment.
Since the end of Reconstruction, Trump is just the second person ruled ineligible for federal office due to that provision.
The first: Victor Berger, who is perhaps slightly more well known for being the first Socialist elected to Congress.
Berger was born in Austria and immigrated to the United States as a young man. In 1910, he won a seat in Congress representing Milwaukee, Wisconsin, and served a single two-year term. After being defeated in 1912, Berger remained active in left-wing politics and opposed America's entry into the First World War. In 1918, he was convicted (along with several other Socialist organizers) of having violated the Espionage Act of 1917, which effectively criminalized any criticism of the war effort.
Officially, Berger was found guilty of 26 "disloyal acts" related to a series of editorials published by the Milwaukee Leader, a paper Berger helped run, arguing against America's involvement in the war.
Despite that conviction—or perhaps because of it—Berger was elected to Congress again in 1918. His campaign called for the country to respect free speech and freedom of the press, and he continued to push for an "early, general, lasting and democratic peace." (Naturally, he also campaigned for a variety of typically terrible Socialist ideas too, like the nationalization of industries.)
Here's where Section 3 of the 14th Amendment popped up. Congress refused to seat Berger when he showed up to work in January 1919, on the grounds that his Espionage Act conviction was tantamount to engaging in insurrection against the country. The vote was nearly unanimous, 311-1, with the lone dissenting vote cast by a Wisconsin Republican.
A special election was held in December 1919 to fill the still-vacant seat, and Berger won again—this time earning even more votes than he had a year earlier. Again, a majority in Congress voted to block Berger from taking his seat.
There was yet another twist to come, and a final bit of trivia embedded in all this: The federal district judge who had overseen Berger's Espionage Act trial was Judge Kenesaw Mountain Landis.
Baseball fans may recall Landis' involvement in another (arguably more famous) decision. After leaving the federal bench in 1920, Landis was hired as the first commissioner of Major League Baseball and charged by the teams' owners with investigating allegations of match-fixing in the 1919 World Series scandal. Though the players involved in the scandal were acquitted in court, Landis exercised his own discretion as commissioner to impose a lifetime ban on eight players—including Chicago White Sox superstar "Shoeless" Joe Jackson.
Landis was known for being ill-tempered and prejudiced, particularly against German immigrants. According to a brief filed with the U.S. Supreme Court seeking to overturn Berger's conviction, Landis once said "If anybody has said anything worse about the Germans than I have, I would like to know it so I can use it."
During Berger's trial, Landis was openly hostile. He declared that Germans "are reeking with disloyalty" and condemned all pacifists as having "the interests of the enemy at heart." After reviewing the case, the U.S. Supreme Court decided that Landis should have recused himself from the case due to prejudice and threw out Berger's conviction on the grounds that he did not receive a fair trial.
Vindicated, Berger again ran for Congress in 1922 and won. This time he was seated without controversy, and he subsequently won reelection in 1924 and 1926.
As a precedent for the current situation involving Trump and the 14th Amendment, Berger's case probably has little value. For one, Berger plainly didn't engage in an insurrection, and the First Amendment should have prevented any conviction for the supposed crime of writing anti-war editorials or publishing Socialist opinions in a newspaper. What happened to Berger says a lot about the awfulness of the Espionage Act and about how war encourages governments to stomp all over civil liberties. But it doesn't say much about how the court should view the 14th Amendment, particularly since the Supreme Court never took up that issue in Berger's case—as it likely will with Trump's.
Still, there's one legal angle that Berger's case demonstrates. Gerard Magliocca, a law professor at Indiana University, told Milwaukee Magazine earlier this year that Berger's case shows that a series of post-Civil War amnesty laws did not fully nullify the 14th Amendment's disqualification clause. That will likely be relevant when, or if, the U.S. Supreme Court or other state courts tackle the question of Trump's eligibility to be president.
Like it was in Berger's day, the notion that banning certain candidates from office is necessary to protect the country from unpopular ideas seems misguided. And wielding Section 3 of the 14th Amendment against political opponents seems certain to worsen the dangerous "will-to-power" politics infecting both major political parties at the moment.
In any case, as we veer into what's sure to be one of the most bonkers years in American political history, maybe there's a small bit of comfort to be gleaned from the knowledge this situation isn't entirely unprecedented.
