After an expedited hearing under stripped-down standards of due process, Maine Secretary of State Shenna Bellows ruled that former President Trump “engaged in insurrection.”
Under Bellows’ reading of Section Three of the Fourteenth Amendment to the U.S. Constitution, any former official who “shall have [1] engaged in insurrection or rebellion against the [United States], or [2] given aid or comfort to the enemies thereof” is automatically barred from holding or seeking federal or state office unless Congress, by supermajority vote, removes the disability.
One might think that a person who is constitutionally ineligible to run for president in one state should be constitutionally ineligible in all States, but the secretary’s ruling is limited to Maine, and many states conclude otherwise.
The year after adoption of the Fourteenth Amendment in 1868, an accomplished federal appellate judge – lawyer Samuel P. Chase had been treasury secretary under President Lincoln and in 1864 became Chief Justice of the Supreme Court – had occasion, sitting as circuit justice in Griffin’s Case, to consider the very question of whether Section Three automatically disqualifies those who have [1] engaged in insurrection or rebellion or [2] given aid or comfort to the enemy.
In this case, Griffin sought to overturn his criminal conviction (for shooting with intent to kill) because his trial judge Mr. Sheffey had been a Virginia House of Delegates member both before and during the Civil War, thereby violating his oath to support the U.S Constitution. The court below agreed with Mr. Griffin’s argument that Section Three disqualification was automatic and that Mr. Sheffey thus had had no authority to serve as judge.
Observing that many, if not most, of those elected or appointed to office in former Confederate states after the Civil War fell within reach of Section Three, Justice Chase described the bizarre consequences of automatic disqualification:
“If the construction now contended for be given to the prohibitive section, the effect must be to annul all official acts performed by these officers. No sentence, no judgment, no decree, no acknowledgment of a deed, no record of a deed, no sheriff’s or commissioner’s sale – in short no official act – is of the least validity. It is impossible to measure the evils which such a construction would add to the calamities which have already fallen upon the people of these states.”
Justice Chase concluded that blanket disqualification of Confederate officials was not a necessary or proper reading of Section Three, and was contrary to the Amendment as a whole.
“The object of the amendment is to exclude from certain offices a certain class of persons. Now, it is obviously impossible to do this by a simple declaration, whether in the Constitution or in an act of Congress, that all persons included within a particular description shall not hold office. For, in the very nature of things, it must be ascertained what particular individuals are embraced by the definition, before any sentence of exclusion can be made to operate. To accomplish this ascertainment and ensure effective results, proceedings, evidence, decisions and enforcements of decisions, more or less formal, are indispensable; and these can only be provided for by Congress.
“Now, the necessity of this is recognized by the amendment itself, in its fifth and final section, which declares that ‘Congress shall have power to enforce, by appropriate legislation, the provision of this article.’”
In sharp contrast, and with little analysis (“I find Griffin’s Case, 11 F. Cas. 7 (C.C.D. Va. 1869), to be unpersuasive.”), the Maine Secretary of State embraces a view that Section Three operates on its own, requiring no particular procedures or nationally consistent determinations as a condition to disqualifying a presidential candidate (or, for that matter, a sitting president).
In Griffin’s Case, it was both obvious and admitted that Mr. Sheffey openly engaged in rebellion against the United States and violated his prior oath of office. In contrast, President Trump has repeatedly objected to assertions that the Jan. 6 riot was an insurrection and has repeatedly denied he was guilty of inciting violence at the Capitol. In the impeachment hearing following Jan. 6, President Trump was charged with “incitement of insurrection” but was acquitted. No federal prosecutor has charged him with the crime of insurrection.
Secretary Bellows, however, made her own findings that the Jan. 6 riot was indeed an “insurrection”; that for purposes of Section Three “engaged in insurrection” does not require planning violence, ordering violence, leading violence, or committing violence but that “words of incitement” are sufficient; that President Trump’s public claims about election fraud over the course of months amounted to incitements of violence; and that in his tweet (sent 30 minutes after the first rioters entered the building) urging those at the Capitol “to support law enforcement and stay peaceful,” he “neither denounced the violence nor intervened to stop it.”
If the secretary is correct about what constitutes Section Three insurrection, then several congressmen and senators may be illegally holding office, and prior vote tallies on congressional matters may need to be recomputed or discarded. Under the secretary’s approach, a state official’s factual finding that a candidate had “[2] given aid or comfort to the enemies [of the U.S.]” would, with equal force, lead to automatic disqualification.
Chief Justice Chase worried that haphazard application of automatic disqualification under Section Three would create calamitous uncertainties and be inconsistent with cherished constitutional protections of personal liberty. Secretary Bellows begs to differ, opining that she has authority to decide whether the U.S. Constitution compels disqualification of this presidential candidate in Maine – even if not in other states.
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