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.

Comments

[Sam Bankman-Fried]

Help! I’m stuck in a time loop. I’ve been experiencing this day for so long I lost count. Can anyone help me get out of this time loop?!?

[Roger S]

This time Somin cites OJ Simpson for support.

[Purple Martin]

...to illustrate there's a difference between a criminal charge and a civil suit, and that an acquittal in the first doesn't preclude the second. So, I'll assume your issue is that you're one of those teenagers crying on the internet, Leave O.J. Alone!!!

[Rev. Arthur L. Kirkland]

Will the Supreme Court read -- or perhaps accept -- a brief from a professor who does not (repeatedly) refer to himself as a "scholar?"

[TwelveInchPianist]

"[T]he answer to both questions is a resounding 'No.'"

This seems a little like strenuously objecting.

[Michael P]

It's pretty much exactly in line with the argument that our immigration problems would disappear if we just opened the border, which is literally Somin's next screed.

[SRG2]

It’s pretty much exactly in line

Nope.

[Roger S]

Yes. Replace Americans with migrants, and prosecute anyone who disagrees.

[iowantwo]

That opens the door to ban Biden from the ballot

[not guilty]

"That opens the door to ban Biden from the ballot"

Based on what conduct? Show your work.

[BadLib]

Let me try this...

Since a civil, rather than criminal, decision is required then presumably only a preponderance of evidence is required. Quite a low bar.

Insurrection doesn't have a crisp definition in the Constitution and since Section 2383 doesn't apply, the definition is left to someone (we know not who though). Most can probably agree, since that was the context in which Section 3 of the 14th Amendment was written, that an organized four year war waged against the legitimate government of the US and resulting in the death of about 600,000 residents of the US would qualify as an "insurrection". However, do organized attacks repeated for weeks on end against a federal courthouse count? Perhaps, perhaps not. What about attempting to subvert the very important process of confirming a Supreme Court Justice via disruptive behavior during confirmation hearings. Perhaps, perhaps not.

Any action with the intent to subvert the system of governance, including allocation of powers and checks and balances, defined in the US Constitution would seem to some to constitute an "insurrection" - it would not seem to require violence. (Note that Trump didn't engage in violence on Jan 6 and, in fact, called for peace - and his frequent use of the word "fight" and variants in his main speech on Jan 6 obviously didn't refer to violence -- for example no one has accused "Rudy" of violence yet Trump described him as having "fought" very hard).

What about a very short protest that resulted in trespass and some property damage by people whose intent was to insure that the election laws were followed even though they were mistaken in their beliefs. That's hardly attempting to subvert anything - it's attempting to enforce the Constitution.

So when would a brazen attempt to subvert the Constitution and engage in a conspiracy to do so by working with others cross into insurrection? Would it be when, knowing that Congress had not granted to the Executive the power to do so, a President decided to conspire with others (such as their employees) to forgive student loans? What if they attempted to similarly reinstate slavery? Or even cancel a meeting of the EC?

I could easily see where county election officials in red counties in blue states could decide that Biden engaged in an insurrection by intentionally attempting to subvert the Constitution by overstepping his authority in his student loan forgiveness. As a result, they may not put his name on the ballot in November - perhaps tipping the state, for the purposes of the EC, to Red. Obviously those who believe that 14-3 is "self-executing" would not object to this.

[Jason Cavanaugh]

"Any action with the intent to subvert the system of governance, including allocation of powers and checks and balances, defined in the US Constitution would seem to some to constitute an “insurrection” – it would not seem to require violence. (Note that Trump didn’t engage in violence on Jan 6 and, in fact, called for peace – and his frequent use of the word “fight” and variants in his main speech on Jan 6 obviously didn’t refer to violence — for example no one has accused “Rudy” of violence yet Trump described him as having “fought” very hard)."

Your assumed definition of insurrection is wrong, and your insistence that Trump's behavior on January 6th is the only conduct involved in his disqualification is also wrong.

Maybe you should try again without disingenuous arguments.

[BadLib]

Since you disagree with my characterization of "insurrection" why don't you provide a definition.

If you extend the definition to include those beyond Jan 6, then you have included non-violent acts which tends to strengthen my argument.

