Professor finds history on the side of Trump disqualification

Mark Graber, the Maryland law professor whose constitutional expertise helped disqualify from office a New Mexico man who joined the violent attack on the U.S. Capitol on Jan. 6, 2021, has concluded that Donald Trump’s words and actions fit the historic definition of an insurrectionist — strongly suggesting that he, too, should be barred from office.

In a brief submitted to the U.S. Supreme Court, Graber argues that the former president engaged in insurrection in its well-documented, well-understood meaning. Section 3 of the 14th Amendment clearly forbids anyone who engages in insurrection, after swearing to support the Constitution, from holding office.

Graber is the seventh Regents Professor in the history of the University of Maryland School of Law. He’s been teaching the Constitution for 30 years. He’s spent the last decade researching and writing about the history of the

14th Amendment and, specifically, Section 3. That section was the basis for the Colorado Supreme Court’s ruling in December that Trump is ineligible to be on that state’s 2024 ballot.

On Thursday, the Supreme Court is scheduled to hear arguments in the Colorado case. Based on all I’ve read about Section 3, I don’t see how Trump avoids disqualification. But he could, and a ruling in his favor will further polarize the electorate and further diminish the court’s credibility, if that’s even possible.

In his brief, Graber provides a solid history of how and why Section 3 came to be. For me, his brief settles the question of whether Trump needs to be convicted of a crime related to Jan. 6 to be barred from ballots.

Section 3 does not require conviction, but Trump’s defenders argue that his participation in the insurrection has not yet been legally established; only then could he be disqualified.

In the New Mexico case, Couy Griffin, a county commissioner and co-founder of Cowboys for Trump, was removed from office and disqualified from future elections after a federal judge found him guilty of entering a restricted area during the Capitol attack. That, Trump defenders say, is a threshold the former president has not crossed.

True. But, based on a reading of Section 3’s simple language, and Graber’s deeply researched brief, Griffin’s actual conviction should not have been necessary to bar him from office. There was plenty of evidence that he was an insurrectionist. His organization, Cowboys for Trump, had helped mobilize the “stop the steal” protest that led to the violent Capitol attack. Evidence at his trial showed that Griffin used a bullhorn on Jan. 6 to fire up Trump supporters against then-Vice President Mike Pence, whose role in Congress that day was to certify the results of the 2020 presidential election.

So Griffin’s actions fell within the historic definition of insurrectionist.

Same is true of Trump, says Graber.

“A legal consensus existed [in the 19th century] that a constitutional insurrection occurred when two or more persons by force and violence resisted the execution of any law for a public purpose,” his brief declares, noting the key differences between insurrection and mere protest, between an organized insurrection and a spontaneous riot.

Here are some other key points from Graber’s review of history and his conclusions:

The Colorado Supreme Court’s analysis of insurrection is consistent with history. An insurrection, under Section 3, is a concerted, public use of force, or the threat of force, by any group in an attempt to “hinder or prevent execution of the Constitution of the United States,” including the peaceful transfer of power. That’s clearly what happened on Jan. 6.

“A legal consensus existed when Section 3 was framed and ratified that persons [were] engaged in insurrections [when] they knowingly incited, assisted or participated in an insurrection.” In fact, says Graber, those who framed Section 3 “thought the persons who incited insurrections more blameworthy than the insurgents they inspired.”

The Colorado court correctly followed legal history when it determined, based on evidence, that Trump engaged in the Jan. 6 insurrection. An individual, says Graber, citing earlier opinions, “need not directly participate in an insurrection for the law to hold him accountable as if he had.” The Colorado court found that Trump tried to “aid and further a common unlawful purpose that he himself conceived and set in motion: prevent Congress from certifying the 2020 presidential election and stop the peaceful transfer of power.”

Trump’s lies about the election results and his support of frivolous lawsuits challenging them demonstrate that “his intention was to provoke a mob to interfere illegally and forcibly with the presidential transition process.”

Barring Trump from ballots, based on Section 3, will not create a “slippery slope,” as his defenders claim. “The parade of horribles in several of Trump’s amicus briefs,” Graber writes, “fail to acknowledge that insurrection was not politicized and insurrection prosecutions rarely occurred in the United States from the ratification of the Constitution [1788] until the end of Reconstruction [1876-77] when federal and state courts uniformly accepted the constitutional principles articulated by the Colorado Supreme Court.”

No example cited in “the parade of horribles,” from a member of Congress pulling a fire alarm to prevent a vote to skirmishes between Black Lives Matter demonstrators and police, are “remotely analogous to Donald Trump’s sustained and self-conscious effort to prevent illegally and forcibly the peaceful transfer of presidential power.”

I don’t see how Trump wiggles out of this one, except that he nominated three of the Supreme Court justices, and the court’s originalists are only so when they want to be.