The January 6 Project

After the Cawthorn Ruling, Can Trump Be Saved From Section 3 of the 14th Amendment?

By Roger Parloff
Tuesday, June 7, 2022, 1:32 PM

Last month, a federal appeals panel gave the back of its hand to Rep. Madison Cawthorn, who was trying to stifle an attempt to block his bid for a second term.

A group of voters in Cawthorn’s district, represented by an out-of-state advocacy group, had alleged that Cawthorn’s conduct before, during, and after the January 6 Capitol riot amounted to having “engaged in insurrection,” thereby disqualifying him from holding office under Section 3 of the 14th Amendment. (For an in-depth discussion of Section 3 and of Cawthorn’s case in particular, see “Can Madison Cawthorn Be Blocked from the North Carolina Ballot as an Insurrectionist?”) 

Cawthorn’s lawyers argued that the Amnesty Act of 1872 barred the voter challenge against him. In that statute, Congress exercised its power under Section 3 to lift the disabilities that the provision had imposed upon large categories of Confederate officers and officials—in essence, all but the highest-ranking ones, like Confederate president Jefferson Davis.

Although Cawthorn lost his primary on May 17, the U.S. Court of Appeals for the Fourth Circuit ruled nonetheless on May 24, asserting that the case was not moot because the vote had not yet been certified. Judge Toby J. Heytens, writing for the court, summarized both the issue presented and the panel’s decision in terse terms:

The issue currently before us is whether that . . . 1872 legislation also prospectively lifted the constitutional disqualification for all future rebels or insurrectionists, no matter their conduct. To ask such a question is nearly to answer it. Consistent with the statutory text and context, we hold that the 1872 Amnesty Act removed the Fourteenth Amendment’s eligibility bar only for those whose constitutionally wrongful acts occurred before its enactment. 

The argument that Congress in 1872 had prospectively shielded Cawthorn from a Section 3 challenge lodged 150 years later—a tortured, ahistorical, purportedly textualist argument—had been advanced by Cawthorn’s lawyer, veteran Republican elections attorney James Bopp, Jr. But Bopp’s legal theory would have had an impact far beyond just the Cawthorne case. It was, in effect, an appeal to the courts to fashion a deus ex machina for the Republican Party. It was a magical claim that would have, in one fell swoop, come to the rescue of all Republican officials who have been, or may be, challenged under Section 3 for their alleged conduct relating to the Jan. 6, insurrection. Cawthorn is just one of nine state or federal officials whom advocacy groups have already targeted in such ballot challenges. All of these challenges can be seen, moreover, as warm-up acts—if not stalking horses—for the main event: a challenge to former President Trump’s eligibility, should he try to run again.

Truth be told, many Democrats would be delighted to see the Section 3 litigation magically disappear, too—both as a matter of political strategy and of good governance. The spectacle of out-of-state, liberal advocacy groups trying to disqualify pro-Trump primary candidates cannot be playing well locally. Rep. Marjorie Taylor Greene of Georgia, who fended off her own Section 3 challenge, won her primary with nearly 70 percent of the vote.

More important, while Section 3 has salutary aims—excluding demonstrably anti-constitutional subversives from office and achieving a certain measure of retributive justice—it is undeniably anti-democratic. It removes a constituency’s chosen representative while doing nothing to address the sentiments that such a constituency may still hold. 

That’s part of why Section 3 was a failure the first time around—the real lesson of the Amnesty Act of 1872. With that act, just four years after Section 3’s ratification in 1868, Congress lifted its sanctions from all but the very worst actors. And that was in the wake of a civil war that had just left more than 600,000 people dead. To the extent that present-day Democrats are typically arguing for greater democracy—restoration of the Voting Rights Act; striking down voter suppression measures; an end to partisan gerrymandering; abolition of the Electoral College; reform of the Electoral Count Act—this litigation to block Republicans from voting for their favored candidates sends a discordant message.

But issues of political strategy are outside Lawfare’s lane. In this article I will discuss the legal landscape for Section 3 cases at this stage. Counting last week’s Cawthorn ruling, Section 3 challenges have now generated two state and three federal judicial rulings—the first opinions on Section 3 in a century and a half. They have also produced one remarkable fact-finding hearing before a Georgia administrative law judge (relating to Rep. Greene), which culminated in a thoughtful written ruling as well.

