Could former President Donald Trump run for his old job again after his role in the January 6, 2021 attack on the US Capitol? The answer may depend on the definition of rebellion.

Liberal groups have filed lawsuits in Colorado, Minnesota and other states seeking to keep Trump off the ballot, citing a rarely used constitutional ban on holding office for those who have sworn an oath to uphold the Constitution but then oppose it rebelled. The two-sentence clause in the 14th Amendment has only been used a handful of times since the post-Civil War years.

Therefore, there is almost no case law defining its terms, including what an insurrection would entail. While people have been debating whether to call Jan. 6 an insurrection since the days after the attack, the debate in court this week has been different: whether those who ratified the amendment in 1868 would call it that.

There’s a very public battle going on, in all these colloquial terms, about whether it’s an insurrection, but it really comes down to brass tacks defining what this constitutional term means, said Derek Muller, a law professor at the Notre Dame, which has been closely following the lawsuit.

There are numerous other legal reasons why the longstanding legal efforts to keep the former president and current Republican primary frontrunner from the ballot could fail, from limits on the role of state courts to whether Section 3

Three

applies to the chairman. But perhaps none resonates more than the debate over whether the January 6 attack should be considered an insurrection at all.

At a hearing Thursday before the Minnesota Supreme Court, the question was one reason why the justices appeared skeptical about whether states have the authority to kick Trump off the ballot.

What do you think it means to have been involved in an insurrection or rebellion against the Constitution? Judge Gordon Moore asked the attorneys for each side.

Nicholas Nelson, representing Trump, defines an insurrection as any type of organized form of warfare or violence… aimed at breaking away or overthrowing the United States government. He added that nothing in the last fifty years met those criteria.

Ronald Fein, a lawyer with the group Free Speech for People, which represents the petitioners, said an insurrection against the Constitution is a concerted, violent attempt to prevent or impede the implementation of a central constitutional function. the January 2021 attack on the Capitol, an attack intended to halt the certification of Democrat Joe Biden’s election victory.

Rebellion may be in the eye of the beholder, Minnesota Supreme Court Chief Justice Natalie Hudson concluded after testimony from both sides.

A day earlier, an Indiana University law professor, Gerard Magliocca, sat in a Denver courtroom and described his research into Section 3, a topic few had delved into before he began delving into it in late 2020.

Magliocca turned up in dictionary definitions of rebellion from 150 years ago. One of them was the rising of people in arms against their government, or against some part of it, or against some part or any of its laws.

He discovered an opinion from the U.S. attorney general in 1867 that former Confederates should be barred from certain offices even if they simply purchased bonds from the rebel government. He also discovered cases in which Congress refused to seat elected representatives whose only offense was writing a letter to the editor supporting the Confederate cause or paying a son $100 to cover his expenses to join the Confederate army Close.

Congress also passed a law in 1862 making insurrection a crime that used different language. Some critics of the Section 3 lawsuits have noted that of the thousands of charges filed by the federal government related to January 6, no one has been charged with the crime of insurrection, although several far-right extremists have been convicted of seditious conspiracy.

Magliocca noted that constitutional language is different from much more technical and detailed criminal statutes, and Section 3 says nothing that the person disqualified from office must first be convicted of a crime. In fact, Magliocca testified that it was understood that the purpose of the provision was to keep a wide range of former Confederates out of public office in the years after the war.

In 1872, Congress lifted the ban on most former Confederates, something it can explicitly do under the terms of Section 3.

On Friday, during the hearing in Colorado, Trump’s lawyers had their own constitutional expert, Robert Delahunty, note that some of Magliocca’s definitions were contradictory. Some required the use of weapons during the uprising, while others did not.

Delahunty, a retired law professor and fellow at the conservative Claremont Institute, said the key question is Section 3’s unique requirement that it be an insurrection against the Constitution.

What really needs to be explained is not the simple meaning of insurrection, but the entire phrase insurrection against the U.S. Constitution, Delahunty testified Friday.

The lawyers who tried to disqualify Trump in Colorado noted that even the former president’s own attorney in his impeachment trial for the Jan. 6 attack described it as an insurrection. The question before us is not whether there was a violent insurrection at the Capitol at that point, everyone agrees on that,” Trump lawyer Michael van der Veen said during the impeachment proceedings in the Senate. Legal scholars could find only one example of the amendment being used in the last century, when it was cited to deny a seat in the House of Representatives to an anti-war socialist elected after World War I. However, after the January 6 attack, it has become increasingly common. tried to use it to keep Republican Rep. Marjorie Taylor-Green from voting

last year

and also targeted former Republican Representative Madison Cawthorn, although the issue became moot when he lost his Republican primary. Another liberal group, Citizens for Reforming Ethics in Washington, successfully used Section 3 to block their office

national commissioner of the province of New Mexico

after being convicted in federal court of a felony for trespassing on the Capitol grounds during the attack. CREW is the group that organized the Colorado case, testimony for which will conclude Friday. At a hearing in that case Thursday, Trump’s lawyers tried to show that many who attended the Jan. 6 protests were law-abiding, peaceful people. Tom Bjorklund, treasurer of the Republican Party of Colorado, wandered the National Mall that day and approached the Capitol, but said he returned after seeing tear gas and vandalism. Bjorklund claimed that Antifa was likely responsible for the violence

false story

that was

debunked by research

which showed that the crowd was overwhelmingly Trump supporters. He said he saw people in the crowd who looked like agent provocateurs and wanted to testify to make a statement. I don’t think there was any kind of uprising. I think it’s a ridiculous story, Bjorklund said. I just felt like it was some kind of insult to insurgents around the world. Republicans who only care about elections hardly rise to the level of an insurrection.