The debate over whether the “Disqualification from Holding Office” clause in Section Three of the 14th Amendment to the United States Constitution bars ex-President Donald Trump from serving a second presidential term has gained attention since Trump declared his candidacy for the Republican Party’s 2024 nomination last November.
Critics argue that the Disqualification Clause should be treated like any other criteria for disqualification, such as age, citizenship, and residency. Watchdog organizations like Citizens for Responsibility and Ethics in Washington and Free Speech For People have taken this argument to court, and in one momentous decision, they notched a victory. In September 2022, New Mexico State Judge Francis Mathew removed Otero County Commissioner Couy Griffin from his post, finding that he was disqualified after participating in the insurrection. Matthew argued that engaging in an insurrection can include non-violent overt acts or words in furtherance of the insurrection.
Experts agreed that Section Three imposes a qualification for public office, much like an age or residency requirement, and neither the courts nor Congress have ever required a prior criminal conviction for a person to be disqualified under Section Three.
Former Republican North Carolina State Supreme Court Justice Robert Orr, who assisted FSFP in its 2022 Section Three case against then-Congressman Madison Cawthorn, said that even though they lost that attempt, it “chipped away at one defense which some Trump defenders have put forward: that the 1872 Confederate amnesty applied to future insurrectionists, rendering the 14th Amendment impossible to enforce.” Orr views “engaging in an insurrection” as a profoundly destructive act against the American state and suggests that people should take a step back from the fact that Trump is the issue.