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It's somewhat well known that (the Socialist) Victor Berger was convicted in 1919 under the Espionage Act of 1917 "for publicizing his anti-interventionist views", and then denied a seat in the House of Representatives on grounds that

he is absolutely ineligible to membership in the House of Representatives under section 3 of the fourteenth amendment to the Constitution of the United States.

However, his conviction was overturned (by SCOTUS) in 1921 and Berger won another term in 1924, which he was allowed to sit.

Are there any post-1920s examples of not seating someone for that reason of providing 'aid and comfort' to the enemy, or even disqualification at earlier stage of an election for the same reason?

(N.B., I know people were convicted of the related crime thereafter, e.g. Mildred Gillars for participating in Nazi propaganda, but she didn't run for any office.)

2 Answers 2

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Sept 2022, Couy Griffin was removed from office. and is barred from seeking public office again due to "aid and comfort" of insurrection under the United States Constitution, 14th Amendment section 3, or disqualification clause.

( Judge found Griffin had engaged in insurrection by aiding insurrection under the Amendment 14, article 3. see below )

Judge Boots ‘Cowboys For Trump’ Founder From Office Over Jan. 6 Participation

“Cowboys for Trump” founder Couy Griffin has been booted from his position as Otero County Commissioner by a New Mexico judge over his participation in the Jan. 6 attack on the U.S. Capitol.

Judge Francis J. Mathew ruled on Monday that under Section 3 of the Constitution’s 14th Amendment, “the January 6, 2021, attack on the United States Capitol and surrounding planning, mobilization, and incitement were an “‘insurrection” against the Constitution of the United States, and [Griffin] “engaged in” that insurrection after taking his oath,” of office

. > ...

Judge Mathew wrote that Griffin’s actions amounted to insurrection in part because “by joining the mob and trespassing on restricted Capitol grounds, Mr. Griffin contributed to delaying Congress’s election-certification proceedings. The constitutionally-mandated proceedings could not resume until all members of the mob, including Mr. Griffin, were removed from the restricted area.” Mathews also established that a criminal conviction is not “a prerequisite for disqualification” from holding public office.

The Couy Griffin Case: Frequently Asked Questions


From the Comments

from Obie 2.0

Not quite. Couy Griffin was disqualified on the basis of having actually participated in an insurrection, in the judge's estimation. That's the part that says "shall have engaged in insurrection or rebellion against the same," not the part that says "or given aid or comfort to the enemies thereof." The judge ruled that as Griffin was "leagued with" insurrectionists, he would have to be considered an insurrectionist himself. –

Griffin never entered the capital building. He plead guilty too misdemeanor trespassing for being inside the over run security barrier. He wasn't violent and was not charged with insurrection or sedition.

The Judge in his findings did say Griffin had "engaged in insurrection" and then went on to explain what he meant by that phrase. What he meant was Griffin had engaged in insurrection by aiding insurrection.

The Couy Griffin Case: Frequently Asked Questions

See -> How did the Court define “engaging in” insurrection?

The Court cited Reconstruction-era case law establishing that a person can be disqualified for “engaging in” insurrection even if they have not been convicted of a crime and even if they did not engage in violence; the test for disqualification is instead whether the person “‘voluntarily aid[ed] the [insurrection], by personal service, or by contributions, other than charitable, of anything that [is] useful or necessary’ to the insurrectionists’ cause.”


From: Rick Smith

Because there was no "enemy" government during the Jan 6th "event", that portion of Section 3 concerning "aid or comfort to the enemies thereof" does not apply. Examples of where "aid or comfort" may apply include: providing troop movements, harboring spies, and broadcasting messages seeking to get the military to give up, all in times of war or other conflict, Aiding in insurrection is insurrection and nothing more with respect to Section 3.

If aiding insurrection is insurrection why does 14th amendment article 3 spell out both? And why have folks like Griffin and Worthy listed below been bared from office yet never charged or even accused of insurrection? Why in both cases was it stated no crime is necessary to bar one from office under 14-3. The test is not war, nor alternative government nor even the type of aid rendered. The test is having pledged to defend the Constitution and then having failed to do so. It's still not a crime, it's rather a violation of the qualifications for obtaining a new office under said constitution, federal, state, county or city.