Advocacy groups have mounted nine challenges so far. The Arizona Supreme Court has definitively dismissed three of them—those lodged against Rep. Paul Gosar, Rep. Andy Biggs and state Rep.Mark Finchem. Georgia Secretary of State Brad Raffensperger found a fourth challenged official, Greene, qualified to run for office after an evidentiary hearing, affirming the ruling of an administrative law judge. (The challengers have appealed Raffensperger’s decision in the state courts, while Greene is appealing the federal court ruling refusing to bar the challenge before Raffensperger’s office.) The challenge to a fifth, Cawthorn, will likely become moot after his primary loss is certified. 

On June 3, a federal judge in the Eastern District of Wisconsin dismissed three more challenges. Those had been brought in a single federal suit against Sen. Ron Johnson, Rep. Tom Tiffany, and Rep. Scott L. Fitzgerald. The judge cited lack of standing and other procedural deficiencies in her order. That leaves one live challenge remaining: Voters backed by the nonprofit Citizens for Responsibility and Ethics in Washington (CREW) have brought a New Mexico state court action to oust Otero County Commissioner Couy Griffin, who was convicted in March of a misdemeanor for his involvement in the Capitol riot. I should also mention a short-lived, tenth challenge: In February, a Democratic primary candidate filed a one-sentence Section 3 challenge to Rep. Jim Banks, seeking to bar him from the Republican primary ballot for his Indiana district. The Indiana Election Commission denied the petition orally about a week later and the challenger did not appeal.

What light has this litigation shed so far? Which past, present, or would-be future public officials—if any—are realistically imperiled by these challenges?

On the legal side,  there are at least four potential legal barriers—like the Amnesty Act claim litigated in Cawthorn—that could block all, or nearly all, of these challenges from going anywhere. 

Then there’s a separate question looming over these cases: Based on the facts as we know them right now, is any official or candidate in realistic danger of being found to have “engaged in insurrection”?

I say “right now” because virtually no discovery has been—or seems likely to be—obtained from any member of Congress in the near future. Although the House select committee on the January 6th attack has interviewed more than 1,000 people in the course of its probe, it is believed to have obtained almost no cooperation from those senators and representatives most likely to be targeted in Section 3 challenges—those closest to Trump. At least four House members have reportedly rebuffed subpoenas from the committee. In addition, voter-challengers so far have been unable to obtain meaningful discovery through voter-challenge procedures. Though Rep. Greene was forced to testify at a hearing, the administrative law judge denied the challengers any prehearing discovery.

For this reason, most of the challenges have been factually thin—even borderline frivolous—given the robust protections the First Amendment affords political speech. After an evidentiary hearing in the case of Rep. Greene, for instance, administrative law Judge Charles Beaudrot concluded in a ruling later affirmed by Georgia Secretary of State Brad Raffensperger:

Her public statements and heated rhetoric may well have contributed to the environment that ultimately led to the Invasion. . . . But expressing constitutionally-protected political views, no matter how aberrant they may be . . . . is not engaging in insurrection under the 14th Amendment.

As I’ll explain later, only two officials appear to be realistically imperiled by Section 3 at the moment. They are an obscure county commissioner in New Mexico, Couy Griffin, and former President Trump.

There is actually a disquietingly strong case at this point that Trump should be disqualified under Section 3 as a factual matter. I say “disquietingly” because the prospect of seeing his name blocked from the ballot in at least some states—though certainly not in others—gives pause in terms of both the violence it might unleash among his followers and the chaos it could bring to the 2024 presidential election.

Still, the prospect of his returning to power, notwithstanding all the evidence of his having incited the Capitol insurrection, is even more disquieting. 

Potential Blanket Legal Barriers

Here is the text of Section 3:

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. 

The first potential legal barrier to bringing Section 3 challenges today is the claim that the Amnesty Act of 1872 bars them.

Though technically still alive as an issue, the Fourth Circuit’s strong rejection of this inherently implausible contention probably puts it to bed. U.S. District Judge Amy Totenberg of the Northern District of Georgia also rebuffed it in litigation brought by Rep. Greene to try to block the challenge to her qualifications before the Secretary of State’s office.  

The only precedent ever supporting this theory is the now-reversed lower-court ruling in the Cawthorn case. And few, if any, scholarly commentators ever embraced the reasoning behind that opinion by U.S. District Judge Richard Myers II of the Eastern District of North Carolina. Furthermore, Judge Myers cast doubt on his own confidence in his ruling when he tried to prevent it from being appealed. Though his order had blocked the voters challenging Cawthorn from proceeding with their petition before the state election board, Myers refused to let them intervene in the case to appeal his order. Cawthorn had named only the elections board members as defendants in that federal injunction suit, and those officials declined to appeal. The Fourth Circuit reversed Myers’s failure to grant intervention as “clear error.” 