For example, if trying to convince officials that election results were not correct when they are correct constitutes an 'insurrection' then Al Gore is also an insurrectionist. But I don't recall anyone labeling him as such.

[Jason Cavanaugh]

You could have started with the definition offered in the CSC decision and immediately realized that yours omits a crucial element.

Do you know what you left out, or do I need to tell you and cite a page number myself?

That's before we even get started on the 'checks and balances' and 'separation of powers' nonsense.

[Social Justice is neither]

Don't forget Hillary and her "faithless elector" scheme.

[David Nieporent]

Hillary, of course, had no such scheme.

[Ben of Houston]

I'm sorry, did I hallucinate the repeated discussions about how Gore and Clinton could have won by convincing electors to change their vote?

Whether or not they were part of the discussion, there was a lot of discussion and mention of it by high level personnel. If simple discussion of this is a crime, then yes it counts.

[not guilty]

BadLib, any reference to Joe Biden's conduct is remarkably absent from your screed.

[BadLib]

I of course was playing Devil's advocate as attaching the phrase "insurrection" to anything that Biden had done or anything that Trump has done is ridiculous.

But if you actually read my comment, you would have clearly seen where I referenced Biden's conduct. If you can't figure it out, try using the search function in your browser to locate the word 'Biden' and you would see where I addressed his conduct specifically.

[Purple Martin]

"...attaching the phrase “insurrection” to anything that Biden had done or anything that Trump has done is ridiculous"

As many learned from Sesame Street at an early age: One of these things is not like the others…all of these things are not the same. But for some people, that takes longer.

Happens a lot in politics discussions, and thank you for the excellent example—the conflating of the following Trump and Biden actions:

• an organized effort—though extra-legal means up to and including violence—to block the routine, peaceful transfer of power our representative democracy depends on, with
• use of a congressionally-defined Presidential power backed by serious legal arguments to apply a congressionally-authorized action more broadly than had been the case, to address serious policy issues.

The similarities you use to support your bothsideism "ridiculous" are superficial, the differences, profound.

A better example might compare Trump's first and second tries at a Muslim Ban Executive Order (the third somewhat more moderate try was finally found not to violate the Constitution) with Biden's first Student Loan Forgiveness EO—both matching the 2nd bullet above.

But that doesn't work for you, does it.

[BadLib]

The notion that a person is guilty of an "insurrection" even though they weren't at the scene of a protest that turned violent for a few hours due to the actions of a few hundred people (coupled with insufficient law enforcement) and when that person called for peace is absurd.

On a unitless linear scale, the distance between true insurrectionists (such as officers who waged war against the government for four years resulting in the death of about 2% of Americans) and whatever Trump is reasonably accused of is about a 100. The distance between what Trump is reasonably accused of and my Biden student loan example is about a 5. Yes, both the Trump and Biden cases are absurd - but that's the point.

Without Jan 6, there would have been no "insurrection" claims - it is only a smattering of impromptu violence by a few idiots that opened this opportunity for such claims.

The claims are rather like the "Trillion Dollar Coin" memes and about as ridiculous. A decade from now they will be viewed quite similarly by rational people. Most rational people are viewing them quite similarly now but there are some partisans who actually retain a shred of rationality that still cling to the dream of somehow keeping a major candidate off the ballot by any means possible just because they don't think "their side" can beat that candidate on the field of play.

[Purple Martin]

So, you reasoning is limited to Is Not!! Is Not!! I'll repeat, the similarities you use to support your bothsideism “ridiculous” are superficial, the differences, profound.

Your comparison does apply well to Trump's first two non-serious attempts for a Muslim Ban EO, and Biden's Student Loan Forgiveness EO. But, rating those two a "1" on your scale, an attempt to break our Republic's representative democracy is two orders of magnitude greater (yes, that's "100").

Had George W. Bush or Barack Obama been presented the opportunity of a guaranteed electoral victory but at the cost of America surviving only as a broken republic, I have no doubt neither would have taken it. There’s also no doubt that Donald Trump, no more concerned with preserving an unbroken republic than Saddam Hussein, Kim Jong-un, Hugo Chávez, or Vladimir Putin, would accept it in an instant.

