In Colorado and Maine, state officials have decided to remove Donald Trump from the primary ballot, claiming the need to protect democracy. A number of other states, including Arizona, Nevada, Oregon, New Mexico, and New York, are considering taking the same step.
Many who oppose the 45th president hail these legal maneuvers as a neat way to stop Trump—who they view as an existential threat to the country—without having to beat him at the ballot box.
I am firmly opposed to Trump’s candidacy. While I think it is critical the Biden administration be beaten at the polls, Trump is not the answer. He is not capable of winning the decisive victory Republicans need to advance conservative principles. And his truculent, petty, and toxic persona—unconstrained by any need to face the voters again—will damage the country.
But I also believe that the efforts to knock him off the ballot are legally untenable, politically counterproductive, and, most ominously, destructive of our political order. The Supreme Court needs to act swiftly to strike down these foolish decisions.
These efforts are legally insupportable.
Two weeks ago, Colorado’s Supreme Court upheld a lower court opinion that Trump’s actions on January 6, 2021, constituted “engaging in insurrection.” The state’s Supreme Court ruled that, because the Fourteenth Amendment bars former officials from holding office again if they violate their oath of office by “engaging in insurrection,” Trump was disqualified from serving again as president—and thus should be removed from the presidential primary ballot.
Then, a few days ago, Maine Secretary of State Shenna Bellows, relying largely on the record in the Colorado proceeding, found that the “preponderance of evidence” showed that the attack on the capitol amounted to an “insurrection.” Though she acknowledged that the question of whether Trump personally engaged in the insurrection was a “closer one,” she concluded that the weight of evidence established that he “used a false narrative of election fraud to inflame his supporters and direct them to the Capitol to prevent certification of the 2020 election and the peaceful transfer of power.”
As a legal matter, states do not have the power to enforce the disqualification provision of the Fourteenth Amendment by using their own ad hoc procedures to find that an individual has engaged in an insurrection. If the Justice Department, in pursuing its criminal case, had found that Trump had engaged in insurrection, it would be another story. But it has not.
Section Three of the Fourteenth Amendment was ratified in 1868. Its immediate aim was to bar former officials from holding office again if they had betrayed the Union by serving in the Confederacy. Section Three states that if a federal or state officeholder, having taken an oath to support the Constitution, “shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof,” that person is disqualified from holding federal or state office. Section Five of the amendment goes on to grant Congress the power to enforce this provision “by appropriate legislation.”
These provisions would be easy to apply if the person in question was already convicted of engaging in insurrection or rebellion. But how is it to be applied to someone—in this case, Trump—who has not been tried in court and found guilty of such acts?
Obviously, there has to be a fair fact-finding procedure before someone can be branded an insurrectionist. But what should that process be? The Fourteenth Amendment is silent on this. The terms “insurrection” and “engaging” are mushy. When does a public disturbance become an insurrection and when does an individual’s level of involvement amount to “engagement”? What is the standard of proof required? Is it evidence beyond a reasonable doubt, which is what would be required to convict someone for the crime of insurrection, or mere preponderance of the evidence? Does the accused have the right to cross-examine witnesses and to compel witnesses to testify? Does the accused have the right to a jury? Or can a single judge or election official make the final ruling?
The key issue is who gets to set these procedural and definitional rules. Is each state free to make up its own rules? Or is it Congress’s job to set up a uniform enforcement mechanism?
These questions were answered in 1869—the year after the amendment was adopted—by then-Chief Justice of the Supreme Court Salmon Chase. In the seminal case of In re Griffin, Chase, acting as presiding judge for the circuit court in the District of Virginia, rejected a defendant’s claim that his conviction was void because it had been entered by a judge who had been a Confederate official and thus disqualified from holding judicial office. Chase ruled that Section Three of the Fourteenth Amendment is not self-executing. That is, it cannot be enforced unless and until Congress enacts legislation that sets up an enforcement mechanism. And Congress, in 1869, had not implemented any such enforcement procedure. In other words, Congress—not the states—gets to decide how individuals are disqualified from office under the Fourteenth Amendment.
In fact, Congress did decide. It did so the year after Justice Chase’s decision when Congress enacted the Enforcement Act of 1870. That law contained two provisions for the expressed purpose of enforcing Section Three. One provision set up a mechanism by which federal attorneys could bring a civil action to remove from office a person alleged to be disqualified for engaging in insurrection or rebellion. (This provision was repealed in 1948.) The second provision authorized criminal prosecution of someone for knowingly accepting or holding office in violation of Section Three. This provision has evolved into Section 2383 in the current criminal code, which makes it a crime to engage in rebellion or insurrection against the United States and disqualifies anyone who does from holding federal office.
