WTF is Insurrection?

JoAnne Sweeny
Mar 1 · 4 min read
Image by Clker-Free-Vector-Images from Pixabay

The word “insurrection” has been in the news a lot recently. It was bandied about during Donald Trump’s second impeachment trial and in reporting on the January attempted takeover of the Capitol by a pro-Trump mob.

Trump was acquitted of the charges of inciting the mob, which means that he isn’t disqualified from running for office again and he has indicated that he might run for President in 2024. So, it seems that, other than the people who actually stormed the Capitol, there may be no repercussions for Trump or the members of Congress who stoked the “big lie” that Trump won the 2020 Presidential election by a landslide.

It seems completely unfair. Something more in line with the shitty year of 2020, not the hopefully-better-though-how-could-it-be-worse-no-that’s-not-a-challenge 2021.

That’s where the Fourteenth Amendment comes in. The Fourteenth Amendment prohibits anyone who has taken an oath of office as a member of Congress or any other government position from holding any office in the federal government if they have “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.” So, once you’ve taken the oath of office, if you commit insurrection or assist in an insurrection, you can’t hold office anymore.

As part of the 14th Amendment, the insurrection clause was created in response to the Civil War when the country was trying to figure out what to do with all the Confederate soldiers and sympathizers who had to be reintegrated back into the United States. However, this clause has never been used. The closest we ever came was with Jefferson Davis, the President of the Confederate States of America.

Davis was captured and set to be tried for treason, a capital offense, but his trial was delayed for years, partially due to President Johnson’s impeachment trial. Davis was ultimately pardoned by Johnson (along with all the other Confederate troops), so no trial ever took place. The 14th Amendment was passed while Davis was still awaiting trial and was informally invoked when there was talk that Davis might run for Senate. But Davis never ran for Senate. The 14th Amendment’s insurrection clause was never tested.

Still, the clause must mean something. It could mean that if Trump or any members of Congress gave “aid or comfort” to those “engaged in insurrection,” they could be removed from office and barred from running again.

So what is insurrection? It’s mentioned and not defined in the Fourteenth Amendment to the Constitution but it’s also a federal crime, which means that there’s a federal statute that makes insurrection illegal. And it carries a pretty hefty punishment: a potential fine and prison sentence up to ten years. Under the federal statute, insurrection takes place when a person “incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto.” Anyone convicted is explicitly barred from holding any federal office.

I don’t know what “sets on foot” means, and I’m not going to get into what “incitement” means right now — you’re going to have to wait for my next article. But let’s look at the “rebellion or insurrection” part. The statute doesn’t define them but there have been a couple of cases that have shed light on what insurrection might mean.

The most important aspect of insurrection seems to be that it includes an element of violence or using unlawful means to “subvert” the government. There must also be an intent to overthrow the government or interfere with the execution of a law. What it doesn’t have to be is officially declared, well-organized, successful ,or even particularly impressive.

It seems that the mob that descended on the Capitol with the goal of disrupting the certification of the Presidential vote fit within the definition of insurrection. But what about Trump or Cruz, or Hawley? Did they provide sufficient aid or incitement to also be guilty of insurrection?

Perhaps not. Or perhaps not enough for a criminal conviction. But what about the 14th Amendment itself? Can we put anyone in jail just by using that law alone?

I don’t know. It’s never been tested and I don’t know what mechanism could be used to enforce it. But it’s an interesting question and, if Trump tries to run for President again, it could be an obstacle for him, if not an outright bar.

I’ll take it.

I Taught the Law

Stories of the law, legal academia, and lawyer culture.

I Taught the Law

Lawyers, law professors, students, and other legal professionals bring you the untold stories of the rules, institutions, and people that govern our lives (without too much legalese).

JoAnne Sweeny

Written by

Professor of law at the University of Louisville, specializing in freedom of expression, technology, and feminist jurisprudence.

I Taught the Law

Lawyers, law professors, students, and other legal professionals bring you the untold stories of the rules, institutions, and people that govern our lives (without too much legalese).

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