Some legal experts believe that the constitutional amendment disqualifies Trump from holding office again, a theory likely to be tested in court this year
A growing number of critics of Donald Trump are embracing a long shot legal strategy by arguing that the former president should be barred from holding office again based on a Reconstruction Era amendment to the U.S. Constitution.
Advocacy organization CREW — Citizens for Responsibility and Ethics in Washington — was the latest to make the argument when it filed a lawsuit Wednesday in Colorado, seeking to block Trump from appearing on the state's ballot based on the 14th Amendment.
Section 3 of the Constitution's 14th Amendment states that anyone who has previously sworn an oath to support the Constitution of the United States, and who has "engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof" can be disqualified from holding future federal or state office.
Trump, who is handily leading the polls among Republicans running for president in 2024, has argued on social media that there is “no legal basis” for barring him from the presidency.
But some disagree.
In announcing its lawsuit Wednesday, CREW argued that, in January 2017, Trump "stood before the nation and took an oath to 'preserve, protect and defend the Constitution of the United States.' After losing the 2020 presidential election, Donald Trump violated that oath by recruiting, inciting and encouraging a violent mob that attacked the Capitol on January 6, 2021 in a futile attempt to remain in office."
Trump has not been convicted of a crime for his role in the attempted insurrection in Jan. 2021, though he was quickly impeached by the U.S. House of Representatives (and later acquitted by the Republican-controlled Senate).
In August 2023, he was indicted on four federal felony charges over his striking attempts to overturn the election — which include the events leading up to Jan. 6, 2021. He pleaded not guilty and is currently awaiting trial.
Still, Trump — who lost both the popular vote and the Electoral College vote to Joe Biden in 2020 — has continued to publicly insist that he won the election.
Legal experts say that the 14th Amendment is vague, noting that it's only been used a handful of times in the country's history (including at least twice to bar Confederates from holding office after the Civil War).
But the organization suing to block Trump from holding office in Colorado — CREW — has used it effectively in the past, and was behind the successful push to get a Jan. 6 rioter removed from his elected position as a county commissioner. In that instance, Trump supporter Couy Griffin (who was convicted of trespassing in the Capitol last year) was removed from office on 14th Amendment grounds.
The ruling was the result of a lawsuit seeking Griffin’s removal, which alleged that he violated a clause in 14th Amendment of the Constitution by participating in an “insurrection” against the US government.
The newest lawsuit is not the first time the 14th Amendment has been brought up in discussions of Trump.
In its 845-page final report released in 2022 , the bipartisan House committee that investigated the Jan. 6, 2021 Capitol riots recommended that Congress "consider creating a formal mechanism for evaluating whether to bar those individuals identified in this Report under Section 3 of the 14th Amendment from holding future federal or state office."
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As CREW President Noah Bookbinder said in the group's news release Wednesday, it's rare to attempt to block someone's access to the ballot — especially someone who served as president once before.
“While it is unprecedented to bring this type of case against a former president, January 6th was an unprecedented attack that is exactly the kind of event the framers of the 14th Amendment wanted to build protections in case of," Bookbinder said. "You don’t break the glass unless there’s an emergency.”
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