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Jamelle Bouie
By Jamelle Bouie
Opinion Columnist
While we await oral argument in Trump v. Anderson — the Supreme Court case that will evaluate the Colorado Supreme Court’s decision to exclude the former president from the state’s Republican primary ballot — it’s worth revisiting the arguments leveled against the Colorado court’s decision and, by extension, its interpretation of Section 3 of the 14th Amendment to the U.S. Constitution.
The first and most important one is that the plot to overturn the results of the 2020 presidential election, culminating in the Jan. 6 attack on the United States Capitol, was not an insurrection. Related to this is the argument that, even if Jan. 6 was an insurrection, it’s still not clear that Donald Trump was an insurrectionist. As Jonathan Chait put it in New York magazine, “And while the violent mob storming the Capitol was certainly engaging in insurrection, Trump kept just enough distance from it — goading the crowd beforehand, refusing to call it off, but not directing its actions — to create a sliver of ambiguity as to whether he personally engaged in insurrection.”
I’ve argued before, relying on evidence drawn from an amicus brief to the Colorado Supreme Court, that the former president’s actions make him an insurrectionist by any reasonable definition of the term and certainly as it was envisioned by the drafters of the 14th Amendment, who experienced insurrection firsthand. If that isn’t persuasive, consider the evidence marshaled by the legal scholars Akhil Reed Amar and Vikram David Amar in a more recent amicus brief. They argue that top of mind for the drafters of the 14th Amendment were the actions of John B. Floyd, the secretary of war during the secession crisis of November 1860 to March 1861.
During the crucial weeks after the election of Abraham Lincoln, as pro-slavery radicals organized secession conventions throughout the South, Floyd, “an unapologetic Virginia slaveholder,” Amar and Amar write, used his authority to, in the words of Ulysses S. Grant, distribute “the cannon and small arms from Northern arsenals throughout the South so as to be on hand when treason wanted them.” When it became clear that President James Buchanan would not surrender Fort Sumter to South Carolina, in late December, Floyd resigned to join the Confederacy.
What’s more, the Amars note, “The insurrectionary betrayals perpetrated by Floyd and other top officials in the lame-duck Buchanan Administration went far beyond the abandonment of southern forts. They also involved, through both actions and inactions of Floyd and his allies, efforts to prevent President-elect Lincoln from lawfully assuming power at his inauguration.”
The men who wrote the 14th Amendment, partisan Republicans and strong allies of the Lincoln administration, were well aware of Floyd’s actions and wrote section 3 with him in mind. In an 1868 speech discussing the amendment, delivered on the House floor, Representative Burton C. Cook of Illinois declared that “persons who had, like Jeff Davis, Floyd and Breckinridge held high office in the government and betrayed and well-nigh ruined the government whose Constitution they had solemnly sworn to support, should not again be entrusted with power over loyal men.”
If Floyd was an insurrectionist, then, the Amars conclude, Donald Trump is obviously one as well. “Certain inactions loom specially large when a current officer, with special obligations to affirmatively thwart other insurrectionists … instead sits on his hands, smiling, as chaos erupts around him. This is precisely the case of Donald Trump.”
There is a response to this that relates to the other major question surrounding the use of section 3 against Trump. Is the president of the United States an “officer of the United States” and thus subject to the terms of the disqualification clause? Trump, unsurprisingly, says no. “The Court should reverse the Colorado decision because President Trump is not even subject to section 3, as the president is not an ‘officer of the United States’ under the Constitution,” reads his petition to the court.
But according to evidence gathered in another recent amicus brief, this one filed on behalf of a group of historians of the Civil War and Reconstruction (including Nell Irvin Painter, James M. McPherson and Manisha Sinha), the framers of the 14th Amendment, as well as other lawmakers of the time, clearly believed that the president was, in fact, an officer of the United States.
This was most apparent during the 1868 impeachment trial of Andrew Johnson, in which members of Congress routinely characterized the president as a constitutional officer. “The electors may elect a president and vice president, but the Senate only can remove them,” Senator John Sherman of Ohio said during the trial. “The president and the Senate can appoint judges, but the Senate only can remove them. These are the constitutional officers, and their tenure and mode of removal are fixed by the Constitution.”
The authors of the brief also assemble evidence to show that the framers of the original Constitution of 1787 also considered the president an officer of the United States. An early version of the impeachment clause, for example, referred to “impeachments of any national officers.” The final version of the clause states that
Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.
The president is subject to impeachment, which means, by definition, that he holds an office under the United States and is an officer of the United States. The president is also covered by the foreign emoluments clause, which applies, again, to any “Person holding any Office of Profit or Trust” under the United States.
If this wasn’t enough, the authors of the brief surface a quote from Luther Martin, a delegate to the Philadelphia Convention, who explained during the impeachment trial of the Supreme Court Justice Samuel Chase — one of the most explosive political episodes of the Jefferson administration — that “the officers liable to impeachment” are “the president, the vice president and all civil officers of government.”
The last point to make here comes from still another amicus brief, this one prepared and filed by the historians Jill Lepore, Drew Gilpin Faust, David Blight and John Fabian Witt. Section 3, they note, was not written for the past; it was written for the future. “In the 14th Amendment the United States now possessed the blueprint of a new Constitution, a new kind of federalism, a commitment to equality before the law, and a method to legally guarantee the essential results of the Civil War,” they write. “That blueprint included prohibiting past officeholders from holding federal or state office after engaging in an insurrection against the Constitution.”
This was recognized at the time. “The language of this section is so framed as to disenfranchise from office the leaders of the past rebellion as well as the leaders of any rebellion hereafter to come,” Senator John B. Henderson of Missouri said, as he cast his vote for the amendment.
Whatever the political arguments against disqualification — and whatever the practical considerations of keeping the former president off the ballot — both the Constitution and the historical record are clear. Donald Trump is an insurrectionist and Donald Trump has no rightful place among the leadership of the American republic.
The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here's our email: letters@nytimes.com.
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Jamelle Bouie became a New York Times Opinion columnist in 2019. Before that he was the chief political correspondent for Slate magazine. He is based in Charlottesville, Va., and Washington. @jbouie
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