Next is the claim that Article l, Section 5, bars Section 3 challenges to U.S. senators and representatives. That provision says that “Each House shall be the Judge of the . . . Qualifications of its own Members.” Some have argued that, under this clause, each of these bodies has exclusive power to decide a Section 3 challenge to one of its own.  

This is an argument that Derek T. Muller first advanced in a law review article in 2015, long before the events of January 6, 2021, and that he also laid out in an amicus brief to the Fourth Circuit in Cawthorn’s case. 

Opponents of this view, on the other hand, argue that Article I, Section 5, must be read in conjunction with Article I, Section 4, which gives states power to police how elections are held. According to the latter clause, “The Times, Places and Manner of holding Elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof . . . .”  

So far, judges have come out all over the map on this question. One judge on the Cawthorn appellate panel, Judge Julian Richardson, was persuaded by Muller’s argument, adopting it in a 33-page separate opinion in the Cawthorn ruling.

“In my view,” Richardson wrote, “Art. I, § 5, cl. 1 is one of the rare instances, like the Impeachment Clause, where the Constitution really does say, in black and white, that an issue is reserved for another branch and that branch alone.”

But Richardson’s opinion prompted another panelist, James A. Wynn, Jr., to write a forceful rebuttal of Muller’s theory, in a 10-page concurrence. Wynn focused on the fact that Article I, Section 5, says nothing about “candidates”—as opposed to “members” of Congress—and argued that Judge Richardson’s approach would have far-reaching, impractical effects:

[T]he concurrence believes that every State in the Union is completely powerless to regulate candidates or ballot access. No court has ever held that view. Nor has any court ever held that Article I, Section 5 prevents States from enacting eminently reasonable measures to prevent twelve-year-olds or noncitizens, for example, from running for congressional office. Yet that is precisely what the concurring opinion . . . argues the Constitution requires. 

Other courts have also split over Muller’s theory. U.S. District Judge Totenberg rejected a version of it in Greene’s case. Arizona Superior Court Judge Christopher Coury, on the other hand, accepted it as one of several bases for dismissing the cases against Gosar, Biggs, and Finchem. The Arizona Supreme Court affirmed that dismissal, but rested its ruling only on a narrow, state law question.   

The bottom line is that while Muller’s argument is much more plausible than the Amnesty Act argument, it still faces strong headwinds and only applies to U.S. representatives and senators. It has no relevance to candidates for state office or—most important of all—candidates for the presidency.  

A third potential barrier is the claim that Section 3 is not “self-executing.” This argument is based on Griffin’s Case, an 1869 habeas corpus action decided by Chief Justice Salmon Chase sitting as a circuit judge. In that dispute, Griffin, a freed slave, was arguing that his felony conviction for a “shooting with intent to kill” was null and void because the judge who presided at his trial should have been disqualified under Section 3 due to his service in the Confederacy. Chase upheld the conviction, finding that Section 3 was not self-executing. By that he meant that Section 3 could not be enforced until Congress enacted a method for enforcing it, which it hadn’t yet done. Accordingly, the judge who presided at Griffin’s trial—even if theoretically disqualified under the letter of Section 3—had been entitled to remain in office at the time he presided over Griffin’s trial.  

After Griffin’s case, Congress did enact enabling legislation to set up mechanisms for federal district attorneys—the equivalent of today’s U.S. Attorneys—to enforce Section 3. That legislation was later repealed, however. Accordingly, proponents of this argument today say that, absent new enabling legislation, no one is empowered to enforce Section 3. Per this theory, all contemporary Section 3 challenges are dead on arrival. 

This contention has been advanced by, among others, law professors Josh Blackman of South Texas College of Law Houston, and S.B. Tillman of Maynooth University School of Law and Criminology. In an April op-ed column in the New York Times, those authors candidly note that their contention, aside from its scholarly force, has the added benefit—from their perspective—of sweeping away what they see as undesirably divisive litigation. “If the courts find that Section 3 is not self-executing,” they wrote, “there is no need for state election officials to decide far more politically charged questions about whether Mr. Cawthorn and Ms. Greene—and potentially, looking ahead to 2024, Donald Trump—engaged in insurrection.” 