Indeed, Trump's stated, demonstrated, continuing goal is to Make America...a broken republic where he can order "the termination of all rules, regulations, and articles, even those found in the Constitution." Because that is the only 'republic' in which he can retain power. And in his effortless, energetic and constant lying, he orders it of his followers. Is it your desire too? I sincerely hope not.

On January 6th, 2021, President Donald Trump triggered a purposeful assault on the nation's Capitol that threatened our representative democracy’s free and fair elections and thus, our constitutional republic. But the effort had begun months earlier, with Trump incessantly repeating his Big Lie — that only an unimaginably complex conspiracy of thousands of people coordinating massive fraud could block his “win in landslide.”

Trump tried but failed to convince the courts of the alternate facts necessary to his big lie. He tried but failed to intimidate officials of several states into reversing their states’ election results. He failed to undermine the Justice Department, failed to enlist the help of the military, failed to persuade enough members of Congress to vote to overturn the election.

Failing in all other areas and facing the June 6th Congressional validation of his defeat, Donald Trump used his final rally as the focus point and culmination of his years-long campaign of ruthless, relentless, denialist propaganda. As a sitting president failing to gain the constitution’s mandated periodic reapproval of the people, Donald Trump tried to block a peaceful transfer of power, provoking a domestic insurrection among his followers to nullify an election he unambiguously lost.

Our Constitution is meaningless if, without evidence and despite losing in every court, the loser of an election succeeds in simply refusing to accept the outcome. Yes, America proved resilient enough to survive such persistent Presidential perfidy — this time. But Trump tried, to the best of his (fortunately limited) abilities. He gets no credit for having failed.

In our constitutional republic, no high crime is higher, no misdemeanor more treacherous. No president has been more deserving of impeachment or less deserving of reelection. Donald Trump — a would-be Caudillo unfit to lead a free people — must never again be allowed the opportunity to subvert American democracy.

[Drewski]

"Student loan forgiveness is basically insurrection" is certainly the quality of argument I would expect from Trump supporters. Have you ever considered that, if you have to say stupid things to defend a position, it may indicate that position is stupid?

[BadLib]

I can't speak for "Trump supporters" as I'm not one -- I've never voted for him and won't vote for him in the future.

I have, however, recently changed my voter registration to "Republican" after decades of being registered with "no party affiliation" just so I can vote against Trump in the primaries (my state has closed Republican primaries) and will change my registration back when the primary is over.

I am, however, very concerned about a system that is bent to the point that voters in the millions may be disenfranchised because their preferred candidate has been banned from the ballot by the candidate's political adversaries. This is the stuff of faux democracies like Putin's reign in Russia.

If that beast is unleashed with a fuzzy definition of "insurrection" with a very low standard of proof (requiring claims, for example, that the candidate sent "coded messages" in plain English that only his followers would understand) it can be applied by Red states as well as by Blue states in the future.

People all too often forget that politics is fought with two edged swords. Many did so when celebrating the almost complete nuking of the Senate filibuster for confirmations - opening the door for the Republicans to, with little effort and no ground breaking acts, extending it a bit to include confirmations of Supreme Court Justices. This gave us the current SCOTUS for which we have Reid to curse or thank. I warned people back when Reid deployed the nuclear option about ten years ago that it was a mistake - but those who wanted immediate gratification didn't see it and wouldn't listen.

I care about democracy far, far more than I care about a particular candidate in a term limited office. Trump, Biden - the country will survive four years of either with little lasting ill effect. It may, however, not survive a court ordered breakdown of the democratic process.

[Purple Martin]

Since you seem to have missed this the first time...

Disingenuous.
dis·in·gen·u·ous /ˌdisənˈjenyo͞oəs/ adjective
Not candid or sincere, typically by pretending to know less about something than one really does

Often used by people pretending to lack knowledge of a subject they are actually quite familiar with; or claim to support something they actually do not.

[PaulRandall]

The arguement that insurrection isn't defined is desparate nonsense. All you have to d is look it up in a dictionary. There is no legitimate definition of insurrection that does not align wth trumps actions.

