Philippa Kaur

A county court in Santa Fe, New Mexico, on Sept. 6, 2022, became the first in more than 150 years to disqualify a person from public office because they participated in an insurrection.

District Court Judge Francis Mathew found that Couy Griffin, a former county commissioner and founder of the group Cowboys for Trump, had participated in the violent U.S. Capitol attack on Jan. 6, 2021. Mathew invoked a nearly forgotten part of the 14th Amendment, called Section 3, which can disqualify certain people from state or federal office if they have “engaged in insurrection or rebellion” or given “aid or comfort” to the United States’ enemies.

The clause was first adopted after the Civil War to keep former Confederates from participating in politics. The amendment says that disqualified people are barred for life from either running for or being appointed to office. But Congress can vote by a two-thirds majority to waive this ban.

The clause fell into general disuse after 1872, when Congress gave amnesty to most former Confederates in a move toward reconciliation.

Some observers have argued that Section 3 disqualification should be dusted off to address the Jan. 6 mob and to stop other people who have threatened and committed violence – or tried to disrupt federal elections – from serving in government.

Mathew’s decision has also renewed talk among Democrats and good-governance groups about finding a way to use Section 3 against former President Donald Trump in order to disqualify him from ever holding office again.

We are scholars of comparative constitutional law who have worked on democratic backsliding around the world. In a forthcoming article, we point out that disqualification is potentially a useful tool to protect democracy, but it can also be dangerous – it rubs up against the basic idea of democracy as a system in which anyone can run, and voters can decide.

The disqualification of Couy Griffin is one of the latest efforts – but the only successful one – to remove people from office or prevent them from running because of their support for the Jan. 6 Capitol attacks.
Brent Stirton/Getty Images

Recent attempts at disqualification

The disqualification of Griffin is one of several efforts voters and advocacy groups have lobbied for after Jan. 6. Most of these efforts have failed to remove someone from office or prevent them from running. But the examples are still useful in understanding how disqualification might be an alternative to more punitive criminal law options.

A suit filed by a group of voters to disqualify Rep. Marjorie Taylor Greene, for example, foundered in July when a Georgia court affirmed a lower court ruling that she had not “engaged in insurrection.”

Arizona and Wisconsin state judges have also rejected efforts to use Section 3 as a sword against those who supported the Jan. 6 insurrection. But none of these targets actually participated in the mob at the Capitol. Mere support of the rioters, or questioning the election outcome, is protected political speech under the First Amendment.

Griffin, though, engaged in a physical invasion of the Capitol.

Mathew’s careful opinion contains extensive factual findings and legal analysis. So it tees up nicely the question of whether and how disqualification from democratic office is legitimate, justified or effective in defense of democracy.

This is especially important in the U.S., where there is a lack of recent historical experience with disqualification of people working in politics.

When disqualification makes sense

Other countries make much more extensive use of political disqualification than the U.S. does, as we show in our forthcoming study.

Israel’s courts, for example, have repeatedly disqualified candidates for lack of “good character.” In Pakistan, the supreme court disqualified sitting Prime Minister Nawaz Sharif in 2017 after he was named in the Panama Papers because of corruption.

There are various costs and benefits to disqualifying someone from office, and there are also open questions of how to correctly interpret Section 3. We focus on the first question of costs and benefits here.

Democracies require robust protections for free speech and association. But these freedoms can be abused by those seeking to undermine democracy itself.

For example, Mathew documents Griffin’s persistent efforts to cast doubt on the legitimate outcome of the 2020 election and to instigate violence to derail President Joe Biden’s inauguration. Most of Griffin’s actions, however, fell far short of the threshold necessary to justify criminal penalties for incitement – the First Amendment requires that the violence be imminent.

Griffin, nonetheless, participated in a concerted threat to American democracy. Disqualification is a way to address such threats without the heavy hand of the criminal law.

Section 3, more generally, is another way to address high-level misconduct in politics. As we have explored in another study published in 2021, Congress has rarely impeached a U.S. president – and an impeached president has never actually been removed from office. Given partisan dynamics, it is unclear if impeachment could actually remove and disqualify a sitting president.

This might leave Section 3 as the best alternative.

The risks of disqualification

Mathew’s opinion suggests that Section 3’s “aid and comfort” language can go uncomfortably far. It could potentially chill legitimate political speech – including criticism of the government, or support for a foreign power – that doesn’t threaten democracy.

For example, plaintiffs justified the need to disqualify Griffin by saying that he committed “actions that normalized and incited violence” by “dehumanizing the opposition as ‘wicked’ and ‘vile.’”

Dehumanizing speech about political opponents is indeed often unhealthy for democratic practice, but it has become routine in politics.

Another challenge is that the text for Section 3 is not entirely clear about how disqualification actually works. Does it apply automatically to anyone who engages in insurrection? Or does it require some sort of either judicial or legislative process?

There is no settled answer.

