The Volokh Conspiracy
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Why Section 3 Disqualification Doesn't Require a Prior Criminal Conviction on Charges of Insurrection [Updated]
The reason is a combination of the general structure of our legal system and the original meaning of Section 3.
One of the most often-raised objections to the Colorado Supreme Court's decision disqualifying Trump from running for president under Section 3 of the Fourteenth Amendment is that Trump has never been convicted of engaging in insurrection. As conservative Washington Post columnist Jim Geraghty puts it: "If you're going to throw a presidential candidate off the ballot for engaging in an insurrection through his personal actions, shouldn't he first be convicted of engaging in an insurrection?"
The answer to this question is "no." The reasons why are based on a combination of the basic structure of our legal system, and the original meaning of Section 3.
A standard element of our legal system is that the same events often give rise to both civil and criminal liability. For example, a person who commits rape, murder, or assault is subject to criminal penalties, and also to civil suits by his or her victims. In such cases, a criminal conviction is not a prerequisite to civil liability. Indeed, even an actual acquittal on criminal charges doesn't necessarily preclude civil lawsuits against the perpetrator. Just ask O.J. Simpson, who was famously acquitted of criminal charges in the murder of his ex-wife Nicole Brown Simpson, and Ron Goldman, but later lost a civil case filed by the victims' families. The criminal acquittal didn't stop Simpson from incurring $33.5 million in civil liability. The criminal and civil cases were distinct, and the result of one did not determine that of the other.
The same reasoning applies to Trump. The absence of a criminal conviction for insurrection doesn't immunize him from civil proceedings arising from his role in the January 6 attack on the Capitol. Disqualification under Section 3 is a civil issue, not a criminal one. It cannot result in a prison sentence or other criminal sanctions.
There are many reasons why civil and criminal cases arising from the same events might turn out differently. The most obvious is that a criminal conviction requires proof beyond a reasonable doubt, while a civil plaintiff can prevail merely based on a preponderance of evidence standard (a slightly more than 50% chance that her position is right). In the Colorado Section 3 case, state courts found that the plaintiffs had sufficient proof to satisfy a "clear and convincing evidence" standard (a higher burden than preponderance, but less than proof beyond a reasonable doubt).
The lower standard of proof and other procedural differences between criminal and civil cases are justified by the generally less severe consequences at stake in the latter. Civil defendants don't risk the death penalty, prison terms, or getting a criminal record. In this case, Trump doesn't even face the prospect of forfeiting any of his property or paying damages. All he stands to lose is eligibility for various state and federal government jobs.
There are situations where the consequences of civil liability are so grave that the civil-criminal distinction may seem artificial, as when defendants end up paying enormous damages that force them into bankruptcy. A short prison term might be less painful than that. But Section 3 disqualification isn't one of those cases.
In addition to these general considerations about the structure of the legal system, there are also points specific to the original meaning of Section 3. None of the ex-Confederates who were adjudged disqualified during Reconstruction had ever been convicted of any crimes related to their roles in the Civil War. That strongly suggests the original understanding didn't require prior criminal conviction for insurrection - or any other offense - before an insurrectionist could be disqualified.
In addition, it's important to recognize that tens of thousands of Confederate troops had surrendered under parole terms that arguably exempted them from prosecution for their wartime activities so long as they did not engage in further insurrection or other lawbreaking. The most famous example is General Ulysses S. Grant allowing Robert E. Lee and the Army of Northern Virginia to surrender under terms that allowed "each officer and man… to return to their homes, not to be disturbed by United States authority so long as they observe their paroles and the laws in force where they may reside" (emphasis added).
Lee's army - and other Confederate forces who surrendered on similar terms - included large numbers of men who could be disqualified under Section 3, because they had previously held public office. That includes Lee himself, subject to disqualification by virtue his previous service as a high-ranking US Army officer (Section 3 disqualifies any insurrectionist who had previously been an "officer of the United States," a category that included commissioned military officers).
After the war, there was disagreement over whether Lee's parole terms exempted him prosecution. Ultimately, attempts to prosecute him were dropped. It is implausible to conclude that the framers and ratifiers of Section 3 thought that Lee and others like him were exempt from disqualification, merely because they were not prosecuted for insurrection, and possibly could not be, given the terms of their surrender.
Legal considerations aside, the victorious Unionists were not willing to prosecute and imprison the many thousands of ex-Confederates covered by Section 3. On the other hand, they were determined to prevent them from holding public office.
In sum, the idea that Section 3 disqualification requires a prior criminal conviction for insurrection is at odds with the general structure of our legal system, which separates civil and criminal liability. It is equally at odds with the original understanding of Section 3.
There is a separate argument about how much civil due process is needed before someone can be disqualified under Section 3. In my view, the trial Colorado held is more than enough. But wherever you come down on this civil due process issue, it's distinct from the claim that a criminal conviction is needed.
UPDATE: Conservative political commentator Conn Carroll criticized this post in a Washington Examiner column. I have responded to him here.