Kenneth Worthy v. JOHN C. BARRETT 1869.

“The oath to support the Constitution is the test. The idea being that one who had taken an oath to support the Constitution and violated it, ought to be excluded from taking it again, until relieved by Congress.”

Kenneth Worthy was a County Sheriff before the war and swore an oath in taking office then. He continued that service under the Confederacy during the war. Thus aided the confederacy. He was not accused of any violence, nor participation in any battles, nor service in the Confederate army. He was charged with no crime after the war. Bared from office under 14-3 1869. The quote comes from trial notes linked above.

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    Not quite. Couy Griffin was disqualified on the basis of having actually participated in an insurrection, in the judge's estimation. That's the part that says "shall have engaged in insurrection or rebellion against the same," not the part that says "or given aid or comfort to the enemies thereof." The judge ruled that as Griffin was "leagued with" insurrectionists, he would have to be considered an insurrectionist himself.
    – Obie 2.0
    Nov 2, 2023 at 18:21
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    Though one could perhaps read between the lines of the ruling to surmise something about the judge's opinion on that phrase (likely that "aid and comfort" is a redundancy since anyone helping an insurrection at all is an insurrectionist, and that insurrectionists qualify as "enemies thereof"), the judge does not directly address the applicability of that portion and focuses on demonstrating that Griffin "engaged in insurrection or rebellion."
    – Obie 2.0
    Nov 2, 2023 at 18:33
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    @Obie2.0, Added my response at the bottom of my answer. The judge found he "engaged in insurrection" by "aiding" insurrection.
    – user47010
    Nov 2, 2023 at 19:06
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    WRT "aid or comfort to the enemies thereof". Couy Griffen was not found to be an enemy of the United States. Therefore the "aid or comfort" disqualification does not apply. History therefore suggests that an “enemy” is one who owes allegiance to an opposing government and not merely a U.S. citizen opposing the U.S. government or part thereof. The Insurrection Bar to Office: Section 3 of the Fourteenth Amendment
    – Rick Smith
    Nov 2, 2023 at 19:40
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    @RickSmith, The letter of the amendment does not mention a "enemy government". It states insurrection or rebellion, Insurrection is defined as "a violent uprising against an authority or government".
    – user47010
    Nov 2, 2023 at 21:16
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Q: Are there any post-1920s examples of not sitting someone for that reason of providing 'aid and comfort' to the enemy, or even disqualification at [an] earlier stage of an election for the same reason?

References in the Constitution and US Code to "aid and/or comfort".

Article III, Section 3, Clause 1:

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.

Which is prosecuted under —

18 U.S. Code § 2381 - Treason

Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, ...

18 U.S. Code § 2383 - Rebellion or insurrection

Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, ...

But, note that § 2383 does not mention "enemies".

Fourteenth Amendment, Section 3:

... 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.

Who are "their" or "the" "enemies of the Constitution ..."?

One difficulty in applying the aid or comfort prong is determining the proper definition of enemy. The term enemy is traditionally understood to encompass citizens of foreign countries in open hostilities with the United States. During the Civil War, the Supreme Court clarified that citizens of the Confederacy, while not foreign, may be treated as enemies as well as traitors. During World War II, the Supreme Court determined that a U.S. citizen who acted as a member of a belligerent invasion of the United States by joining a group of Nazi saboteurs who landed on shore might be treated as an enemy. History therefore suggests that an “enemy” is one who owes allegiance to an opposing government and not merely a U.S. citizen opposing the U.S. government or part thereof.
[The Insurrection Bar to Office: Section 3 of the Fourteenth Amendment]

Context of the question:

Examples where a person was —

  1. Convicted under § 2381 (Treason) for "giving [enemies] aid and comfort ...", or

  2. A qualified person who violated Section 3 of the Fourteenth Amendment for having "given aid or comfort to the enemies [of the Constitution of the United States]".

