x
Breaking News
More () »

Could the 14th Amendment keep Trump out of office? Why it’s unlikely

The Supreme Court would likely have to rule on two key questions before the ‘insurrection clause’ could be invoked.

Colorado’s state supreme court ruled 4-3 on Dec. 19 that former President Donald Trump is constitutionally ineligible for office, ordering he be removed from Colorado presidential primary ballots, pending a likely review by the U.S. Supreme Court.

Trump’s constitutional eligibility for office has been debated since he was indicted on felony charges related to his efforts to overturn the results of the 2020 election. 

According to the indictment, Trump was charged with conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstruction of an official proceeding, attempted obstruction of an official proceeding, and conspiracy against rights.

After the charges were announced – marking the third criminal case pending against Trump – people online claimed Trump could now be disqualified from serving as president again, under Section 3 of the 14th Amendment to the U.S. Constitution, which is commonly known as the “insurrection clause.”

THE QUESTION

Does the “insurrection clause” of the 14th Amendment apply to Donald Trump?

THE SOURCES

THE ANSWER

This needs context.

Legal experts say it’s an untested grey area, because the clause has never been invoked for a president. The Supreme Court would likely have to rule on the case.

Did you know VERIFY has a YouTube show? Subscribe for a weekly roundup of our top fact-checks.

WHAT WE FOUND

Section 3 of the 14th Amendment dates back to the Civil War. The intent was to prevent former leaders of the Confederacy, who engaged in rebellion against the U.S., from holding office. It states: 

“No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support 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. But Congress may, by a vote of two-thirds of each House, remove such disability.”

This means, generally, that elected officials who betray their oath and rebel against America are banned from ever holding public office again.

But there are two issues left unsettled by ambiguity in the text that would have to be ironed out before the clause could be used against Trump.

Can the “insurrection clause” be applied to presidents?

The clause lists classes of elected leaders for whom betrayal of their Constitutional oath can disqualify them from future office. That list includes members of Congress, state legislators, and “officer[s] of the United States.” It doesn’t explicitly mention the president.

The term “officer of the United States,” however, is not defined. Legal experts say it’s unlikely, but not impossible, that the term could be interpreted to include the president.

Doron Kalir, professor of law at Cleveland State University, says Chief Justice John Roberts commented on the question in a separate case in 2010.

In his majority opinion in Free Enterprise Fund v. Public Company Accounting Oversight Board, Roberts wrote: “The diffusion of power carries with it a diffusion of accountability. The people do not vote for the ‘officers of the United States.’” 

Kalir says that could be interpreted to mean that elected officials, like the president, are by definition not counted as “officers.”

“There is very strong support to the hypothesis that Donald Trump is not included in the list of persons on whom this will apply,” Kalir said. 

But because Roberts didn’t explicitly state the clause could not be applied to a president, the question would likely have to be specifically addressed by the courts.

“There is no certified answer by the United States Supreme Court for this question,” said Kalir.

The question was at the heart of the court case in Colorado. A lower Colorado court previously decided the clause did not apply to the presidency; the narrow majority in the state supreme court decided it did. Trump is expected to appeal the decision to the U.S. Supreme Court, which will have the final say.

MORE FROM VERIFY: Yes, you can be elected president if you've been indicted or found guilty in a criminal case

Did Donald Trump engage in insurrection?

The 14th Amendment also does not define what it means to “have engaged in insurrection or rebellion.” And it provides no definitive process for how to decide whether someone did.

Historically, when the section has been used, proof of insurrection has come from a variety of sources: criminal convictions, civil action, and even acts of Congress.

The most recent successful use of the “insurrection clause” came in 2022, when a New Mexico state court judge ordered that a county commissioner be removed from office. The commissioner was convicted on charges he was involved in the January 6th attack on the Capitol, and a nonprofit advocacy group filed a civil suit to try to remove him from office.

The latest indictment of Donald Trump does not include specific charges of insurrection. 

“One could definitely make a reasonable case that Trump incited the January 6th insurrection, which would make him eligible for prosecution under that statute, but that is not one of the charges he is facing,” said Nicholas Creel, a law professor at Georgia State University.

However, the New Mexico conviction also did not contain specific insurrection charges, potentially leaving open the possibility that a judge could try to rule Trump ineligible for public office.

Robert S. Peck, founder and president of the Center for Constitutional Litigation, told VERIFY: “One would expect that the evidence gathered by the January 6th Committee and by the Justice Department would be aired in court with judges deciding whether it is sufficient to invoke the 14th Amendment.”

Such a decision, in either direction, would almost certainly be appealed and require a final ruling from the Supreme Court.

In the case of Colorado, accusations of violating the clause were brought in the form of a civil suit by a group of voters in the state. Both the district court and state supreme court found Trump had engaged in insurrection.

Even if the Supreme Court did rule against Trump and declare him ineligible for office, the “insurrection clause” provides an avenue for Congress to effectively overrule that decision and reinstate his eligibility with a two-thirds vote of each chamber. 

The VERIFY team works to separate fact from fiction so that you can understand what is true and false. Please consider subscribing to our daily newsletter, text alerts and our YouTube channel. You can also follow us on Snapchat, Instagram, Facebook and TikTok. Learn More »

Follow Us

Want something VERIFIED?

Text: 202-410-8808

Before You Leave, Check This Out