Neither Cawthorn nor Greene raised Griffin’s case as an issue in their complaints. Gosar, Biggs, and Finchem did, however, and Arizona Superior Court Judge Coury accepted it as one of his bases for dismissing their cases. Again, the Arizona Supreme Court affirmed on narrower grounds.

In a law review article first posted online shortly before the January 6 Capitol insurrection, Professor Gerard Magliocca of the University of Indiana School of Law, rejected the notion that Section 3 was not self-executing. He observed that Chase’s ruling in Griffin’s case was “contradicted” by another ruling Chase had rendered in a different case just months earlier—involving former Confederate president Jefferson Davis—in which he concluded that the section was self-executing.

Magliocca concluded that “this pair of results is simply illogical and cannot be explained by legal analysis.” As for what the correct interpretation should be, Magliocca came down on the side of Section 3 being self-executing, in part for these reasons: 

First, Section Three contains the same mandatory language (“No person shall . . .”) as Section One (“No state shall . . .”), and there is no doubt that Section One is self-executing. Second, nothing indicates that Congress saw Section Three as anything other than self-executing when the Fourteenth Amendment was drafted. . . . Finally, the fact that Congress legislated about Section Three did not . . . strongly imply that Section Three required legislation.

On top of Magliocca’s arguments, one might add that, prior to Congress’s enactment of enabling legislation, there were at least three reported cases in which federal circuit and state supreme courts ousted Confederate officials from office under Section 3 without enabling legislation.

Somewhat unexpectedly—since the issue wasn’t squarely before him—Fourth Circuit Judge Richardson, in his separate opinion in last month’s Cawthorn ruling, adopted Magliocca’s skeptical view of Griffin’s case. In a lengthy footnote citing Magliocca and other historical sources, Richardson wrote of the inconsistent Chase opinions:

These contradictory holdings . . .  draw both cases into question and make it hard to trust Chase’s interpretation. . . . [A] likely motive was that Chase was against § 3 for pragmatic reasons. Apparently, Chase had worked vigorously to keep § 3 out of the Fourteenth Amendment, fearing that it “was too harsh on former Confederate officials,” making reunification harder. . . . I do not take his discussion as much evidence of broader contemporary understanding.

Notwithstanding the strength of Magliocca’s and Richardson’s critiques, it is likely that those who are looking for a deus ex machina to defend against Section 3 challenges will turn increasingly to Griffin’s case to supply it. It is more respectable than the Amnesty Act claim and—unlike the Article 1, Section 5, argument that Congress alone has the authority to unseat members—it protects Trump.

And lastly, there’s the  claim that Section 3 does not apply to a president who violates his oath by engaging in insurrection.  The argument has been advanced by Professors Blackman and Tillman in a 54-page (post-Capitol riot) law review article.

Section 3, remember, has a peculiar structure. Its provisions are not triggered simply by engaging in insurrection (or rebellion). They are triggered only when someone engages in insurrection after having taken an oath to uphold the Constitution. Further, even then, its provisions are triggered only if that insurrectionist took that oath in order to hold one of a list of specific offices. Finally, even assuming all of those triggering events are met, Section 3 still only bars those people from holding any of another list of specific offices, which is similar but not identical to the list of triggering-oath offices.   

So here’s the problem. Neither list of offices in Section 3—not the list of triggering-oath offices nor the list of offices barred to oath-taking insurrectionists—mentions the president explicitly. Instead, each list includes an ambiguous category that might or might not include the president. Specifically, the list of triggering-oath offices includes “an officer of the United States,”  while the list of offices from which a post-oath insurrectionist will be barred includes “any office . . . under the United States.” 

The only potentially pertinent oath Donald Trump had ever taken as of Jan. 6, 2021, was his oath of office to become president. So if the presidency does not happen to be included in Section 3’s oath-triggering list, then it doesn’t matter if Trump engaged in insurrection; he’s not covered by Section 3 even if he did! 

Blackman and Tillman argue exactly that: That Section 3’s triggering-oath term, “officer of the United States,” does not include presidents. (They take no position about whether the term Section 3 uses in its list of offices barred to oath-taking insurrectionists—“office . . . under the United States”—encompasses the president.) Their contention is based on the fact that that same phrase, “officer of the United States,” appears in Article II of the Constitution, where it refers specifically to individuals appointed or commissioned by the president, but not to the president himself. Presumably, the drafters of Section 3 wanted to use the term in the same way, the authors argue.