And,

  1. Excluded from a ballot for elective office or not being seated in office, either having occurred after 1920.

Findings:

None were found.

For Section 3 of the Fourteenth Amendment post-1920, there are none. (See "Couy Griffin", below.)

That leaves only conviction for treason, as the only persons that would qualify. There were 10 people convicted of treason post-1920.

Walter Allen was convicted of treason on September 16, 1922 for taking part in the 1921 Miner's March against the coal companies and the U.S. Army at Blair Mountain, West Virginia. He was sentenced to 10 years and fined. During his appeal to the Supreme Court, he disappeared while out on bail.

Max Stephan, a German-born Detroit tavernkeeper, was convicted of treason on July 2, 1942, after the jury deliberated for only one hour and 23 minutes. In April 1942, Stephan harbored and fed a Luftwaffe pilot at his tavern who escaped from a Canadian POW camp. On August 6, Judge Arthur J. Tuttle sentenced Stephan to death by hanging. He was the first man convicted and sentenced to death on a federal treason charge since the Civil War. His sentence was later commuted by President Franklin D. Roosevelt to life in prison.

Hans Max Haupt, Walter Otto Froehling and Otto Richard Wergin were convicted of treason and sentenced to death, and Erna Emma Haupt, Lucille Froehling and Kate Martha Wergin were convicted of treason and sentenced to 25 years in prison on November 24, 1942, in a joint indictment. All six individuals were charged with treason for giving aid and comfort to the executed German saboteur Herbert Hans Haupt. On appeal, these judgments were reversed and remanded to be retried. Hans Max Haupt was convicted again on June 9, 1944. He was sentenced to life in prison. He appealed again, but the Seventh Circuit Court of Appeals affirmed this judgement. Walter Otto Froehling and Otto Richard Wergin were sentenced to 5 years in prison on July 22, 1944 as accessories to treason.

Martin James Monti, United States Army Air Forces pilot, convicted of treason for defecting to the Waffen-SS in 1944. He was paroled in 1960.

Douglas Chandler, worker for National Geographic, convicted of treason in 1947 for defecting to Germany during World War II, sentence commuted by President John F. Kennedy.

Robert Henry Best, convicted of treason on April 16, 1948, and served a life sentence.

Iva Toguri D'Aquino, who is frequently identified by the name "Tokyo Rose", convicted 1949. Subsequently pardoned by President Gerald Ford.

Mildred Gillars, also known as "Axis Sally", convicted of treason on March 8, 1949; served 12 years of a 10- to 30-year prison sentence.

Herbert John Burgman, convicted in 1949 of treason during WWII for spreading Nazi propaganda; sentenced to 6–20 years in prison.

Tomoya Kawakita, sentenced to death for treason in 1952, but eventually released by President John F. Kennedy to be deported to Japan.

There is no indication that any ever sought election to public office. From what is known, one disappeared, one died in prison, and some lost their citizenship and were deported. Others simply lived out the remainder of their lives.


Couy Griffin:

Mr. Griffin was not included because the finding of the court was "insurrection" under Section 3 of the Fourteenth Amendment and not "aid or comfort to enemies of the Constitution of the United States" as required by the context of the question.

State of New Mexico, ex rel., et al v. Couy Griffin

II Mr. Griffin is Disqualified from Public Office Under Section Three of the Fourteenth Amendment.

  1. Based on the trial evidence and argument, the Court concludes that (1) Mr. Griffin took an “oath ... to support the Constitution of the United States” as an “executive ... officer of a[] State,” (2) the January 6 Attack and surrounding planning, mobilization, and incitement were an “insurrection” against the Constitution of the United States, and (3) Mr. Griffin “engaged in” that insurrection.

  2. The Court therefore concludes that, effective January 6, 2021, Mr. Griffin became disqualified under Section Three of the Fourteenth Amendment from serving as a “Senator or Representative in Congress, or elector of President and Vice-President, or hold[ing] any office, civil or military, under the United States, or under any State,” including his current office as an Otero County Commissioner.

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