The 14th Amendment to the U.S. Constitution says no person who has engaged in “insurrection or rebellion” should hold public office. The First Amendment gives people the right to associate and form political groups that support political candidates.
So, should former President Donald Trump’s name be added to next year’s presidential preference primary ballot in Minnesota? It’s the question before the Minnesota Supreme Court, which will hear arguments early next month. Lawyers for a group trying to bar Trump from the ballot and label him an insurrectionist argue that Trump’s attempt to deny and overturn the results of the 2020 election make him ineligible to become president again.
On Nov. 2 at 9 a.m. in the Minnesota Supreme Court chambers, lawyers for a group trying to bar Donald Trump from appearing on next year’s presidential preference primary ballot will attempt to have him labeled an insurrectionist.
“No person shall … hold any office, civil or military, under the United States, … who, having previously taken an oath, … as an officer of the United States, 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,” the amendment states. If he is ineligible to hold the office, he is ineligible to run for the office, the group’s lawyers argue.
Free Speech for People has filed a similar action in Michigan and says more are planned.
Facing off against these petitioners will be lawyers for the Minnesota Republican Party and for the Trump campaign, one as a formal intervener and one as a friend of the court.
“The Petition’s many factual inaccuracies, gaps, and distortions come mostly under one overarching theme: Petitioners have no evidence that President Trump intended or supported any violent or unlawful activity seeking to overthrow the government of the United States, either on January 6 or at any other time,” the campaign lawyers state in their response (more on that below). They say voters, not courts, should decide whether Trump can be elected again.
The state party makes a different argument — that it has a First Amendment right to choose its candidates and to run its own process for selecting delegates to the Republican National Committee. Courts have been very protective of the right to association contained in the First Amendment and should do so in this case, the party’s lawyers argue.
“Petitioners’ shortsighted requests would do violence, not simply to the Republican Party of Minnesota, but to all political parties and their members,” states the GOP response brief. “This Court should decline Petitioners’ invitation to play butcher to the U.S. Constitution. Rather, this Court should follow the volumes of case law which clearly establish that the First Amendment freedom of association is a shield from the very harm which Petitioners seek to inflict.”
The case brought by Free Speech for People is technically against Secretary of State Steve Simon, who refused a request to administratively reject any GOP submission of Trump’s name for the presidential preference primary ballot March 5, 2024. Simon said he lacks that authority under state law but agrees with the petitioners that the state Supreme Court has that authority.
He does ask that the court make a quick decision, no later than Jan. 5, so elections officials will have time to prepare ballots.
Here is a summary of the arguments for and against the petition, as described in the briefs filed with the court. Filings can be found on the court’s website.
Free Speech for People
“By overwhelming majorities, both chambers of Congress declared those who attacked the Capitol on January 6, 2021 ‘insurrectionists,’” the petition states. “Just days afterward, the U.S. Department of Justice under the Trump administration labeled it an ‘insurrection’ in federal court. So have at least sixteen federal judges, and Trump’s own defense lawyer in his impeachment proceeding.”
But Free Speech for People spends less time making the case that what happened on Jan. 6 was an insurrection and more time linking Trump to it. Without that linkage, the legal argument falls short.
“Donald J. Trump, through his words and actions, after swearing an oath as an officer of the United States to support the Constitution, engaged in insurrection or rebellion, or gave aid and comfort to its enemies, as defined by Section 3 of the Fourteenth Amendment. He is disqualified from holding the presidency or any other office under the United States unless and until Congress provides him relief.”
Citing previous U.S. Supreme Court rulings, the petitioners define what it means to engage in insurrection”
- “to ‘engage’ means ‘a voluntary effort to assist the insurrection … and to bring it to a successful [from insurrectionists’ perspective] termination.”
- “An individual need not personally commit an act of violence to have ‘engaged’ in insurrection … Indeed, Jefferson Davis — the president of the Confederacy — never fired a shot.”
- “ ‘Engagement’ does not require previous conviction, or even charging, of any criminal offense. Most of the House and Senate candidates-elect that Congress excluded from their seats during Reconstruction for engagement in insurrection had never been charged or convicted of any crimes. Indeed, the vast majority of disqualified ex-Confederates were never charged with any crimes.”
The petition then gives lengthy descriptions of other related events:
- Trump’s attempts to get his Justice Department to intervene
- Efforts to replace those justice officials who refused
- Pressure on state officials
- Enlisting alternate slates of electors
- Cajoling Vice President Mike Pence into halting the certification of the results
- Prodding supporters known to be members of violent right-wing groups to resist
“Trump’s efforts to unlawfully overturn the results of the 2020 presidential election are the subjects of criminal indictments pending against him in United States District Court for the District of Columbia and in the State of Georgia,” the petition notes.