[Kazinski]

As a general proposition Ilya is right, but what he misses is that Congress at one time did legislate a civil process for removing insurrectionists. But in 1948 they replaced that civil process with a criminal one.

Section 5 gives the power to decide how Section 3 is enforced to Congress, not law professors or judges.

[not guilty]

"As a general proposition Ilya is right, but what he misses is that Congress at one time did legislate a civil process for removing insurrectionists. But in 1948 they replaced that civil process with a criminal one."

Au contraire. The 1948 criminal statute, codified at 18 U.S.C. § 2383, does not implement the Fourteenth Amendment, § 3. It instead creates a substantive criminal offense, and its application is both broader and narrower than the civil disability imposed by § 3.

The Enforcement Act of 1870, § 14, explicitly references the Fourteenth Amendment, § 3. https://www.senate.gov/artandhistory/history/resources/pdf/EnforcementAct_1870.pdf 18 U.S.C. § 2383 conspicuously does not.

Disqualification under § 3 is limited to those persons who had previously taken an oath to support the Constitution. Application of § 2383 is not so limited.

Congress may by a vote of two-thirds of each House, remove a § 3 disability. Congress has no such power to nullify any part of the judgment of an Article III federal court imposed as punishment for a crime. Only the President can do so by issuing a pardon or reprieve.

Disqualification from holding office under § 2383 applies only to holding any office under the United States. Disqualification under § 3 applies to any office, civil or military, under the United States, or under any State.

Disqualification from holding office under § 2383 cannot be applied ex post facto to conduct occurring prior to the enactment of the statute in 1948. The very purpose of the Fourteenth Amendment, § 3 was to disqualify ex-Confederates based on their conduct during the Civil War, which occurred prior to ratification of the amendment in 1868.

Criminal culpability/amenability to punishment and being subject to civil penalties or disabilities can arise from the same conduct. Disqualification from holding office is akin to occupational debarment, which has not historically been viewed as punishment. SCOTUS HAS long recognized that "revocation of a privilege voluntarily granted," such as a debarment, "is characteristically free of the punitive criminal element." Id., at 104, quoting Helvering v. Mitchell, 303 U.S. 391, 399, and n.2 (1938).

Donald Trump could theoretically be indicted under 18 U.S.C. § 2383, tried and acquitted, and still remain subject to disqualification in a civil proceeding according to the Fourteenth Amendment, § 3. Compare, United States v. One Assortment of 89 Firearms, 465 U.S. 354 (1984); Helvering v. Mitchell, supra.

[not guilty]

Correction. I should save said:

Criminal culpability/amenability to punishment and being subject to civil penalties or disabilities can arise from the same conduct. See e,g, Hudson v. United States, 522 U.S. 93 (1997). Disqualification from holding office is akin to occupational debarment, which has not historically been viewed as punishment. SCOTUS HAS long recognized that “revocation of a privilege voluntarily granted,” such as a debarment, “is characteristically free of the punitive criminal element.” Id., at 104, quoting Helvering v. Mitchell, 303 U.S. 391, 399, and n.2 (1938).

[Michael P]

The electorate is not the one revoking a privilege in this case.

[Brett Bellmore]

"The 1948 criminal statute, codified at 18 U.S.C. § 2383, does not implement the Fourteenth Amendment,"

It has to be implementing the 14th amendment, or else it is unconstitutional, at least in regards to the disqualification.

Why?

Because, absent section 3 of the 14th amendment, Congress would simply lack, as a matter of enumerated powers, any power to add qualifications to be President, and even more clearly any power to dictate who could hold state positions. Absent Section 3, it's literally no business of the federal government at all who a state deems qualified for state office.

So, it's either Section 3 enabling legislation, or it's unconstitutional.

[David Nieporent]

Or its disqualification provision doesn’t apply to the president.

[PaulRandall]

If 18 USC 2383 applies to the president then so does A14 S3.

[Brett Bellmore]

That was my thought. No mention at all that Congress actually did enact Section 3 enabling legislation which permitted federal, (Not state!) civil quo warranto actions, and then later repealed it.

Or that the disqualification provision of 8 U.S.C. § 2383 would be clearly unconstitutional if it wasn't 14th amendment enabling legislation.

