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The January 6 Committee's investigation has resulted in them referring former president Donald Trump to the Department of Justice on multiple charges. This referral is not legally binding and the DoJ can choose to ignore it.

Should the DoJ decide to prosecute Trump (as a result of the January 6 Committee's referral or for other reasons), it is equally not bound to charge him only for the crimes alleged by the referral. In particular there has been speculation from political commentators and the media that he could plausibly be charged with the crime of insurrection (note that the January 6 Committee has included this charge in their referral).

Given Trump's refusal to comply with various investigations (including the January 6 Committee's) into his conduct as President, and his use of lawsuits to obstruct said investigations, it is highly plausible that he would use the same tactics to delay an official Department of Justice case against him while he runs for President in 2024.

The 14th Amendment prohibits an insurrectionist from holding public office (unless Congress grants them an exemption by 2/3 vote of each house). If Trump were found to have engaged in insurrection before the election, he would be ineligible to be elected. But what would happen if he were elected and takes office before he's found to have engaged in insurrection? Would he automatically be removed from office?

Have there been any past applications of this provision of the 14th Amendment that could serve as a guide in such a situation?

I understand that there's some controversy over whether the 14th Amendment is actually applicable, due to conflict with other provisions in the Constitution. For the purpose of this question, assume that it's valid.

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  • What constitutes "whatever he can" to delay the investigation? Lot of "push" here.
    – BillOnne
    Dec 22, 2022 at 17:44
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    Delaying responses to investigators, challenging their authority, appealing rulings, etc. He has plenty of experience being taken to court and dragging things on forever.
    – Barmar
    Dec 22, 2022 at 17:46
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    @BillOnne I hear you, but in this particular case, if the "push" were challenged by say "give me some examples to back it up" one could write volumes in response. Dec 22, 2022 at 21:30
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    I'm not sure what you mean by "push".
    – Barmar
    Dec 22, 2022 at 21:37
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    1) A criminal referral from Congress has no legal standing. Thus far, it appears that no one has been charged with insurrection; other crimes yes, but not insurrection. This suggests that the use of "a decent chance" is actually rather unlikely. 2) The capitol-riot-investigation tag was added, but the title question and body (other than the first paragraph) suggests a generic question not about the events of January 6th, 2021. The added tag seems inappropriate.
    – Rick Smith
    Dec 23, 2022 at 3:04

2 Answers 2

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There are 19th century post-civil war examples of both state and federal officials (at least one federal judge) being removed from office after taking office under the 14th Amendment provision referenced, and there has been one post-January 6, 2021 example of a local government official being removed from office on that ground.

Josh Blackman's position writing for The Volokh Conspiracy that argues that the president is not an officer of the United States, would be a minority view on that issue.

According to the Congressional Research Service (a non-partisan research agency of Congress):

According to the text of Section 3, the bar against office-holding applies to Members of Congress, officers of the United States, members of state legislatures, and state executive or judicial officers, who previously swore an oath to support the Constitution of the United States and later break that oath by committing the acts mentioned. The offices to which such persons are then barred include seats in Congress, membership in the Electoral College, and any civil or military office under the United States or any state. Although not expressly referenced, the bar appears historically to have applied to judgeships.

There is an argument that because the President is not covered explicitly by the provision, the presidency itself is exempt from the disqualification. In contrast, the Impeachment Clause of the Constitution explicitly applies to the “President, Vice President and all civil Officers of the United States,” which suggests that the President might not be a “civil Officer of the United States” whose oath of office would subject him to possible disqualification. However, it may be more likely that the office of the President is included as an office under the United States (unlike Members of Congress and electors, which may be why they are expressly included), so that any person subject to the disqualification is ineligible to serve as President.

One scholar notes that the drafting history of Section 3 of the Fourteenth Amendment suggests that the office of the President is covered:

"During the debate on Section Three, one Senator asked why ex-Confederates “may be elected President or Vice President of the United States, and why did you all omit to exclude them? I do not understand them to be excluded from the privilege of holding the two highest offices in the gift of the nation.” Another Senator replied that the lack of specific language on the Presidency and VicePresidency was irrelevant: “Let me call the Senator’s attention to the words ‘or hold any office, civil or military, under the United States.’”"