As far as directing the people who gathered for “Stop the Steal” events before and on Jan. 6, the petition focuses on a Dec. 19 Trump tweet: “Big protest in D.C. on January 6th! Be there, will be wild!”
Following the Trump tweet, the petition says, “Kelly Meggs of the Oath Keepers Florida Chapter read Trump’s tweet and commented in a Facebook post: ‘Trump said It’s gonna be wild!!!!!!! It’s gonna be wild!!!!!!! He wants us to make it WILD that’s what he’s saying. He called us all to the Capitol and wants us to make it wild!!! Sir Yes Sir!!! Gentlemen we are heading to DC pack your shit!!’”
Meggs was later convicted by a federal jury for seditious conspiracy after the Jan. 6 attack and was sentenced to 12 years in prison.
“Due to the ongoing assault, Congress was unable to function or exercise its constitutional obligations,” the petition states. “The attack successfully obstructed Congress from certifying the votes, temporarily blocking the peaceful transition of power from one presidential administration to the next. Throughout the attack, Senators, Representatives, and staffers were forced to flee the House chamber and seclude themselves as attackers rampaged through the building.
“Even at the height of the Civil War, the Confederate Army never succeeded in taking control of the U.S. Capitol or any other portion of Washington, D.C., nor in preventing Congress from meeting to exercise its constitutional obligations.”
The petition argues that Simon has the authority to block Trump from the ballot and asks the court to order him to do so.
State GOP response
“Petitioners request that this Court use state law as a sword to cut away the constitutionally protected rights of the Republican Party of Minnesota,” the response states. “Petitioners invite the State of Minnesota to violate the Fourteenth Amendment by cleaving the Republican Party of Minnesota’s First Amendment right of association. Petitioners ask that this Court flip federalism on its head and usurp federal authority by asserting that this Court and the Secretary of State have the authority to disqualify a candidate for federal office.”
The party leaves most of the core arguments of whether Trump engaged in insurrection to the campaign’s lawyers. Instead they ask the court to protect the party’s rights of association. This is especially potent regarding the presidential primary ballot which is, despite being run by the state, a party function that distributes the parties’ national convention delegates.
“The First Amendment protects the [Republican Party of Minnesota’s] RPM’s right to choose and associate with a presidential candidate to represent the RPM in the 2024 presidential election. U.S. Const. amend. I. The U.S. Supreme Court has repeatedly affirmed that the First and Fourteenth Amendments protect political parties’ free association rights,” the party states.
Citing previous court rulings, the state party argues:
- The “[f]reedom of association” clearly “encompasses a political party’s decisions about the identity of, and the process for electing, its leaders.”
- The freedom of association provides “special protection” for “the process by which a political party ‘select[s] a standard bearer who best represents the party’s ideologies and preferences.’”
- Indeed, “[t]he moment of choosing the party’s nominee . . . is ‘the crucial juncture at which the appeal to common principles may be translated into concerted action, and hence to political power in the community.’”
- “In Minnesota, when a voter participates in a presidential primary, they are not directly voting for the presidential candidate; rather, they are voting for delegates to send to that political party’s national convention,” the party stated. “If this Court or the Secretary of State prohibited Donald Trump’s name from being one of many options placed on the ballot, it would effectively impose a gag order on the RPM, rendering the party’s ability to select candidates of its choosing meaningless.”
Who represents Trump?
The Trump campaign asked to intervene in the case that was filed against the state of Minnesota, not Trump nor the state party. The Supreme Court decides which parties will be permitted to intervene as official participants in the case and last week ruled that the Trump campaign would not be granted that status.
Some of the reasoning was technical — the Trump campaign didn’t file a formal motion to intervene, instead making the request as a footnote in their lengthy response brief.
“… even if the footnote could be construed as a motion, it cites no law or legal authority in support of intervention and makes no argument why the Campaign meets any intervention standard.”
But the court order then invited the Trump campaign to take part as a friend of the court — amicus curiae. It can file another brief after its already submitted response was stricken from the court record and will be permitted to take part in oral arguments Nov. 2.
The ruling is something of a victory for Free Speech for People, which had opposed letting the campaign serve as a formal intervener.
