How the 14th Amendment could block Donald Trump from becoming president

Equal protection under the law. That's the best-known part of the 14th Amendment to the Constitution.

But there's a little-known part of it that’s urgently relevant now.

Section 3 of the 14th Amendment to the Constitution bars from office any public official involved in an insurrection.

"This was written to keep former officials who joined the Confederacy from returning to office unless Congress gave them a waiver or exemption," Gerard Magliocca, professor of law at Indiana University, says.

Can legal reasoning withstand political reality when it comes to Donald Trump?

Today, On Point: How the 14th Amendment could block Donald Trump from becoming president.

Gerard Magliocca, professor of law at Indiana University. Author of "American Founding Son: John Bingham and the Invention of the Fourteenth Amendment."

Michael McConnell, professor and director of the Constitutional Law Center at Stanford Law School. Senior fellow at the Hoover Institution.

Noah Bookbinder, president of Citizens for Responsibility and Ethics in Washington (CREW).

Part I

MEGHNA CHAKRABARTI: On January 20, 2017, Donald Trump stood on the steps of the Capitol and swore to protect the United States Constitution in the presidential oath of office.

CHIEF JUSTICE JOHN ROBERTS [Tape]: Please raise your right hand and repeat after me. I, Donald John Trump, do solemnly swear.
DONALD TRUMP: I, Donald John, do solemnly swear.
ROBERTS: That I will faithfully execute.
TRUMP: That I will faithfully execute.
ROBERTS: The office of president of the United States.
TRUMP: The office of president of the United States.
ROBERTS: And will to the best of my ability.
TRUMP: And will to the best of my ability.
ROBERTS: Preserve, protect, and defend.
TRUMP: Preserve, protect, and defend
ROBERTS: The Constitution of the United States.
TRUMP: The Constitution of the United States.
ROBERTS: So help me God.
TRUMP: So help me God.
ROBERTS: Congratulations, Mr. President.

CHAKRABARTI: Four years later, on January 6, 2021, Trump, who had lost his 2020 bid for re-election, stood before a rally and inflamed his supporters with lies and untruths about the 2020 election. He claimed he had won. He did not. He claimed the election was stolen. It was not. And he told the gathered thousands that the Constitutionally mandated count of electoral votes – happening at that moment in the Capitol – had to be disrupted by any means. He invoked a version of “we had to destroy the village in order to save it” – by bewitching the crowd with the poisoned logic of "in order to protect the Constitution we must violate it."

The Colorado Supreme Court has ruled former President Donald Trump is not eligible to be on the state’s primary ballot. The court determined the 14th Amendment disqualifies Trump because he engaged in insurrection. This episode from our archive explores how the U.S. Supreme Court might consider the 14th Amendment and Donald Trump.

TRUMP [Tape]: And Mike Pence, I hope you're going to stand up for the good of our Constitution and for the good of our country. And if you're not, I'm going to be very disappointed in you, I will tell you right now.

CHAKRABARTI: Trump then told his supporters to march to the Capitol, saying, “We will fight like hell."

TRUMP: Our country has had enough. We will not take it anymore. And that's what this is all about.

CHAKRABARTI: Approximately one hour later, rioters overwhelmed Capitol Police, breached the Capitol building, forced the stoppage of the electoral count, stormed the Senate and House chambers, and caused members of Congress to flee for their lives.

RIOTERS [Tape]: Get back, ladies! Get back!
OFFICERS: We just had protesters … breached the line. We need backup.

CHAKRABARTI: Trump was in the White House, watching. Though he had sworn to preserve the constitution of the United States, he did nothing in his power as president to protect it. He simply watched the violence unfold on television.

Then at 4:17 in the afternoon, after panicked pressure from advisors surrounding him, Trump released a prerecorded video expressing his love for the mob that had invaded the capitol.

TRUMP: I know your pain. I know you're hurt. We had an election that was stolen from us. It was a landslide election and everyone knows it, especially the other side, but you have to go home now. We have to have peace. We have to have law and order. We have to respect our great people in law and order. We don't want anybody hurt.