In the January 2021 article of impeachment against President Donald Trump, the House of Representatives, citing Section 3 of the Fourteenth Amendment, appears to have presumed that the Disqualification Clause would operate as a bar against President Trump continuing to serve as President, presumably due to his previous oath of office and his alleged “incite[ment of] violence against the Government of the United States.”

But since it has never happened before, it is hard to know how a fact pattern alleging that a sitting President is an insurrectionist who is not eligible to serve would play out.

Courts might be reluctant to rule that the President was ineligible, but it isn't obviously a non-justiciable issue any more than, for example, the constitutional requirement that the President be at least 35 years of age.

Also, contrary to the implication in the answer of Rich Smith to this question, neither an indictment or conviction of a relevant crime would be necessary, although it would be sufficient if there was a conviction.

A civil action to disqualify the President from holding office could move forward even if a criminal action was pending, although the civil court could also elect to stay its proceedings pending the outcome of the criminal case.

The decision to remove someone from office because they lack of the qualifications to hold that office would be decided in a civil quo warranto writ petition and not directly in a criminal trial. Many of the people removed from office for lack of qualifications under the insurrection clause were not criminally convicted but were removed by a judge in a civil proceeding.

According to the same CRS source:

Section 3 of the Fourteenth Amendment does not expressly require a criminal conviction, and historically, one was not necessary. Reconstruction Era federal prosecutors brought civil actions in court to oust officials linked to the Confederacy, and Congress in some cases took action to refuse to seat Members.

Congress last used Section 3 of the Fourteenth Amendment in 1919 to refuse to seat a socialist Congressman accused of having given aid and comfort to Germany during the First World War, irrespective of the Amnesty Act. The Congressman, Victor Berger, was eventually seated at a subsequent Congress after the Supreme Court threw out his espionage conviction for judicial bias.

Recently, various groups and organizations have challenged the eligibility of certain candidates running for Congress, arguing that the candidates’ alleged involvement in the events surrounding the January 6, 2021, breach of the Capitol render them ineligible for office. No challenges have to date resulted in the disqualification of any congressional candidate. A New Mexico state court, however, has removed Otero County Commissioner Couy Griffin from office and prohibited him from seeking or holding any future office based on his participation in, and preparation for, the January 6 interruption of the election certification.

A judgment against the President in a civil lawsuit regarding his qualifications, would be sufficient to remove him from office, without the necessity of an indictment, conviction, or impeachment.

This does still leave some open questions as to how the civil action would proceed. Most notably, who would have standing to sue, what the burden of proof would be, and so on. But the precedents from petitions for writs of quo warranto for other offices would fill in many of the procedural details. The process would probably be similar to the one set forth in the District of Columbia's municipal code (and there is a plausible although probably not a winning argument that it is directly applicable to an action to remove the U.S. President from office).

A proper party could also probably petition for an original writ on the matter from the U.S. Supreme Court, which has original writ jurisdiction under the All Writs Act, even though it very rarely exercises that authority. Original writ procedure in the U.S. Supreme Court under U.S. Supreme Court Rule 20 is discussed here.

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  • Comments are not for extended discussion; this conversation has been moved to chat.
    – JJJ
    Dec 25, 2022 at 14:36
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In Is the President an "officer of the United States" for purposes of Section 3 of the Fourteenth Amendment?, January 20, 2021, Josh Blackman, for The Volokh Conspiracy, argues that the president is not.

Professor Blackman states four elements for deciding questions about the Fourteenth Amendment: jurisdictional, offense, disqualification, and amnesty or removal.

Most of the current debates about Section 3 have focused on the offense element . . .

However, it is the jurisdictional element, whether the president is an "officer of the United States", on which Blackman focuses.

The article, through numerous citations and arguments, concludes that the Fourteenth Amendment does not apply to the presidency.


Q: What happens if POTUS is found to have engaged in insurrection after taking office?