“The Court’s September 20, 2023 Order stated ‘Donald J. Trump may serve and file [a] response to the petition’ and that ‘Donald J. Trump may also file a responsive brief addressing the same legal issues’ as are to be addressed by Petitioners,” they wrote. “But the Campaign is not Donald J. Trump, and the Order neither contemplates nor authorizes any submission by the Campaign.
“… even if the Court lacked personal jurisdiction, that does not permit Trump to send the Campaign as his emissary to intervene on his behalf, assert his arguments, and allow him to litigate this matter from the shadows. He cannot have the benefit of de facto party status while avoiding the less convenient consequences of engaging in the litigation which will determine whether he is eligible to hold the Office of President…”
But the campaign said it is an appropriate intervener on behalf of Trump and his interests.
“Petitioners identify no purpose for which the Campaign’s arguments in this case would differ from President Trump’s. Petitioners, nonetheless, oppose the Campaign’s intervention because they desire to turn this Court’s proceedings into a political spectacle by forcing President Trump to personally appear. That is unnecessary, unwarranted, and irrelevant to the issue at hand. The Campaign clearly meets the criteria to intervene and should be allowed to do so.”
In subsequent briefs filed this week, the state party restated many of the arguments made by the campaign, primarily that this is a political question up to Congress and that the state’s presidential nominating process has been delegated to the parties themselves.
“Since a presidential candidate does not file for office with the Secretary of State, (state law) does not permit Minnesota state court review of a president’s eligibility for office,” the new brief states. “Petitioners cannot bring a challenge to a presidential candidate’s ability to appear on a ballot not because the RPM says so, but because Minnesota law says so.”
Lawyers for Trump himself asked the court to allow it to file its response past the Sept. 27 deadline and filed that response pending a ruling. Many of the same arguments are made but it also stresses that the term “officers of the United States” in the 14th Amendment does not include the president.
“In short, the Constitution uses the words ‘officer of the United States’ as a term of art referring to non-elected functionaries who exercise governmental power. This excludes the President,” the new brief from Trump states.
The initial Trump campaign response
While the response brief already filed has been stricken, a new friend of the court brief tells the court that the campaign joins in the response filed by Trump himself. But the now-stricken brief from Donald J. Trump for President 2024, Inc., articulates the opposition from both parties that “both the federal Constitution and Minnesota law place the resolution of this political issue where it belongs: the democratic process, in the hands of either Congress or the people of the United States.”
“Engag[ing] in insurrection or rebellion” or “giv[ing] aid or comfort to the enemies” of the United States, as those phrases are used in Section Three, do not remotely embrace the kinds of speech and actions that Petitioners allege President Trump engaged in.”
The lawyers argue first that the state court does not have jurisdiction and that the insurrection clause of the 14th Amendment does not apply to the president. It criticizes the petition for containing what it termed a “pattern of omissions and mischaracterized facts.
“… Petitioners observe that after the 2021 (sic) elections, President Trump made various statements and took various legal actions questioning the fairness or accuracy of the announced results. But he is hardly the first politician to do that — and Petitioners identify no facts that could convert this political controversy into an insurrection against the government.”
The lawyers argue that rather than incite violence, “There is nothing to indicate that President Trump knew or intended that the speech would be followed by an unlawful riot, let alone anything worse. Yet the Constitution demands at least such a showing.”
After citing instances when Trump called for peaceful actions and eventually asked those who forced their way into the Capitol to go home, the response brief argues that nothing he did could be defined as “engaging in insurrection.
“Watching some of a riot on television, and then asking that it end, simply is not and could not amount to engaging in insurrection. For these reasons, and the others explained below, the Court should dismiss the Petition’s claims as meritless, and remit Petitioners’ arguments to the political processes ordained by the Constitution.
“Whether this Court, in hindsight, views President Trump’s response to the events of January 6 as ideal is not determinative of any question before the Court. Rather, the question is whether his response amounted to engaging in insurrection. There are no facts to suggest that.”
The response brief also notes that the U.S. Senate had the opportunity to declare Trump ineligible to run again or hold office again and voted not to do so.
The courts have set a high bar for when political speech, even fiery speech, can be considered incitement to insurrection, the lawyers argue. Citing the 1969 case Brandenburg v. Ohio, the response states that “the Constitution values and protects such speech unless it qualifies as ‘advocacy of the use of force or law violation’ that ‘is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.’ ”
“To sum up: there have been many contested election outcomes in American history. Every one of them involved a candidate whose arguments were not successful. But losing an argument about an election simply is not the same as engaging in an insurrection. The Petition’s attempt here to bridge that gap with wild inferences and innuendo falls flat.”