It's a very tough period of time. There's never been a time like this where such a thing happened, where they could take it away from all of us — from me, from you, from our country. This was a fraudulent election, but we can't play into the hands of these people. We have to have peace. So go home. We love you. You're very special. You've seen what happens. You see the way others are treated that are so bad and so evil. I know how you feel, but go home and go home at peace.

CHAKRABARTI: This is On Point. I'm Meghna Chakrabarti. The Constitution, which Trump had sworn to preserve and protect, contains this clause. It is Section 3 of the 14th Amendment. “No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.”

So does the 14th Amendment, Section 3, apply to Donald Trump? Gerard Magliocca is a professor of law at Indiana University's School of Law, and he's the author of a number of books, including American Founding Son: John Bingham and the Invention of the 14th Amendment.

Professor Magliocca, welcome to On Point.

GERARD MAGLIOCCA: Thank you, Meghna. It's nice to be here.

CHAKRABARTI: Does Section 3 of the 14th Amendment apply to Trump?

MAGLIOCCA: I think that it does. I think that January 6 constitutes an insurrection within the meaning of Section 3. I think that former President Trump engaged in insurrection before and on January 6, and that the provision covers him because of the oath that he took, which you played, and because he is covered as an officer of the United States, and he is seeking an office under the United States.

CHARABARTI: So therefore, to put it finer point on it, you say that the Constitution mandates that Donald Trump should not be able to hold office again in this country.

MAGLIOCCA: Yes, that's correct. Now it's an unfamiliar territory for all of us. The provision was dormant for 150 years after the Civil War. So it's understandable that people are asking a lot of questions and are skeptical about certain aspects of applying this provision to what happened on January 6 or to Donald Trump. But I hope that in the coming months, as we learn more about what section three was about, and more about how it relates to what happened on January 6, that people will be persuaded that this is the correct conclusion.

CHAKRABARTI: Hmm. Well, I just highlighted some of the things that Trump said on January 6. There's also, of course, all that he did in the months between November, December and January between 2020 and 2021. Well, many of which he's under indictment for now, but we'll, we'll talk about that in a second. So let's do exactly what you said, Professor, and learn more about the story of Section 3 and what's in it. First of all, remind me of its exact date of ratification in the Constitution, because it is a post Civil War amendment.

MAGLIOCCA: Right. So Section 3 is ratified in 1868 and is really the embodiment of Lincoln's pledge in his second inaugural, "with malice toward none, with charity for all." And I say that because the framers of the amendment did not throw all of the former confederate leaders in jail, take away all of their property or all of their rights. They put in this one modest limitation. They couldn't serve in office, and they coupled that with the idea that there would be generous amnesty given to people who showed that they deserved it.

And within a few years, most of the former Confederates, except for the top leadership like Jefferson Davis, were given amnesty. And so it was really a very generous and not a punitive measure in keeping with the spirit of reconciliation. So that is kind of what we're looking at only excluding Donald Trump from office, not looking at least under the constitutional provision to a criminal punishment or some other punishment.

CHAKRABARTI: Now what's interesting to me is that, of course, the 14th Amendment as a whole comes after the Civil War and its most famous or best known part would be the equal protection under the law part applying to the, you know, newly freed, formerly enslaved people of the United States. But why was, I mean, why was this part sort of tacked on? Was there evidence, fear, or just knowledge that the very same insurrectionists, the very same Confederates who had seceded from the Union were going to serve again in former Confederate states?

MAGLIOCCA: Yes, so there were elections held throughout the South in 1865, and many of the former officials who had then served the Confederacy were elected and sent back into their old positions, either in Congress or in state government. And so the Republicans in Congress at the time thought this was unacceptable that these people could not be trusted with power again unless they showed some repentance or some sort of apology for what they had done.

It's also worth pointing out, though, that members of Congress in framing Section 3 did say that they intended the provision to apply to future insurrections, not just the one that had just occurred. So, there was sort of a backward looking aspect to it, but there was also a forward looking aspect to it.