Instead he just appeals to precedent from during and immediately after the Civil war, such as the 1862 confiscation act.

It's true that the 1862 confiscation act couldn't derive its constitutionality from Section 3, which hadn't even been written yet. But Somin gets the lesson here exactly backwards.

The 1862 confiscation act WAS unconstitutional! The manifest unconstitutionality of this, and several other Civil war era laws, was actually why they wrote the 14th amendment; They knew these measures wouldn't survive judicial review otherwise.

[Lee Moore]

I think Somin's brief will prove helpful.

Once the number of amicus briefs reaches 10,000 or so, I think even the Chief Justice will feel like issuing a ruling, one way or another, that immunises the court from ever having to consider this matter again.

[Social Justice is neither]

Digital briefs aren't much use for fire starting or toilet paper so I'm not sure what use there could be for his motivated reasoning that he would never apply broadly, just this once due to his personal derangement.

[Abdul Abulbul Amir]

So by this reasoning Biden can be removed from ballots among the several states for unfreezing Iranian assets. Clearly giving aid to our enemies.

[David Nieporent]

Even after the past eight years, it's astonishing how many MAGA types think, "We can make bad faith arguments" is a good position to take.

[Brett Bellmore]

I think it's more a case of, "We can make bad faith arguments, too." That the attempts to disqualify Trump are in bad faith, and what's sauce for the goose is sauce for the gander, is exactly the point.

[SRG2]

Well, if someone wishes to argue that by definition any anti-Trump action is in bad faith, that itself is an argument in bad faith.

Of course whether by this point MAGAs are so divorced from reality that all they have is faith, bad or otherwise, is a separate issue.

[Brett Bellmore]

I wouldn't argue that any anti-Trump action is bad faith by definition. I think, and I've said before, that pretty much every President in my lifetime has done SOMETHING genuinely deserving impeachment, except maybe Carter, who was just kinda ineffectual. Trump is no exception to that.

That doesn't mean that the actions that have actually been taken against Trump haven't, for the most part, been in bad faith. That bad faith was merely contingent, rather than by definition.

[Libertatem]

I think we might need to prepare for one of the greatest SCOTUS "punts" of all time here. There are probably 7-9 votes declaring this a political question that the courts cannot (or ought not) decide. The Court has already rendered worthless the Guarantee Clause of the Constitution, and those same "political question" factors weigh against the Court deciding this case on the merits.

We have (1) an explicit textually demonstrable commitment of the issue to a coordinate political department (Congress); (2) a lack of judicially manageable standards for resolving it (see the wide range of briefs and arguments about issues ranging from the definitions of "engaging in," "insurrection," and "officer...of/under the United States" to disagreements about the need for enforcement legislation, etc.); (3) the impossibility of deciding without an initial policy determination of a kind meant for nonjudicial discretion (see (2)); (4) the impossibility of a court undertaking independent resolution without expressing lack of respect due coordinate branches of government; (5) an unusual need for unquestioning adherence to a political decision already made (did Congress already decide this issue in passing the 14th Amendment in the first instance? Was the Amendment itself a reflection of a political compromise/decision?); (6) the potentiality of embarrassment from multifarious pronouncements by various departments on one question (see, again, all of the briefs and arguments being raised over this case).

A majority of the Court could find this case nonjusticiable and, potentially, overturn the state courts' decision on that ground alone.

[BadLib]

I would not be at all surprised that there are nine votes in judgement that result in Trump being on the ballot in all states.

However, I expect that the reasons will vary quite a bit - a lot of concurrence in part, dissent in part, etc. I think most Justices (esp. the "liberal" three) will look to find a way to allow Trump on the ballot. They all likely recognize that in a democracy it is very dangerous to allow potentially millions of voters to be disenfranchised by being unable to vote for their preferred candidate without a very solid and unambiguous reason (which is lacking here).

It is a common for faux democracies, such as Russia now has, for the party in power to find a way to ban opponents from the ballot. I think every Justice understands the folly of allowing this in the US - if not in this case, in the precedent it could set that may allow "their woman" to be banned from the ballot based on a flimsy claim of "insurrection" in the future.

[PaulRandall]

It will be 6 to 3 to uphold with Roberts writing the opinion