The legislative history of Section 3 appears to offer no support for their view, but no refutation of it either. Magliocca, in his pre-Capitol riot article, noted that at least one Senator did inquire during debates about why its text seemed to permit ex-Confederates to become president. Magliocca continues:

Another Senator replied that the lack of specific language on the Presidency and Vice-Presidency was irrelevant: “Let me call the Senator’s attention to the words ‘or hold any office, civil or military, under the United States.’” Practically speaking, Congress did not intend (nor would the public have understood) that Jefferson Davis could not be a Representative or Senator but could be President.

 But the exchange Magliocca highlights doesn’t squarely address Blackman and Tillman’s narrow argument. Again, they take no position on whether most ex-Confederate oath-takers could become president under Section 3 (a question which would hinge on the meaning of Section 3’s other ambiguous phrase, “officer . . . under the United States.”). They do argue, however, that a president who himself commits insurrection—assuming he has taken no other pertinent oaths beforehand except his presidential oath—is, for some puzzling reason, excluded from the disabilities imposed by Section 3.

At least one commenter, Michael Stern, a former senior counsel for the U.S. House of Representatives, has termed the Blackman-Tillman argument “quite weak,” yet conceivable:

It … seems unlikely that the framers of section 3 would have deliberately omitted the president and vice president from the list of officials prohibited from engaging in insurrection and rebellion, although this conclusion seems more reasonable if one assumes their focus was entirely on the immediate past rebellion rather than potential future ones. 

In any case, for those seeking a deus ex machina, this argument appears to afford another possible hook, however slender, upon which to hang one’s hat. 

But this is all to say nothing of the key, separate factual question: Is any official in realistic danger of being found to have “engaged in insurrection”?

To answer this factual question we need legal definitions of “insurrection” and “engaging in.”

It should not be hard to establish that the Capitol riot qualifies as an insurrection. As I recounted in my original article about the Cawthorn case, it appears to fit many nineteenth and twentieth century definitions of that term.

One grand jury instruction on criminal insurrection, for instance, approved by a federal circuit court in Illinois in 1894, easily encompasses the events of that day:

Insurrection is a rising against civil or political authority,-- the open and active opposition of a number of persons to the execution of law in a city or state.  …  It is not necessary that there should be bloodshed; it is not necessary that its dimensions should be so portentous as to insure probable success, to constitute an insurrection. It is necessary, however, that the rising should be in opposition to the execution of the laws of the United States, and should be so formidable as for the time being to defy the authority of the United States. 

There are other indicia that the Capitol riot should be considered an insurrection by elections officials interpreting Section 3. The February 2021 article of impeachment against President Trump for “incitement of insurrection” was endorsed by bipartisan majorities of both houses of Congress. One of Trump’s own lawyers at that impeachment conceded that the event was an “insurrection.” At least two judges of the U.S. Court of Appeals for the D.C. Circuit have used that term to describe the events of that day.

Such characterizations only become stronger as ever more participants in it plead guilty to serious crimes that go far beyond aimless or mercenary rioting. Three have pleaded guilty to participation in a seditious conspiracy whose goal was to “oppose by force the lawful transfer of presidential power.” More than 280 alleged participants have been charged with “corruptly obstructing an official proceeding,” of whom close to a dozen have been convicted, either by plea or jury verdict. The purpose of those obstructions is often charged as, for instance, to “stop, delay and hinder the Certification of the electoral College vote.”   

The much steeper hurdle in Section 3 cases will be proving that any state or federal official “engaged in” that insurrection. An 1869 North Carolina Supreme Court ruling defined that term to mean “[v]oluntarily aiding the rebellion, by personal service, or by contributions, other than charitable, of anything that was useful or necessary in the Confederate service.” A very similar formulation is found in a jury instruction approved by the U.S. Circuit Court for North Carolina in 1871: “a voluntary effort to assist the Insurrection or Rebellion, and to bring it to a successful termination” (i.e., successful from the perspective of the insurrectionists).

Drawing from the above two precedents and other sources, administrative law judge Charles Beaudrot, writing last month in the Greene case, provided additional helpful glosses on the meaning of that phrase:

It appears that it is not necessary that an individual personally commit an act of violence to have “engaged” in insurrection. See [United States v. Powell] (defendant paid to avoid serving in Confederate Army); [Worthy v. Barrett] (defendant simply served as county sheriff). . . .

