My Supreme Court Amicus Brief in Trump v. Anderson—the Section 3 Disqualification Case

The brief explains why a criminal conviction is not necessary for Trump to be disqualified from the presidency under Section 3 of the 14th Amendment.

(Tannen Maury/UPI/Newscom)

Today, I filed an amicus brief in Trump v. Anderson, the Supreme Court case addressing the issue of whether Donald Trump is disqualified from the presidency under Section 3 of the Fourteenth Amendment. It explains why a prior criminal conviction on charges of insurrection (or any other criminal charges) is not necessary for for Trump to be disqualified. Text, original meaning, and O.J. Simpson all support that conclusion! I previously wrote about this aspect of the case here. Here's an excerpt from the brief's Summary of Argument:

Section 3 of the Fourteenth Amendment… safeguards our republic against the threat posed by public officials who have previously undermined it by engaging in insurrection or giving "aid and comfort" to the enemies of the United States. U.S. Const. Amend. XIV, § 3. Having shown their true colors once, these insurrectionist present and former officials are not permitted a second chance to undermine the republic….

The key questions before this Court are whether Donald Trump is disqualified under Section 3, and who has the authority to determine that Section 3 is applicable and, therefore, should be applied.

As this Court undertakes the weighty task of reviewing this case, this amicus brief hopes to provide guidance on two specific issues that have been raised repeatedly by Petitioner and Petitioner's amici. The first is whether Mr. Trump had to be convicted of a crime before he could be disqualified under Section 3. The second is whether disqualification in the absence of such a conviction violates Mr. Trump's right to due
process under the Fourteenth Amendment…. [T]he answer to both questions is a resounding "No."

Part I explains why a criminal conviction is unnecessary for disqualification under Section 3. A criminal conviction is not required under the text and original meaning of the Fourteenth Amendment. In addition, the distinction between civil and criminal proceedings is a fundamental aspect of our legal system. The same events can give rise to both criminal charges and civil liability or (as in this case) disqualification. One is not a prerequisite to the other. Indeed, as demonstrated by the famous case of O.J. Simpson, a person acquitted of a crime may nonetheless be subject to civil liability for the very same events.

If there is no general requirement of a criminal conviction, there can be no requirement of a specific conviction under 18 U.S.C. § 2383, the federal criminal insurrection statute. Conviction under Section 2383 is not and was not designed to be the exclusive mode of enforcing Section 3 disqualification.

Part II explains why disqualification in the absence of a criminal conviction does not violate Mr. Trump's due process rights. The Due Process Clause of the Fourteenth Amendment only applies to situations where a person is deprived of "life, liberty, or property." U.S. Const. Amend. XIV, § 1. Neither life, nor liberty, nor property is lost by virtue of disqualification from various public offices. Even if the Due Process Clause does apply, the civil process and standard of proof used by the Colorado courts are more than sufficient.

I am grateful to Gerson Smoger, a highly experienced litigator and Supreme Court amicus brief writer, for his assistance in drafting the brief on short notice. Prof. Gerard Magliocca, one of the leading academic experts on Section 3, provided valuable insights on the historical record.

I have written about other issues related to the Section 3 litigation in a variety of writings, most extensively here and here.