A long-shot push to bar Trump in 2024 as an 'insurrectionist'

Former President Donald Trump is the widely presumed front-runner for the Republican presidential nomination in 2024. Photo / Hannah Beier, The New York Times

The drive reflects concern among Democrats and anti-Trump Republicans that, despite multiple investigations and evidence of wrongdoing, the former president may make a comeback.

Democrats and liberal groups, determined to find a way to bar former President Donald Trump from returning to office, are preparing a variety of ways to disqualify him, including drafting new legislation and readying a flurry of lawsuits seeking to use an obscure clause in the Constitution to brand him an insurrectionist.

The plans amount to an extraordinarily long-shot effort to accomplish what multiple investigations of Trump have failed to do: foreclose any chance that the former president could regain power, whether voters want him to or not. They reflect the growing concern among Democrats and liberal activists seeking to find a way to end the political careers of the former president and the officials who helped him try to cling to the presidency, including through several new and in some cases arcane strategies.

Democrats and some anti-Trump Republicans have grown fearful that Attorney General Merrick Garland will not pursue criminal action against Trump for his efforts to overturn the 2020 election, culminating in the violent storming of the Capitol on January 6, 2021. Even if Trump were indicted and convicted of a crime, there is no law barring even an imprisoned felon from becoming president.

At the same time, Trump is the widely presumed front-runner for the Republican presidential nomination in 2024. His popularity with his party's base appears undiminished by the high-profile set of House hearings this year revealing the breadth of his efforts to upend a democratic election.

Some of the efforts to block his return are taking place in the states where the nonprofit organisation Free Speech For People and other groups such as Citizens for Responsibility and Ethics have been filing lawsuits against lawmakers who were involved in Trump's attempts to reverse his 2020 defeat.

The push gained momentum this week when a judge in New Mexico removed Couy Griffin from his post as commissioner of New Mexico's Otero County, branding him an insurrectionist for his participation in the January 6 riot and for helping to spread the election lies that inspired it. The judge's action against Griffin, the founder of Cowboys for Trump who was convicted earlier this year of trespassing when he breached barricades outside the Capitol during the attack, was the first time in more than a century that a public official has been barred from serving under the Constitution's ban on insurrectionists holding office.

Noah Bookbinder, president of Citizens for Responsibility and Ethics, the nonpartisan watchdog organization that filed suit against Griffin, said the judge's ruling sent a clear message that the events of January 6 qualified as an insurrection and that those involved in the "planning, mobilisation and incitement" of the violence that day, including Trump, could be barred from office.

He said his group was taking a "hard look" at how to pursue such challenges against the former president.

"There is a tremendous body of evidence about Donald Trump's role in the efforts to overturn the election and inciting the attack of January 6," Bookbinder said. "It seems like there's a serious case to be made that it could have application to Donald Trump."

Progressive activists have also been meeting with secretaries of state and sending letters to officials who oversee elections to try to persuade them to use their authority to keep anyone involved in the January 6 attack on the Capitol off the ballot in 2024. Election officials in all 50 states and the District of Columbia have already received letters urging them to block Trump from the ballot.

And there is work underway on Capitol Hill, where Democrats have drafted legislation aimed at enforcing the 14th Amendment's ban.

"If he does choose to run for office, we stand ready to challenge his eligibility under Section 3 of the 14th Amendment in multiple states," Ron Fein, a lawyer for Free Speech For People, which is planning a legal offensive, said of Trump. "It's hard to come to any conclusion other than that he is disqualified from public office under the 14th Amendment to the Constitution."

A year and a half after Trump left office, Democrats continue to see him as a grave danger to the country and — even after a special counsel investigation, two impeachments, a large electoral victory in 2020 and a revelatory congressional inquiry into Trump's efforts to overturn the election — many are increasingly concerned that he could return to power.

A spokesperson for Trump did not respond to a request for comment, but Trump's lawyers are aware that they could have to overcome such challenges to keep him on the ballot in multiple states, according to people with knowledge of their talks. They have been closely watching the state-level lawsuits against other public officials.