CHAKRABARTI: I want to know the exact story behind that, because I understand there was a particular single word that was in an original draft of Section 3 that was then struck from what we've finally ended up in the Constitution that implied that they were indeed looking forward to the consequences of potential future insurrections

MAGLIOCCA: Right, so in a very early version of Section 3, the phrase, "the late insurrection" was used instead of "insurrection." And of course, "late insurrection" meant only the Civil War, but that didn't survive very long. And the rest of the time their provision was under consideration only the term insurrection was used. And again, with the thought that it was a general provision, like much of the 14th Amendment is general in its phrasing, it applies to the circumstances they faced in 1868, but it also was meant to speak to the future. Things like equal protection and due process of law, for example. So Section 3, in that sense, is similar to Section 1 in speaking in more general terms about the nature of what the amendment is supposed to do.

Part II

CHAKRABARTI: Professor, can you tell me a little bit more, are there more specific aspects to the story of how that word recent got removed in terms of recent rebellions or insurrections? Is there historical documentation of the discussion that happened around it? Sort of, let me put it this way, who was there in the room?

MAGLIOCCA: Well, the initial idea for Section 3 had to do with taking away the voting rights of all former Confederates for a period of five years. And so it was in that phase of the discussion that the phrase "late insurrection" was referred to because it was talking about taking away voting rights for a specific group of people that had engaged in a specific set of actions. But that draft first was changed even before it got all the way through the House of Representatives. And then second, it was replaced entirely in the Senate, which threw out the idea of limiting voting rights as being too punitive, and focused instead on exclusion from office, and further narrowed that to say only officials who had engaged in oath breaking would be excluded from office, not just anybody who was part of the Confederacy.

That is to say, if someone had been a soldier in the Confederate Army and had never served in office before, they were not excluded from running for office by the 14th Amendment. It was only people who had been officials and had betrayed their trust by joining secession that they were excluded. So it was pretty early on decided that we should focus on office holding and that it should be a general provision rather than one focus specifically on the Confederacy.

CHAKRABARTI: Now, if I understand correctly, Section 3 is written originally by Senator Jacob Howard of Michigan, is that right?

MAGLIOCCA: That's correct.

CHAKRABARTI: And so who is he and why is that significant?

MAGLIOCCA: Well, so he was important in explaining the 14th Amendment, more generally, to the Senate. He gave a very famous speech discussing the first section, which had to do with, for example, equal protection and the privileges or immunities of citizens and how that might apply to the Bill of Rights. He was considered somewhat more of an authority figure in some respects than just your average senator, let's say. But, in this case, he introduced Section 3 and basically had on behalf of, more or less, his colleagues. And so, there's a connection there between Section 3 and Section 1 that wouldn't otherwise be present.

CHAKRABARTI: And then tell me about the man in the title of your book, John Bingham.

MAGLIOCCA: Well, John Bingham was the principal drafter of Section 1. He wrote the Equal Protection Clause, for example. Now, he didn't write Section 3, but he did go out and defend Section 3 very emphatically in speeches during the 1866 election campaigns. And one of the things he made clear was that it applied to any person in any position — that is any person who broke his oath was excluded from holding any position because they had, in effect, committed a kind of, some people describe it as moral perjury. Not legal perjury in the criminal sense, but they had just betrayed their trust.

So, and Bingham also said, look, these are the most generous terms ever given to people who have engaged in insurrection or rebellion. If you look to past examples, say in England, you know, people were executed for engaging in insurrection and that sort of thing. And he said, this is a measure of reconciliation, and look at how modestly or how well we're treating the people who betrayed their trust to America. So I think it's in that spirit that we have to remember, this is not a criminal sanction. It doesn't require proof beyond a reasonable doubt as a result. It is a civil sanction limited to serving in office only.

CHAKRABARTI: Yes, and so I think this is really important because you're right the text does say that you can never hold office again, with the implication being that while not a legal or criminal act, at least, or not seen in terms of the 14th Amendment, that to engage somehow in an insurrection against the United States is of such a high moral crime that it permanently disqualifies you from engaging in any sort of political leadership in the country, forever, Professor?