[I]t appears that “engage” includes overt actions and, in certain limited contexts, words used in furtherance of the insurrections and associated actions. “Merely disloyal sentiments or expressions” do not appear be sufficient. Id. But marching orders or instructions to capture a particular objective, or to disrupt or obstruct a particular government proceeding, would appear to constitute “engagement” under the Worthy-Powell standard. [Emphasis added.]

Under these definitions, we need to look closely at three individuals. 

The first is Pennsylvania gubernatorial candidate Doug Mastriano, who has recently become the focus of considerable interest. A Pennsylvania state senator since 2019, he won the Republican gubernatorial primary last month. After the November 2020 election, he propagated false claims of election fraud, organized buses to ferry Pennsylvanians to the Jan. 6 Stop the Steal rallies, and reportedly supported efforts to create an alternate slate of pro-Trump electors. News reports and his own interviews suggest that Mastriano got close to the “restricted zone” surrounding the Capitol, but there’s no proof he penetrated it. In a statement issued the day of the insurrection, Mastriano condemned the violence, said he never went “beyond police lines,” and that he “left the area” when he realized it was “no longer a peaceful protest.” He was subpoenaed by the House Select Committee—providing some information in response—and was also reportedly questioned by the FBI. 

The same advocacy group that challenged Cawthorn, Greene, Gosar, Biggs, and Finchem—Free Speech for People (FSFP)—sent a letter in March to the Pennsylvania Secretary of State urging him to strike Mastriano’s name from the ballot due to Section 3 disqualification. (FSFP’s legal director, Ron Fein, declined comment on whether his group will mount a fuller challenge.)

Most of what has emerged about Mastriano so far appears to be First Amendment protected expression. Even those allegations that might conceivably not be—like involvement in an alternate elector scheme—do not involve violence and would not, in themselves, amount to “engaging in insurrection.” I see no Section 3 case yet. 

Another figure worth taking a close look at it Couy Griffin. He is the founder of a group called Cowboys for Trump and a county commissioner for Otero County, New Mexico, since 2019. He was convicted last March, after a bench trial, of the misdemeanor of “entering and remaining” in a “restricted area within the U.S. Capitol . . . grounds” during the January 6 riot. U.S. District Judge Trevor McFadden found that Griffin had climbed three walls, stepped over a barrier of trampled snow fencing, and climbed the steps of the inaugural scaffolding to reach the Capitol’s West front. There, amid wafting fumes of oleoresin capsicum and pepper spray, he made a video that his organization sent out over Twitter. In it, he proclaimed:

It’s a great day for America! The people are showing that they’ve had enough. People are ready for fair and legal elections, or this is what you’re going to get, you’re going to get more of it. . . . We’re not going anywhere. We’re not gonna take no for an answer. We’re not going to get our election stolen from us from China.

These statements, in context, might conceivably constitute “words used in furtherance of [an] insurrection,” as Judge Beaudrot put it. That said, Griffin remained nonviolent that day and never entered the Capitol building—hence the mere misdemeanor charge. In fact, Judge McFadden went on to acquit Griffin of a second misdemeanor: “disorderly and disruptive conduct . . . which did . . . impede and disrupt the orderly conduct of Government business.” McFadden concluded, among other things, that when Griffin led the crowd in prayer with a bullhorn, he was “[a]rguably . . . trying to calm people down, not rile them up.”  Thus, Griffin’s lawyer can argue rhetorically—as he has in the Section 3 case against Griffin—“Griffin was acquitted of disorderly conduct on January 6. Yet he simultaneously committed ‘insurrection’?” That argument has some force.

Griffin’s term ends at the end of this year, so his case could become moot before it even plays out. In an email, Griffin says he is not running for reelection as county commissioner. He adds, however: “I am in discussion and prayer about holding a much higher position in a much higher office in Washington, D.C.”

And then there’s Trump. The factual case against Trump at this point is strong. Decision makers deciding whether he violated Section 3 will have two extraordinary federal court rulings for guidance.  

The first came down in February, when U.S. District Judge Amit Mehta declined to dismiss several civil cases against Trump brought by Capitol Police officers and members of Congress under the Ku Klux Klan Act. Those cases alleged that on January 6, Trump conspired to prevent, “by force, intimidation or threat,” federal officers from discharging their duties “in connection with the certification of the Electoral College [votes] and to prevent President-elect Joseph R. Biden and Vice President Kamala D. Harris from accepting or holding their offices.”   

