Earlier this week, I published an essay on Slate (the title’s a bit dramatic but writers don’t write their titles) about the argument being advanced by many lawyers that Donald Trump is not “qualified” to be elected President because he committed acts of “insurrection or rebellion” under Section 3 of the 14th Amendment. I think the argument is elegant and informed. I don’t think it should be relied upon by the courts to disqualify Donald Trump.
The reason is grounded both in a sense of the meaning of “rebellion or insurrection” and in the unique sense of contest that any fight over an election is. As I tried to summarize the argument, “Section 3 cannot [I should have said, “should not”] police a contest over an election.” The intuition is that it should not be “insurrection or rebellion” to participate in an election, and contest the results till resolved. That such participation is, in a critical sense, to accept the order, not to reject it. But that doesn’t mean that one can’t be criminally liable (under ordinary criminal law) for violence either caused or commanded. It is instead to say that the act of contesting results until resolved is not “insurrection or rebellion,” unless one intends the violence that the contest inspires.
This doesn’t mean that there couldn’t be insurrection within an election. If a group banded together — at a candidate’s request — to attack a group of voters, to keep them from the polls, that’s insurrection, even without a plan to take over the government. Anyone participating in such an act should bear the restriction of Section 3. That act is a breach of the election process. It is outside the election process.
Likewise, had Trump continued after the January 6 vote (when the election was resolved) to try to mobilize to “stop the steal,” and had those efforts produced violence, that too would be “insurrection” within the meaning of the act. For that too would be a denial of the election itself, a refusal to accept its results and the use of force to bring about a different result.
But if a candidate intends solely to invoke the process of an election contest to try to prevail, acts within the scope of that purpose should, in my view, be privileged from the reach of Section 3. That doesn’t mean, again, they’re privileged from any criminal consequence. It means simply that they don’t constitute acts that should be considered “insurrection or rebellion” under Section 3 — so long as there is not intent to trigger violence meant to coerce an improper result.
So then why doesn’t Section 3 reach Trump?
Trump’s team advanced an argument about the Vice President’s power that was, in my view, plainly incorrect. No doubt, it had support in the work of various academics, and a plausible textual basis (if you ignored the actual history of how Presidents had been elected since 1796). I’m not sure whether the argument was more or less crazy than the argument the Supreme Court ultimately adopted in Bush v. Gore about the Equal Protection Clause. Both arguments, in my view, are and were wrong. One just (now) has the Supreme Court behind it.
When the Pence gambit failed (because decent souls within the VP’s office, supported by Judge Luttig, convinced the VP that the argument was wrong), Trump’s supporters (working with him) shifted to a different strategy — objecting to the ballots of certain states, on the grounds that Congress was the proper forum, as the former Law Professor Senator from Missouri put it, to evaluate claims of fraud in the election. That argument is just as baseless as the argument about the VP's power. And I’m quite certain that the insistence by Hawley and Cruz encouraged the protesters who demanded Congress “stop the steal.” But here again, this was, in my view, a wrong argument made to support the case that the election had been wrongly decided. It was again within the terms of an election contest, however baseless the merits of its argument. Hawley and Cruz did not intend the breach their words may have induced.
If the protesters had remained peaceful on January 6th, no one would be talking about Section 3 today. It is their violence that then shifts attention back to the question — who is responsible for triggering that violence? And while, again, I am perfectly happy to see criminal law applied to determine culpability, it is certainly the case that Trump did not want nor intend that violence to occur. That it did totally defeated any chance that he would ultimately prevail. So as that could not have been his purpose, I don’t think Section 3 should deem that consequence “insurrection,” even if, again and again, a different standard would apply under criminal law.
What then could transform it into insurrection? If Trump intended to induce Congress to delay resolving the contest on January 6, ideally by (unconstitutionally) sending the decision back to the states for a second look, and while that was happening, attracted a significantly larger crowd to DC, to have the capacity to realistically coerce the election officials, and then once that capacity was assembled, he would offer a deal to defuse the conflict (which he had helped to orchestrate), that in my view would push the resolution outside the contours of an ordinary contest; it would shift it from a lawyers argument to argument of force majeur. It would be the coercion of a result, not an argument for one result over another.
Who knows what would have happened had he succeeded in amassing a million people around the Capitol. (And who knows what any of us would have done had that million actually coerced Congress to flip the results). But in my view, those facts would shift this from a fight within the election to a fight about the election. It would shift it, in other words, to insurrection rather than simply a vigorous (and often flatly wrong) legal contest.
So then why do we need this space of privilege? What good is done with a space where Section 3 would not apply in the way the ordinary law of “insurrection” might?
There are so many examples of lawyers advancing crazy arguments in the history of presidential elections, and some that triggered actual or threatened violence. Anyone old enough to remember Florida in 2000 will recall the Brooks Brothers protest, when (mainly) white male protesters in khakis and button-down shirts gathered to intimidate the poll workers who were counting the vote. To watch their screens and threatened violence was terrifying — and no doubt what they were doing was wrong. But if every wrong argument triggering violence transforms into insurrection, the incentives of the election game change substantially. For sure, the incentives to get it right might be greater. But so too the incentives to destabilize. It is those incentives that I think we should fear most.