Donald Trump’s campaign team is preparing for a state-by-state legal battle later this year over untested claims that a Civil War clause in the US Constitution barred the former president from appearing in the Republican primaries because of his role in the election of January. 6, 2021, uprising.
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Two nonprofits that do not disclose all of their donors, Citizens for Responsibility and Ethics in Washington (CREW) and Free Speech for People, have prepared multiple legal strategies to challenge Trump nationwide under Section 3 of the 14th Amendment . They have written letters to state election officials calling on them to block Trump from voting, while separately preparing voter lawsuits and Election Commission complaints.
Section 3 — ratified in 1868 to punish Confederate officials after the war — disqualifies any “officer of the United States” from future public office who, after taking an oath in support of the U.S. Constitution, “has engaged in insurrection or rebellion against” the country . Attorneys for both groups argue that Trump’s role before and during the Jan. 6 riot is evidence that he “participated in an insurrection,” a claim specifically endorsed by the House select committee that investigated the attack.
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“It’s a strategy designed to enforce the Constitution to stop Trump from running for president,” CREW lead attorney Donald Sherman said of the legal effort. “We have had two major uprisings in this country. One was the Civil War, which gave rise to Section 3. And one was January 6.
But there is little recent legal precedent to guide courts in applying Section 3. Opponents of the effort are likely to argue that state election officials have a ministerial role that does not allow them to exclude candidates under the Constitution, according to lawyers familiar with the issues. They will also likely argue that Trump was not involved in an “insurgency”, that Section 3 should not apply to a candidate before an election, and that an act of Congress is needed to enforce Section 3. Legal scholars have also raised questions about whether a former president who has never served in any other office counts as an “officer” under the clause.
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“What these undemocratic organizations are doing is blatant election interference and tampering,” Trump campaign spokesman Steven Cheung said in a statement. “They are not even trying to hide it anymore and it is sad that they want to rob the American people of electing Donald Trump – by far the overwhelming frontrunner – as their president. History will not judge them kindly.”
Opponents also warn of the damage judges or election officials would do to the election process if they intervened to deny Republican voters the ability to vote for Trump after much of the campaign season has passed. The Section 3 challenges can’t be filed until Trump applies for or gets access to the ballots by the end of this year, lawyers say, leaving the courts just a matter of months to decide the merits of the claim before votes are cast in the nomination battle.
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“The practical implications of this are the biggest disruption to our electoral system contemplated since the Civil War,” said James Bopp, a conservative lawyer who last year represented two members of Congress whose ballot access was unsuccessfully challenged under Section 3. On a practical level, this is so cynical and would it be so destructive, I think it is actually incomprehensible.”
The political implications of the upcoming fight, meanwhile, are difficult to predict. Several of Trump’s Republican rivals have indicated they will make Trump’s electability in the general election an issue, an argument that could be supported by courtroom drama over his role on January 6. Attorneys on both sides of the issue say that if a judge ruled that Section 3 applies in any state, the case would likely be immediately appealed in federal court and possibly forwarded to the Supreme Court for review.
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Efforts to remove Trump from the vote could also further bolster Republican support for the former president, following Trump’s boost in polling and fundraising that accompanied his recent indictment by a New York prosecutor this month on charges of counterfeiting from business records to hush money payments to an adult movie star. Republican rivals would also be pressured to file amicus briefs in support of Trump in the legal battle, Trump advisers claim.
“This is a textbook example of election interference. They are writing Donald Trump’s message himself,” said a Trump campaign adviser. “The real question is which court is going to give one of these states the ability to interfere in the US election process… We are well aware of the task ahead.”
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The adviser said the Trump team expects legal challenges in blue states such as California, New York, Connecticut, Oregon, Maryland, Massachusetts, Washington and Michigan. But the groups have not ruled out a much broader strategy, and some lawyers studying the issue have singled out North Carolina and Georgia as suitable targets for a Section 3 challenge.
Both CREW and Free Speech for the People are non-partisan nonprofits that are not required by law to disclose their donors, but they have a long history of working with Democratic policy priorities. LinkedIn founder Reid Hoffman, a major Democratic donor who opposes Trump’s re-election, has donated money to support Free Speech for the People’s work on the issue, according to a person familiar with the donation who spoke on condition of anonymity since the gift had not been revealed.
Free Speech for People also partners with Mi Familia Vota, a Latino voting group that ran ads against Trump in the 2020 election. The group has launched a campaign to put pressure on Colorado Secretary of State Jena Griswold, who is the president is from the Democratic Association of Secretaries of State, to prevent Trump from appearing on that state’s ballot due to Section 3, with an upcoming meeting scheduled for April 26. in Denver.
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Griswold’s office did not respond to requests for comment.
“The Latino community and the immigrant community became the number one target during his administration,” Mi Familia Vota executive director Hector Sanchez Barba said. “This is so important to us as an organization.”
Ron Fein, Free Speech for People’s legal director, said his group has been reaching out to election officials in all states to prepare the groundwork for legal challenges. He helped lead Section 3 challenges against Representatives Madison Cawthorn (RN.C.) and Marjorie Taylor Greene (R-Ga.) last year. The Cawthorn case was dismissed after he lost his primary for re-election, and the Greene case ended in defeat when a judge ruled that her actions after taking the oath of office did not constitute participation in an insurrection.
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Fein said the fact pattern about Trump’s role is clearer on Jan. 6.
“Our goals are to compel Donald Trump to answer questions under oath about his involvement in the January 6 uprising, and to obtain court rulings disqualifying him from holding public office and barring him from the ballot.” Fein said in a statement.
CREW last year successfully represented a group of New Mexico residents in a case that ended when a state judge disqualified Otero County Commissioner Couy Griffin from office under Section 3 for his role in the January 6 events. The judge ruled that Griffin was “engaged in rioting” by working to mobilize people for violence in the Capitol, breaking through the barricades of the Capitol police and then joining the crowd amid chants as they attacked the building. The New Mexico Supreme Court rejected Griffin’s appeal of the ruling.
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Free Speech for People has since produced a statement that secretaries of state could use to bar Trump from the vote. The draft notes that Congress has described January 6 as an uprising, as have multiple courts across the country. The draft also cites legal precedents from 1869 and 1871 that, like the New Mexico court, ruled that a person need not commit violence to be found involved in an insurrection.
Gerard Magliocca, a law professor at Indiana University, has written extensively about Section 3, advising both groups that are now trying to apply the clause to Trump. He has noted that Section 3 was clearly applied to Jefferson Davis, the former president of the Confederate States, who did not personally fight in the Civil War and was not convicted of a crime.
Magliocca said the Justice Department’s ongoing investigation into Trump for his role in the January 6 attack could also play a role in how courts, including the Supreme Court, view the Section 3 claim.
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“I think there will be some court decisions that say he’s ineligible,” Magliocca said. “If he’s indicted in these other cases, it increases the chances of finding five judges willing to disqualify him.”