In effect, these allegations accuse Trump of doing precisely what administrative law Judge Beaudrot said amounted to “engaging in insurrection”: issuing “marching orders or instructions to . . . disrupt or obstruct a particular government proceeding.”

One key question in that motion to dismiss was whether the allegations of the complaint could overcome the nearly insuperable protections afforded political speech by the First Amendment in landmark precedents like Brandenburg v. Ohio. After meticulously rehearsing the record of Trump’s statements in the months leading up to January 6, and subjecting his 75-minute speech on the Ellipse to a nearly line-by-line exegesis, Mehta found that “in this one-of-a-kind case the First Amendment does not shield the President from immunity”:

Having considered the President’s January 6 Rally Speech in its entirety and in context, the court concludes that the President’s statements that, “[W]e fight. We fight like hell and if you don’t fight like hell, you’re not going to have a country anymore,” and “[W]e’re going to try to and give [weak Republicans] the kind of pride and boldness that they need to take back our country,” immediately before exhorting rally-goers to “walk down Pennsylvania Avenue,” are plausibly words of incitement not protected by the First Amendment. It is plausible that those words were implicitly “directed to inciting or producing imminent lawless action and [were] likely to produce such action.” . . .

The prospect of violence had become so likely that a former aide to the President predicted in a widely publicized statement that “there will be violence on January 6th because the President himself encourages it.” Thus, when the President stepped to the podium on January 6th, it is reasonable to infer that he would have known that some in the audience were prepared for violence.  

The New York Times reported just last week that an aide to Vice President Pence also warned the Secret Service on the eve of Trump’s speech that Trump’s statements could pose a security risk to Pence.

Mehta concluded by alluding to a famous illustration used by the English philosopher John Stuart Mill to define the limits of free speech. Ordinarily, Mill wrote, expressing the “opinion that corn-dealers are starvers of the poor” would be protected speech. But saying the same thing “orally to an excited mob assembled before the house of a corn dealer” might constitute a sanctionable incitement to violence. Mehta wrote:

President Trump’s January 6 Rally Speech was akin to telling an excited mob that corn-dealers starve the poor in front of the corn-dealer’s home. He invited his supporters to Washington, D.C., after telling them for months that corrupt and spineless politicians were to blame for stealing an election from them; retold that narrative when thousands of them assembled on the Ellipse; and directed them to march on the Capitol building—the metaphorical corn-dealer’s house—where those very politicians were at work to certify an election that he had lost.

It is true that, in ruling on a motion to dismiss, Judge Mehta was assuming the truth of the allegations in the complaint, not making findings based on evidence presented. But it’s also true that almost all of the allegations he was discussing—the text of Trump’s speeches, rallies, and tweets together with the attack that ensued (captured from every angle on terabytes of video)—are uncontested.

The second extraordinary federal court ruling relevant to any Section 3 determination as to Trump was the one U.S. District Judge David Carter of the Central District of California issued in March. That ruling (which Lawfare wrote about at length here) was based on evidence, not allegations. There, Judge Carter found that Trump had “more likely than not” committed two federal felonies in the runup to the Capitol riot: corruptly obstructing an official proceeding (18 U.S.C. §1512(c)(2)) and conspiring to defraud the United States (18 U.S.C. §371).

To be sure, Carter did not find that Trump engaged in an insurrection, nor even that he incited violence. The crimes he was talking about revolved around Trump’s pressuring Vice President Pence not to count properly certified electoral votes that he knew to have been lawfully won by his opponent.

Yet the crimes Carter describes were furthered by the Capitol violence. Those criminal schemes, in fact, supply the motive for the insurrection. The purpose of the insurrection was to intimidate Pence and members of Congress and buy time so that state legislatures could “decertify” electoral college votes lawfully cast for Trump’s opponent. Carter includes Trump’s speech at the Ellipse as a key part of Trump’s scheme to “corruptly obstruct an official proceeding.” Carter’s and Mehta’s opinions dovetail.

The decisions about whether Trump’s name can appear on the presidential ballot will be made, in the first instance, by 51 different secretaries of state. It’s extremely likely that at least one of those election officials—perhaps quite a few—will find Trump disqualified under Section 3. And that will usher in a truly unprecedented and volatile situation.

For that reason, we are certain to see the search for a deus ex machina to sweep away Section 3 litigation intensify as the 2024 election cycle approaches.