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Insurrectionists loyal to President Donald Trump breach the Capitol building in Washington
Insurrectionists loyal to President Donald Trump breach the Capitol in Washington on Jan. 6, 2021. (AP file photo: John Minchillo)

Perspectives: January 6th redux: ‘insurrection’ ineligibility

“We love you, you’re very special.”

 President Donald Trump, Jan. 6, 2021, asking insurrectionists to “go home” after ransacking the Capitol

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“It’s a disgrace what law enforcement authorities have done to them.”

Former President Trump, Sept. 1, 2022, Commenting on legal proceedings against Jan. 6 rioters

It’s almost two years to the day since a large group of criminals, goons and other miscreants, inspired by then-President Donald Trump, stormed Congress in the U.S. Capitol on Jan. 6, 2021, in an attempt to prevent the certification of the 2020 presidential election of Joe Biden and maintain the Inciter-In-Chief in office.

Hundreds of those insurrectionists — or in the words of one congressional supporter, some “normal tourist” visitors — have already been processed through the justice system for a variety of crimes, and others still have their cases pending. For his part, the presidential instigator remains under investigation for his role in that event and a myriad of other election-related actions. While being investigated and undergoing that scrutiny, he remains a viable — indeed the only announced — contender for the presidency in 2024 following his declaration of candidacy in mid-November.

It has been well documented that his being charged, convicted, and even incarcerated for any of those misdeeds would not bar him from the presidency. E.g., Stefanie Lindquist, “No, an indictment wouldn’t end a run for presidency,” in the November 28, 2022, edition of Minnesota Lawyer. But there is one judicial determination that could accomplish that objective: a ruling that he committed, or aided others, in an insurrection, pursuant to rarely invoked provision of section 3 of the 14th Amendment to the U.S. Constitution. That provision, once obscure, has drawn a great deal of attention lately in analyzing and assessing the issue of President Trump’s eligibility to serve again.

The post-Civil War 14th Amendment is best known for its Citizenship, Privileges and Immunities, Due Process, and Equal Protection clauses, but it’s third section bars individuals from holding any federal position if they have “engaged in insurrection or rebellion … or given aid or comfort” to those who have done so.

Confederate & cheerleader concerns

The measure was, of course, directed to former officials who were involved in the Confederacy during the Civil War, although many of them were able to regain their status and stature as a result of the Amnesty Act of 1866 and, six years later, an expanded amnesty provision late the first term of President Ulysses S. Grant, the Union victor in the Civil War, that made almost all of them eligible for office, and the last few subject to prohibition made eligible in 1898, 33 years after Appomattox.

The House of Representatives has referred to the Justice Department for potential prosecution four possible statutory violations, including 18 U.S.C. 2383, which parallels the 14th Amendment, Section 3 clause. That measure makes it a felony, punishable by up to 10 years imprisonment and a monetary fine for one who “incites, sets afoot, assists or engages in any rebellion or insurrection … or gives aid or comfort” to others, although it lacks a disqualification provision like the 14th Amendment.

But that contemplates a criminal proceeding under the statute subject to the heightened burden of proof beyond a reasonable doubt and other obstacles that may make prosecution difficult and conviction problematic.

Meanwhile, the disqualifying clause lay dormant for well over a century until it flared up again in a pair of proceeding last year, raising concerns about the eligibility of a pair of members of the House of Representatives who were insurrection cheerleaders. One of them, the voluble Georgian Marjorie Taylor Greene, was the subject of an effort to bar her from seeking re-election last year under that provision, but a state court judge in Georgia dismissed the proceeding. Similarly, North Carolina Congressman Madison Cawthorne, faced a challenge under the 14th Amendment in federal court in North Carolina, which he, too, managed to overcome, although he was defeated in the primary by a Republican who went on to take his seat in the fall election.

Otherwise, the provision has not been known, in modern times, to have been raised as a bar to any government official, elected or appointed. But the disqualifying provision may be awakened from slumber for former President Trump.

Myriad matters

Proceedings to deem the former president ineligible for office may have to come through a separate case, although it conceivably could occur if he were to be convicted in connection with a Jan. 6 crime. But, again, it would take some kind of independent determination of his participation in an “insurrection” to activate the provision. That raises the question of whether a free-standing proceeding might be viable to seek a determination of his ineligibility under that clause. Contemplating that approach raises a myriad of issues, both procedural and substantive.

A pair of threshold considerations are whether a case can even be brought and, if so, by whom. If a 14th Amendment case were to be brought, it presumably would be a civil action, subject to the usual civil rules of evidence, burden of proof, and related matters. But when could it be brought? While the former president has declared his candidacy, he still has a potentially long road to achieving the nomination and being placed on a ballot on any state. But even before then, he would have to weigh through primaries in various states, including here in Minnesota, which would require him to be on state official ballots, in order to invoke 14th Amendment consideration.

