The argument appears to be straight forward. Section 3 of the Fourteenth Amendment precludes anyone who provided aid and comfort to insurrectionists from holding public office.
Section 3 Disqualification from Holding Office
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.
At Volokh Conspiracy, Steve Calabresi asserts that this clause covers Trump. Will Baude and Michael Stokes Paulsen make the same argument in The Sweep and Force of Section Three, to be published in the Penn law review. The basis of the argument has little to do with whether you would call January 6 an insurrection, but rather the definition of insurrection at the time the Fourteenth Amendment was approved.
Webster’s 1828 Dictionary of American English defines “insurrection” as follows:
INSURREC’TION, noun [Latin insurgo; in and surgo, to rise.] 1. A rising against civil or political authority; the open and active opposition of a number of persons to the execution of a law in a city or state. It is equivalent to sedition, except that sedition expresses a less extensive rising of citizens. It differs from rebellion, for the latter expresses a revolt, or an attempt to overthrow the government, to establish a different one or to place the country under another jurisdiction. It differs from mutiny, as it respects the civil or political government; whereas a mutiny is an open opposition to law in the army or navy, insurrection is however used with such latitude as to comprehend either sedition or rebellion.
As Baude (who was first to attack the propriety of Qualified Immunity) and Stokes Paulsen assert, “it’s not even close.”
The bottom line is that Donald Trump both “engaged in” “insurrection or rebellion” and gave “aid or comfort” to others engaging in such conduct, within the original meaning of those terms as employed in Section Three of the Fourteenth Amendment. If the public record is accurate, the case is not even close. He is no longer eligible to the office of Presidency, or any other state or federal office covered by the Constitution. All who are committed to the Constitution should take note and say so.
Notably, Section 3 is self-effectuating. In other words, you don’t need to go to court and get a ruling as to whether someone violated the clause. If they did, then the clause applies.
No jury verdict is required to determine whether a candidate who seeks to run for the presidency on a primary or general election ballot is: a natural born citizen, who is 35 years of age, and fourteen years a resident of the United States. Likewise, no jury verdict or act of Congress is required to keep a Secretary of States and their subordinates from printing ballots with the name “Donald J. Trump” on them.
This raises a remarkable possibility. What if some states, say blue states for example, decided that Trump was disqualified under Section 3 and printed ballots without Trump’s name on it? Perhaps he could be written in. Perhaps not. But since the clause is self-effectuating, it could be done without any need for federal approval if whoever prepared ballots for a state, say the secretary of state, told the printer that Trump was disqualified and should not be on the ballot.
Keeping Trump off the ballot after his conduct on January 6, 2021 does not deprive him of life, liberty, or property in the same way that a criminal or a civil jury verdict could. It is a privilege to be eligible to run for President of the United States and that privilege does not extend to constitutional oath breakers who engage “in insurrection or rebellion against the same.”
Then again, leaving millions of Amerians unable to vote for the candidate of their choice, no matter how poor that choice may be, would deprive them of a right. For all the outrage over elected officials being anti-democratic, this wouldn’t exactly be the most democratic way to win an election.
Some will no doubt say that the voters should be the judges of Trump’s insurrection, but that is not what the Constitution says. The Constitution says that only Presidents who follow their oath of office, which includes taking care that the laws be faithfully executed, are eligible to be on the ballot and to run for re-election.
It’s not that Calabresi is wrong about what the Constitution provides, but that if any state actually disqualified Trump from running, it could be the most catastrophic political decision since Hillary called Trump supporters deplorable. Maybe even worse.