The point is that in present-day America, under existing law, the only way to disqualify someone under Section Three is through criminal prosecution under Section 2383. The federal government, which has painstakingly examined the events of January 6, has not charged President Trump with insurrection or even incitement.
Even if, contrary to this analysis, Section Three is self-executing and states are free to adopt their own ad hoc enforcement procedures, Colorado’s and Maine’s actions do not pass legal muster.
An individual must be afforded due process before the government can deprive him of an important right—like the right to pursue public office. In the cases of Colorado and Maine, President Trump was plainly denied due process. Indeed, as one of the dissenting Colorado justices said, the court proceeding was a “procedural Frankenstein.” In neither case was Trump afforded a jury, the ability to cross-examine the evidence introduced against him, or ability to subpoena witnesses. Much of the evidence introduced was hearsay or conclusory statements from congressional hearings which did not allow for an adversarial process.
Ad hoc disqualification by the states is bad policy.
The half-baked processes in Colorado and Maine underscore the wisdom of Chief Justice Chase’s conclusion that enforcement of Section Three must be restricted to the mechanism enacted by Congress. Our national elections could collapse in chaos if each state was able to disqualify a national candidate using its own procedures and evidentiary standards, and its own definition of what it means to engage in insurrection.
During the Vietnam War, for example, protesters would shut down recruitment offices or otherwise act to interfere with the war effort. Would this constitute “insurrection”? Under the definition embraced in Maine, it easily could. So could some of the violent actions taken against law enforcement by leftist demonstrators during the summer of 2020. And the potential disruption to our government goes far beyond presidential candidates. Every officer holder, state or federal, in any branch of government, can be challenged if states are permitted to enforce Section Three willy-nilly.
What is especially concerning in the Trump case is that the states are permitting disqualification based on mere preponderance of the evidence, whereas the enforcement mechanism enacted by Congress—prosecution for insurrection—requires a criminal conviction based on proof beyond a reasonable doubt. The higher standard of proof is essential in this context because a political figure is being punished in connection with activities that, absent a finding of wrongful intent, lie at the heart of the First Amendment: challenging election results. Allowing states to make these decisions based on a lower evidentiary standard will have a serious chilling effect on legitimate election challenges in the future.
If Trump is to be held legally accountable for his actions on January 6, 2021, it should be through the pending federal prosecution that focuses on those actions. Period.
As a prudential matter, I am not sure it was wise to bring that case. But now that it has been brought, I believe it is in the public interest to have it tried before the election if possible. That trial must be thorough, afford due process, and reach sound conclusions about Trump’s role and whether any of his actions amounts to a crime. The case will reveal a massive amount of direct evidence bearing on Trump’s actions and his state of mind that day—facts that bear directly on his fitness for office. The voters can take all this into account.
These bans are destructive of our political order.
I do not want Trump to get the GOP nomination. But he has to be beaten at the ballot box—not by subverting the basic systems of our democracy.
The effort to use the Fourteenth Amendment to knock Trump off the ballot is much like the left’s previous schemes to sidetrack or defeat Trump politically through legal ploys that stretch the law beyond its proper bounds. And like Russiagate; or the civil and criminal cases currently being prosecuted against Trump by New York; or the overbroad prosecution being pursued by the Georgia district attorney; these gambits are rightly seen as unfair.
Such tactics undercut the credibility of legitimate efforts to hold Trump accountable, and they fix in much of the public’s mind the image of effete elites trying to game the system.
What’s more, they have only helped Trump and hardened support for him. Trump feeds on grievance like fire feeds on oxygen. The actions of Colorado and Maine, and other states that follow suit, are not only doomed to legal failure, they also embolden and empower the former president.
We are living through a time of deep divisions and powerful passions in the country. A fundamental purpose of democratic order is to provide an arena where opposing positions and passions can peacefully contest with each other. In short: to substitute ballots and due process for bullets. Nothing is more destructive of democracy than for one faction to try to win in the political arena by disenfranchising its adversaries.
The election of 2024 already will pose the gravest of challenges to our political institutions. Such extrajudicial and unconstitutional measures will only take us down far more dangerous channels.
William P. Barr served as U.S. attorney general under President George H.W. Bush (1991-1993) and again under President Donald Trump (2019-2020). He is the author of One Damn Thing After Another: Memoirs of an Attorney General.