The issue of ripeness, however, looms. The ripeness principle is a fundamental feature of the ability of federal courts to adjudicate litigation under the “Cases and Controversy” clause of Article III of the U.S. Constitution. The doctrine, which relates to the timing of litigating civil litigation, requires an actual controversy presenting a threat that is real and immediate, to activate judicial adjudication. Renne v. Geary, 501 U.S. 312, 320 (1991). Under that tenet, civil litigation is not justiciable and cannot be brought contingent on future events that “may not occur as anticipated or … at all.” Texas v. United States, 523 U.S. 296 (1998).

Minnesota law follows similar principles in dealing with ripeness issues. E.g. Lee v. Delmont,228 Minn. 101, 36 N.W.2d 530, 537(Minn. 1949).

It would appear, therefore, that litigation seeking a 14th Amendment declaration of ineligibility as to the former president’s candidacy might be premature until such time as he files to become an official candidate on a state ballot, even a primary one.

Efforts to bar him from candidacy failed in 2020 under California law that required disclosure of tax returns in order to be a candidate in California, a measure that both federal and state courts in that state deemed impermissible because they went beyond the requirements of the presidency under Article II, § 1 of the U.S. Constitution:  35 years of age, natural born citizen of the United States, and 14 years of residency in this country. Although the California case — Patterson v. Padilla, 8 Cal. 5th 220 (Cal. 2019) — turned on other issues, the basic principle that eligibility requirements cannot be added to or detracted from the constitutional requirements stems from Supreme Court cases rejecting the imposition of term limits on members of Congress in U.S. Term Limits v. Thornton, 519 U.S. 779 (1995).

The flip side of that issue arose in Minnesota during the primary season in 2020 when the Republican Party refused to allow any candidates besides Trump to be printed on the ballot, a determination that the state Supreme Court upheld on grounds that the parties operate as private entities in that capacity. De la Fuente v. Simon, 19 N.W.2d 445 (Minn. 2020).

But even if the “ripeness” issue could be addressed in a pre-electoral challenge on grounds that it there is a real likelihood that he will become eligible for presidency, even if he is not yet on an official ballot. That matter may have to await his actual filing for actual candidacy in a particular state during the primary season.

Related to the “ripeness” issue is that of standing, which requires that the claimant have suffered an actual, imminent injury, not one that is conjectural or hypothetical, under the doctrine espoused by the high court in Lujon v. Defenders of Wildlife, 504 U.S. 555 (1992) and in Minnesota, pursuant to Hubert H. Humphrey v. Phillip Morris, Inc., 551 N.W.2d 490, 491 (1996).

The question therefore would become who could bring a lawsuit of that nature.

Those related issues of ripeness and standing could be addressed in a declaratory judgment action brought in federal court under the Uniform Declaratory Judgment Action, 28 U.S.C. 2201. A parallel provision exists in Minnesota, under Minn. Stat. § 555.01, which authorizes judicial resolution of the parties in connection with an unresolved controversy.

Hypothetically, an eligible voter or a coalition of them, could bring such a declaratory judgment action in Minnesota, under either federal or state court provisions, challenging the ex-president’s eligibility to serve seeking a determination of the “insurrection” claim. Alternatively, the secretary of state, Steven Simon, could take on the task in connection with his duties of official overseer of elections in this state.

Overcoming obstacles

 If these particular obstacles can be overcome, which is far from certain, there are substantive issues that would need to be addressed.

This could constitute the meaning of “insurrection” and how the facts bear out the former president’s culpability for such behavior. Additionally, the term “engaged” in the ineligibility provision could come in to play in a determination of whether the former president’s behavior reaches that level. These determinations would, as indicated, probably be made in a civil context, subject to the preponderance of evidence rule, although it could be argued that given the nature of the case, a higher level of evidentiary proof, such as clear and convincing evidence might be more appropriate, short of the beyond the reasonable doubt standard in a criminal case.

These issues and other questions hover over the former president’s effort to return to the White House. While a 14th Amendment proceeding might be brought anywhere, that begs the question: Why not in Minnesota?

PERSPECTIVES POINTERS

Other key provisions in 14th Amendment

  • All persons born or naturalized in the United States are citizens. 
  • States may not abridge privileges or immunities of citizens: No deprivation of life, liberty or property without Due Process; no denial of equal protection of the law.
  • Debts incurred by confederacy are not payable. 
  • No claims for loss of emancipated slaves or property.

Marshall H. Tanick is an attorney with the Twin Cities law firm of Meyer Njus Tanick.

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