Whether 14th Amendment applies to Trump depends on 3 eligibility questions

The 14th Amendment was trending on Twitter following Donald Trump’s announcement that he would be running for president again in 2024, with people claiming the constitutional amendment could keep the former president from serving in office again. 

House Democrat Rep. David Cicilline (D-R.I.) also sent a letter to colleagues asking them to join him in sponsoring legislation that disqualifies Trump from the presidency because of the 14th Amendment. The letter was sent in full to VERIFY by Cicilline’s office.

Cicilline referenced Section 3 of the 14th Amendment, otherwise known as the “Insurrection Clause.” Cicilline says Trump “engaged in insurrection on Jan. 6 with the intention of overturning the lawful 2020 election results.” His legislation, he wrote, “would prevent Trump from holding public office again under the Fourteenth Amendment.” 

VERIFY viewer David emailed us to ask if the 14th Amendment would keep Trump from office.

THE QUESTION

Does the insurrection clause in the 14th Amendment apply to Donald Trump?

THE SOURCES

THE ANSWER

Section 3 of the 14th Amendment dates back to the Civil War. The intention was to prevent the president from allowing former leaders of the Confederacy, who engaged in rebellion against the U.S., from holding office after they were granted presidential pardons.  

“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.”

In plain language, this generally means that someone who “engaged in insurrection or rebellion” can’t hold certain public offices. 

But several legal experts argue this probably doesn’t apply to Trump. They point to three eligibility questions: 

We’ll go through the answers to these questions individually. 

Did Trump’s conduct amount to engaging in an insurrection?

Robert S. Peck, founder and president of the Center for Constitutional Litigation, told VERIFY in an email the issue “becomes whether Donald Trump engaged in the forbidden conduct.” It would be up to Congress to determine if he is guilty of participating in an insurrection.

If Congress did find Trump guilty of engaging in an insurrection, that finding could ultimately result in a disqualification from holding office. But constitutional law experts say Trump would likely file a lawsuit to challenge the validity of those accusations.

“At issue in the lawsuit would be whether his actions qualified as engaging in insurrection or rebellion or giving aid or comfort to enemies of the Constitution. Because we have no precedent for how a court would approach that issue, one would expect that the evidence gathered by the January 6th Committee and by the Justice Department would be aired in court with judges deciding whether it is sufficient to invoke the Fourteenth Amendment,” Peck said.

This is the first factor to consider – can it be proven that Trump actually did engage in an insurrection or rebellion? As of Nov. 16, he has not been charged or convicted in connection to the Jan. 6 insurrection.

Who does the section apply to in government?

Doron Kalir, clinical professor of law at Cleveland-Marshall College of Law,  told VERIFY as presently written and as he interprets it, the highest office this section would apply to is a senator. Kalir said the section says the rules apply to people in the following positions: 

Kalir says as it’s interpreted, the president does not hold an official station within the U.S. military despite the title of “commander in chief” – that is not a rank within the U.S. military but gives the president authority to preside over some military operations. The president is also not considered a civilian. 

“So there is very strong support to the hypothesis that Donald Trump is not included in the list of persons on whom this will apply,” Kalir said. 

Is the president considered “an officer of the United States”?

Though “president” is never specified in the section, “officers of the United States” are. 

“The question is whether the former president may be considered an officer of the United States for purposes of Section 3, Article 14. There is no certified answer by the United States Supreme Court for this question,” Kalir told VERIFY. 

But, Kalir said the Supreme Court has spoken on this topic before. In 2010, Chief Justice John Roberts issued an opinion in the case of the Free Enterprise Fund v. Public Company Accounting Oversight Board, which spoke directly to whether the president is considered an officer.

Roberts said, “The people do not vote for the ‘officers of the United States.’ Rather, ‘officers of the United States’ are appointed exclusively pursuant to Article II, Section 2 procedures. It follows that the President, who is an elected official, is not an ‘officer of the United States.’”

In other words, only people in appointed positions are considered officers, Roberts said. Since the president is not appointed, he wouldn’t be considered an officer, according to the opinion. 

It's important to note that there is no precedent as to whether this applies to the president or a former president.  So this would need to be argued in court.

Kalir said all of these eligibility requirements would likely be answered well ahead of the November 2024 elections if Trump ends up on the ballot. 

“I can assure you that every federal court that would look at it from a district court level through the Court of Appeals, and all the way up to the United States Supreme Court … In 2024, there will be clarity as to the constitutional eligibility of Donald Trump for running,” Kalir said. “There will be no doubt by the time 2024 is upon us - What is the eligibility according to the Constitution?”