The Insurrection Bar To Office

August 5, 2022

In the aftermath of the events of January 6, 2021, in and around the U.S. Capitol, there have been calls for accountability for those who participated, as well as for those who may have helped instigate it. The breach of the Capitol resulted in numerous injuries, multiple deaths, and significant property damage. It also delayed Congress’s constitutional duty of certifying electoral votes for President-elect Joseph Biden and caused Capitol Police and other law enforcement personnel to evacuate the Vice President and Members of Congress from the House and Senate floors to safer locations. Some observers, historians, and other commentators are wondering whether the Disqualification Clause of the Fourteenth Amendment might provide a mechanism to disqualify individuals who participated in or encouraged the siege, including former and sitting government officials, from holding office.

Invocation of the Disqualification Clause raises a number of novel legal questions involving the activities that could trigger disqualification, the offices to which disqualification might apply, and the mechanisms to enforce disqualification. The clause has been seldom used, and the few times it has been used in the past mainly arose out of the Civil War—a very different context from the events of January 6. It is therefore unclear to what extent historical precedents provide useful guidance for its application to the events of January 6.

A mere days after the now famous history making raid on Donald Trump’s Mar-a-Lago residence in search of documents illegally taken from by the White House by the former president the Congressional Research Service updated and published a deeply researched legal memorandum addressing the Disqualification Clause. The memorandum explains to whom it might apply and what activities could incur a bar on holding office, and discusses possible mechanisms to implement it. Democracy4All has made the full text of the memorandum available to all using the steps explained below.

The full text of The Congressional Research Service memorandum of August 5, 2022 (updated just days before the FBI raided the private residence of former, and twice-impeached, President Donald Trump) “The Insurrection Bar to Office: Section 3 of the Fourteenth Amendment” can be viewed in your browser in the scrollable reader below or by clicking on the link below the reader titled “Insurrection Bar.” Clicking the “Download” button allows the full text of the opinion to be downloaded to your device. You can also share this post on Twitter and Facebook.

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