MAGLIOCCA: Well, until you can persuade two-thirds of each house of Congress to give you amnesty or a waiver. And indeed, Congress did give many people amnesty or waivers in the period after the Civil War. Within about five years, most of the former Confederates, or officials who had joined the Confederacy, were again able to serve because they had done some things to show that they were more or less a disavowed secession and were willing to go back and support the United States government fully. So it's possible that someday, people involved in January 6 will get amnesty, depending on how they act and what they do. But, yes, the idea was, you were presumed to be ineligible, and then you had to persuade a supermajority of each house of Congress to let you back in, which is a significant request.

CHAKRABARTI: Now, let's dig a little bit deeper into the specific language in Section 3. So we talked about the sweeping nature of it in terms of who would fall under Section 3. It's essentially anyone at any state or federal level of government who has previously taken, it says, an oath to support the Constitution of the United States. So, there are some, I suppose, state and local level positions or many of them that wouldn't apply. But nevertheless, that seems quite sweeping. Why did the writers of the 14th Amendment, of Section 3, feel that it had to apply to anybody in the country who had taken an oath to protect the Constitution?

MAGLIOCCA: I think first because they thought that taking an oath was a special act, that it was something to be taken very seriously, and that draws on other language in the Constitution that emphasizes the importance of oaths including the presidential oath of office. Secondly, they were trying to root out former confederates from government positions — root and branch, you might say, and to do that they had to take a broad approach at least to which officials would be excluded or from what positions they would be excluded, and that would include being a state governor, being a state sheriff, that sort of thing.

Now, of course, you could say that the part of it is kind of what kind of harm do you think that insurrectionists in office might do in the future. The other would just be the thought that they just simply didn't deserve to hold office because of what they had done. Now, in the case of the presidency, it's a lot more about the potential harm that could be done in the future as against, say, a local sheriff who can't do all that much harm if allowed to remain in office. So I think the two considerations are there for Donald Trump, but probably more about what might happen if he returns to office rather than sort of what he did to forfeit his right to run for office.

CHAKRABARTI: Now in a few minutes we're going to be adding another voice to the conversation that encourages exercising caution when applying the 14th Amendment Section 3 in particular to Donald Trump. But Professor Magliocca, I want to just again dig into the specificity or what the meaning of specific pieces of language in Section 3 are. Because of course one of the hallmarks of the Constitution that contributes to its longevity, but also the battles that happen over it, is the language in many places is quite vague. So people who are trying to interpret the Constitution are left to interpret the text, the intent, and the application in modern times. So, in Section 3, it says, "no person," blah blah blah, "who shall have engaged in insurrection or rebellion." That word "engaged," how should we read that?

MAGLIOCCA: So there are cases from after the Civil War that discuss that and some other legal authority. So one way of understanding it is to say that you have to take an action that furthers the insurrection. Another way that it was described was that you have to contribute something useful to the insurrection. And both of those are fairly broad ways of looking at it, though they're not identical. And the breadth makes sense for two reasons.

One, as you said, the sort of offense of insurrection is grave. So we might be more willing to have a broad standard or a broad net for people who engage in that kind of conduct. But the other is, again, it's not a criminal punishment. You know, if we have a criminal punishment, we are more concerned about having broad standards of liability. When it's only an exclusion from office, we're not as concerned about that. We're more interested in trying to further whatever purpose the language has.

CHAKRABARTI: So then I guess it's difficult to tell, again, like you said, specifically what they meant by "engaged." I think maybe the vagueness is part of the point. But what about this next part that comes about giving "aid or comfort to the enemies thereof," "thereof" meaning the constitution. What might they have intended to mean around "aid or comfort?"

MAGLIOCCA: So there are different opinions about that. One is that it's just another way of saying the same thing, that these terms "engage," "incite," "aid and comfort" were all used interchangeably during the period of the Civil War to describe the kind of conduct that would make you an insurrectionist. Another thought is that that language applies only to traitors because it draws on the language of treason. You know, when we say "aid and comfort," often we're talking about someone accused of treason. And there was an active discussion about whether maybe a few people like Jefferson Davis ought to be prosecuted for treason in 1866.