The little-discussed third section of the 14th Amendment, adopted during Reconstruction to punish members of the Confederacy, declares that "no person shall" hold "any office, civil or military, under the United States, or under any state, who, having previously taken an oath" to "support the Constitution," had then "engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof."

Reconstruction-era federal prosecutors brought civil actions in court to oust officials linked to the Confederacy, and Congress in some cases refused to seat members, according to the Congressional Research Service. But before Griffin's ouster this week, the last time the amendment was enforced was in 1919, when Congress rejected a socialist member who was accused of giving aid and comfort to Germany during World War I.

After the Jan. 6 attack on the Capitol, liberal groups have tried without success to use the 14th Amendment to disqualify a slew of lawmakers, including Arizona's Republican Reps. Paul Gosar and Andy Biggs, and Mark Finchem, a state representative who is running for secretary of state with Trump's endorsement. They have also tried and failed to use the constitutional clause to bar Sen. Ron Johnson and Reps. Tom Tiffany and Scott Fitzgerald, all Wisconsin Republicans; Rep. Marjorie Taylor Greene, R-Ga.; and Rep. Madison Cawthorn, R-N.C.

An appeals court ruled in May that participants in an insurrection against the government could be barred from holding office, but the target of that case, Cawthorn, had already lost his primary, rendering the matter essentially moot.

In the challenge to the candidacy of Greene, a judge adopted the plaintiffs' definition that the Jan. 6 attack on the Capitol was an insurrection but said that there was insufficient evidence to prove that Greene engaged in it.

Other suits were dismissed on procedural grounds.

The strategy worked in the case of Griffin, but his was a far easier one to win than a potential challenge to Trump or any of his associates because the New Mexico official was physically present at the riot on Jan. 6.

In recent weeks, some high-profile Democrats in Congress have filed legislation that would make it easier for such suits to be successful against Trump and other politicians involved in the events of January 6, although it has no chance of advancing.

Rep. Jamie Raskin of Maryland, a member of the House select committee investigating the January 6 attack, and Rep. Debbie Wasserman Schultz of Florida, a former chair of the Democratic National Committee, have filed legislation that would declare the Jan. 6 attack on the Capitol an insurrection and authorise the attorney general to investigate and bring civil action against anyone suspected of violating their oaths of office. The bill would also authorise any citizen to file a civil action to disqualify an officeholder.

Raskin said he was discussing with other members of the January 6 committee whether to include the measure among the panel's recommendations — along with overhauls of the Electoral Count Act and other potential changes — which are expected to garner significant attention when they are released in the coming weeks.

"This is a matter of constitutional magnitude," Raskin said. "As the committee moves into the final phases of our investigation and our recommendations, I would hope this would be something that we would consider."

Should the committee endorse the move, it could add momentum for the legislation to move forward in Congress, although it would all but certainly face an insurmountable hurdle in the Senate, where Republicans could filibuster it. But even if the bill dies, its authors regard it as a road map for Congress to enforce the constitutional provisions in the future.

After the attack on the Capitol, legal scholars began scouring the federal code to find ways of imposing consequences for those involved. The rioters who committed violent acts proved easy to charge and convict, producing hundreds of cases. Less clear was what could be done about the politicians whose actions led to the riot, but who did not commit violence themselves.

Since late last year, the House committee appeared to be banking on a strategy of unearthing as much evidence as possible against Trump, reasoning that doing so would pressure the Justice Department to prosecute the former president.

In December, Rep. Liz Cheney, R-Wyo., the committee's vice chair, read aloud the criminal statutes she contended Trump had broken. In March, a federal judge ruled that Trump and conservative lawyer John Eastman, who helped him craft a legal theory to justify overturning the election, likely acted unlawfully by obstructing the work of Congress and conspiring to defraud the United States.

Throughout its public hearings in June and July, the committee suggested an array of other potential grounds for prosecuting Trump, including a scheme to put forward false pro-Trump electors in states won by Joe Biden, fundraising based on the lie of a stolen election and interference with committee witnesses.

This article originally appeared in The New York Times.

Written by: Luke Broadwater and Michael S. Schmidt
Photographs by: Hannah Beier
© 2022 THE NEW YORK TIMES