On Monday March 4th, the Supreme Court reversed Colorado’s decision to remove President Trump from the ballot. The Court unanimously held that individual states cannot bar insurrectionists from holding Federal office under Section 3 of the Fourteenth Amendment. Five Justices went further, ruling that Congress alone may enforce Section 3. In this episode, constitutional scholars Mark Graber of the University of Maryland Law School and Michael McConnell of Stanford Law School join Jeffrey Rosen to discuss the Court’s 9-0 decision to avoid a chaotic “patchwork” of state-level ballot eligibility decisions and the 5-4 majority’s view that Section 3 requires Congress to act before an insurrectionist may be disqualified from office.
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Today’s episode was produced by Bill Pollock, Samson Mostashari, and Lana Ulrich. It was engineered by Bill Pollock. Research was provided by Samson Mostashari, Cooper Smith, and Yara Daraiseh.
Participants
Mark Graber is the Jacob A. France Professor of Constitutionalism at the University of Maryland School of Law. He recently authored Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform After the Civil War. Mark wrote an amicus brief in support of the State of Colorado.
Michael McConnell is the Richard and Frances Mallery Professor and Director of the Constitutional Law Center at Stanford Law School, and a Senior Fellow at the Hoover Institution. He has published widely in the fields of religious liberty, equal protection, and separation of powers.
Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also a professor of law at The George Washington University Law School and a contributing editor of The Atlantic.
Additional Resources:
- Trump v. Anderson (2024)
- Mark Graber, “Trump’s apologists say it doesn’t matter if he’s guilty of insurrection. That’s not true”, The Guardian, (March 5, 2024)
- Mark Graber, The Forgotten Fourteenth Amendment: Punish Treason, Reward Loyalty (2023)
- Michael McConnell, “Is Donald Trump Disqualified from the Presidency? A Response to Matthew J. Franck”, Public Discourse, (Jan. 18, 2024)
- Prof. Michael McConnell, Responding About the Fourteenth Amendment, “Insurrection,” and Trump, Volokh Conspiracy (Aug. 2023)
Excerpt from Interview: Graber criticizes the court for lacking historical insight and argues against the court's decision that Section 3 is not self-enforcing. He refutes the idea that prosecuting Trump under a different statute constitutes enforcing Section 3.
Mark Graber: This court contends that it relies a lot on history, it's a period I've studied, I do not know the historical answers to some of the additional questions the court reached out on. They aren't in the briefs, there are policy questions about what the court reached out on, they are not in the briefs, so we're all left puzzling, is it right? People ought to be able to argue these things, at least the court give the pretense of listening to the historical arguments, the policy arguments, the aspirational arguments, instead it seemed they wanted to sort of shut things down. And in many ways, say the court is the primary enforcer of Section 3 of the 14th Amendment where it's highly probable based on the debates that the persons responsible for the post-Civil War constitution thought Congress. So to limit Congress in an issue where Congressional power has not been exercised is a funny thing for the courts to do.
...
Jeffrey Rosen: Mark responses to the claim that the Biden administration could always prosecute President Trump as an insurrectionist, and then your thoughts on whether or not the court was right to hold that Section 3 is not self-enforcing.
Mark Graber: Well, prosecuting Trump under a different statute, is not enforcing Section 3, it's enforcing the criminal law of the United States. It's important to understand that the Andrew Johnson administration was not bringing treason prosecutions, and everybody knew this. So with Section 3 dependent on presidents bringing insurrection prosecutions, it was a dead letter at day 1, so clearly they meant something else, and the reason why prosecutors bring charges, sometimes I say, This is what we can prove before a jury because it's less complex, it doesn't mean. They think a person is not guilty of X or Y when they say it's Z, it means for lots of reasons, including simply what's the simplest to explain to a jury. We go for Z, it's well known, a person can be found not guilty of a criminal offense, but libel under a civil offense, and all this. The framers understood. Framers understood Presidents might not prosecute, they explicitly said there might be a congress uninterested in implementing Section 3, but they still want Section 3 to be on the books and who could enforce it otherwise.
The states it'll note, Trump was asked in the Colorado proceeding, "Do you need more?" He said "No." If Donald Trump was a poor African-American whose public defender failed to raise issues, people would say It is waved. You can't raise it again, Donald Trump had every opportunity to say, "This is a shambolic proceeding." He didn't. He presented the evidence he wanted to present, and now he's claiming the rules that apply to every other criminal defendant in the country, don't apply to him.
McConnell suggests enforcing legislation like the 1870 Enforcement Act to challenge qualifications for office. He argues against labeling January 6th as an insurrection, noting the absence of charges for it and Trump's legal caution in his speech.
Michael McConnell: Let me take your last question first. So what would legislation look like? I think it might look a lot like what Congress passed in 1870 in the Enforcement Act, which provided that the Department of Justice would bring a civil action, this is, actually, there were two provisions, one was criminal and one civil, but let's focus on the civil, a common writ of Quo Warranto which is used to challenge someone's, qualifications to serve an office. And they would bring an action in court, and then, all the evidence would be presented and you'd get a decision that could then be appealed up. I think Congress in 1870 was, that was a perfectly reasonable way of enforcing the statute, it got repealed in 1948 in a kind of thoughtless way when they were re-codifying the statutes.
Nobody really focused on this, but I think the reason why nobody focused on it is that most people believed, and I think most people believed until last year that Section 3 was about confederates, and there weren't any confederates around anymore. And so it was no longer a relevant provision. I think that's not right, I think it does look forward, but I think it is understandable how people read it the other way. I think that's a perfectly sound way of enforcing it. Now, you ask about the particular day, was it an insurrection? And did Donald Trump engage in it? Well, no one was charged, insurrection is a crime, there've been what, I forget the number now, but a very large number of prosecutions of people who participated in January 6th.
None of them were charged with insurrection. My guess is that that's because the Justice Department concluded that what they did wasn't approvable, insurrection. An insurrection is when you think about, the only one we really know is an insurrection is a civil war and it's a widespread attempt to overturn the government, and January 6th looks like a protest that turned into a riot and got completely out of hand, it doesn't look like anybody actually trying to overthrow the government, with a couple of small exceptions, people weren't even armed, their intention was to try to put pressure on Congress to vote the way they wanted to on the, electoral college, that doesn't look like an insurrection. But even if, and if it were, I think the Justice Department would've charged it.
'Cause they brought all kinds of creative, aggressive legal theories, even Sarbanes-Oxley of all things. So they didn't mind stretching the envelope on charges, but they didn't bring an insurrection charge. And then there's Donald Trump, he wasn't even there. I've listened to his inflammatory speech at the ellipse and I've listened to it several times, and I blame him morally for what happened, I think if it weren't for his throwing gasoline on this fire, the fire wouldn't have happened, but he was careful in what he said, he told them to be there, to be peaceful. I think he was kind of lawyered up for his speech and did not actually, step over any kind of a legal line that would make him liable. Even for, I think he was worried about incitement, that was actually the criminal charge I think he was worrying about. And I think he was careful not to step over that line. And right after the event, there were a number of legal analyses by people extremely hostile to Mr. Trump, but on the subject of incitement and explaining why it would be a bad precedent to treat him as having incited the riot. But insurrection is yet a higher burden, even than that.
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