If there is no indictment and trial prior to the president assuming office, there will no finding by a competent court. This is due to the Office of Legal Councel memo: A sitting president’s amenability to indictment and criminal prosecution.

The indictment or criminal prosecution of a sitting President would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions.

Q: Would he automatically be removed from office?

There is no process to automatically remove the president from office. Impeachment would be required.


For all the disagreement about the meanings of parts of Section 3 of the Fourteenth Amendment , it is nonetheless true that the Fourteenth Amendment is not self-executing. A law must be passed using Section 5.

Such a law, for Section 3, was made part of the Enforcement Act of 1870. However, those provisions "were repealed in 1948." Congress also passed the Confiscation Act of 1862 which defines the crime of insurrection that exists today as 18 U.S. Code § 2383 - Rebellion or insurrection. Note that the text of the Confiscation Act did not, and current law does not, rely on the Fourteenth Amendment and that the meaning of insurrection in the Fourteenth Amendment is the same as the 1862 act.

For Congress to use the Fourteenth Amendment, it is necessary they pass a new law. A law was proposed by Rep. Cicilline as H.R.9578 - To provide that Donald J. Trump is ineligible to again hold the office of President of the United States or to hold any office, civil or military, under the United States. (Until the text is available at congress.gov, see cicilline.house.gov.) There is no possibility of enacting the legislation in the 117th Congress.

For Trump, if elected, to be removed from office for insurrection. The indictment would have to occur before January 5, 2026. That date is due to the Statute of Limitations for non-capital cases. Assuming conviction while president, Trump "shall be incapable of holding any office under the United States." This would trigger the Twenty-Fifth Amendment that "the President is unable to discharge the powers and duties of his office" for which the vice president and half of the cabinet would notify Congress. Congress then agrees by two-thirds vote of both houses, due to the statutory bar under 18 U.S. Code § 2383. This would not remove Trump from office.

If the conviction is overturned on appeal, Trump could then resume as president. Instead of waiting on the appeals process, Congress could proceed with impeachment to remove him from office.


In contrast to the above, I note that Myles S. Lynch, Disloyalty & Disqualification: Reconstructing Section 3 of the Fourteenth Amendment, 30 Wm. & Mary Bill Rts. J. 153 (2021), disagrees with Blackman regarding whether the president is an "officer of the United States." Further, Lynch would disagree that Section 3 is "not self-executing", but rather that the use of "No person shall . . ." is judicially enforceable.

Neither of these differences is relevant for the title question which assumes that a candidate is elected and becomes president. Nor is it relevant for the general election where only the electors to the Electoral College are selected. It could bear on the primaries where the candidate runs under their own name.

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    I don't agree about the second point, that there will be no finding by a competent court. A memo does not carry the weight of law, it is an opinion by the executive branch who oversees Federal incitements. The memo concludes with "No court has addressed this question directly, but the judicial precedents that bear on the continuing validity of our constitutional analysis are consistent with both the analytic approach taken and the conclusions reached". That is a DOJ laywer saying "this is how I think it will go in court". Ultimately, that is for the judiciary to decide.
    – Schwern
    Dec 22, 2022 at 19:49
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    I specifically said to assume the 14th Amendment applies (I know there are arguments like the one you quoted), the first half of your answer ignores that.
    – Barmar
    Dec 22, 2022 at 20:14
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    @Barmar - Had I ignored your assumption about its validity, I would have had to VTC for speculation. I chose to address the controversy, because others may not be aware of it.
    – Rick Smith
    Dec 22, 2022 at 20:17
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    Do you have any authority to support the claim that a criminal conviction is required contrary to the historical practice?
    – ohwilleke
    Dec 22, 2022 at 21:04
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    @RickSmith That doesn't make much sense. Whether or not the President of the United States is an officer of the United States is an analytically distinct question from whether you are guilty of insurrection as a matter of law and subject to criminal penalties. There is no reason that this pure question of law couldn't be decided in a civil rather than a criminal case. And, there is no history at all of a criminal conviction being required for any office under the insurrection clause. A conviction does bar someone from holding office, but isn't the exclusive way of doing so.
    – ohwilleke
    Dec 22, 2022 at 21:43

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