In an 1869 decision, Supreme Court Chief Justice Salmon Chase suggested that Section 3 did not apply automatically – rather, disqualification occurred when Congress, or perhaps a state legislature, authorized it.

Mathew rejected the position that only Congress could make the determination and instead held that Griffin could be disqualified by order of a state court.

The potential breadth and ambiguity of Section 3 creates a risk that the measure could be repurposed, against its original aims, in a way that hurts democracy.

While a few presidents have been impeached, including Donald Trump twice, they were not removed from office.
Drew Angerer/Getty Images

The bigger picture

Disqualification, then, is a superficial remedy to a profound problem. It might be effective against a low-level official like Griffin, but the bigger the target, the less power everyday voters have.

Imagine that some court was persuaded to disqualify Trump from a state’s 2024 presidential ballot. Such a move could be considered to disenfranchise his supporters. This could play into Trump’s beliefs that the “game is rigged.”

Whatever the correct legal answer, there is a strong case for eliminating the uncertainty around how Section 3 works. We’ve argued for a carefully crafted federal statute that clearly explains when it applies and how it works.

If disqualification is to become an effective sword to defend democratic politics, it must not become a two-edged one that later weakens the democratic process in the U.S. More

Jared Kushner is not the first presidential son-in-law to have held high office. President Woodrow Wilson leaned heavily on his talented and experienced Treasury Secretary, William McAdoo, who just happened to be his daughter’s husband.

Jared Kushner: Breaking History: A White House Memoir (Harper Collins)

McAdoo, however, was a skilled politician, and his appointment had to be ratified by the US Senate. Kushner, who spent much of Donald Trump’s period in office as a senior advisor, and even at times a de facto chief of staff, was previously a real estate developer.

Kushner’s marriage to Trump’s daughter, Ivanka, was facilitated by Rupert Murdoch and his former wife. But that friendship had its limits, as Jared would discover when Rupert refused to override the call made by Fox News in its coverage of the 2020 elections that gave Arizona to Trump’s adversary, Joe Biden.

Kushner was one of Trump’s inner circle, with a wide-ranging set of briefs that appeared to cut across half a dozen departments. Breaking History reads rather like a dutiful student’s account of “what I did on my summer holidays”, except in this case Jared actually influenced US policies in a number of areas.

While making sure to properly acknowledge the pater familias, Kushner claims some big personal achievements:

Across four years, I helped negotiate the largest trade deal in history, pass bipartisan criminal justice reform, and launch Operation Warp Speed to deliver a safe and effective COVID-19 vaccine in record time … In what has become known as the Abraham Accords, five Muslim-majority countries signed peace agreements with Israel.

Some of these claims are justified. In particular, the Trump administration did support some relaxing of the draconian penal restrictions that mean the US leads the world in incarcerations. Kushner’s account of building a bipartisan movement to modify some of these laws is important, even as it reminds us of the barbarity of much of the US justice system.

Kushner, left, and Ivanka Trump, right, sit with Kim Kardashian West, one of the celebrities who advocated for criminal justice reform, at the White House in 2019.
Evan Vucci/AP

Kushner spent considerable time working with selected gulf states to develop what became the Abraham Accords, which saw four Arab states recognise Israel. His insight was that the various royal despots would ultimately collaborate in abandoning the Palestinians in the greater interest of building an anti-Iranian alliance, where they shared common concerns with Israel. It seems Kushner never met a ruler he didn’t like, nor one whose record on human rights was worth questioning.

Kushner seems blithely oblivious to the fact his close ties to Israel’s former prime minister Benjamin Netanyahu, which go back to childhood, and his own strong support for Israeli ambitions, might have restrained Palestinian enthusiasm for his peacemaking efforts.

In this he reminds one of his father-in-law, who never let sentiment get in the way of enthusiasm for making a deal. Remember how well that went with Kim Jong-un – and, yes, Jared and Ivanka were there when the two presidents met at the Demilitarised Military Zone between the two Koreas, but tactfully no more is said about the beautiful friendship Trump claimed was established.

Little is said about this ‘beautiful friendship’.
KCNA/EPA

Read more:
Personal diplomacy has long been a presidential tactic, but Trump adds a twist

Telling silences and a magic touch

After the outbreak of COVID, Kushner became a central player, along with Vice-President Mike Pence, in organising the national response. As with his account of the Abraham negotiations, there is a great deal of fascinating detail obscured by his need to be centre-stage.

That the US suffered among the highest COVID death rates within rich countries
is apparently not worth mentioning beside the achievements of our hero in mobilising the private sector and pharmaceutical giants.

In Kushner’s world everyone is at fault, except the Trump family. President Trump, it seems, was constantly let down by his advisers, the Republican establishment, foreign leaders – by everyone, in fact, but Jared and Ivanka. Donald’s wife and sons barely appear (thankfully Melania, Eric and Donald Jr were hardly noted for their interest in policy).

In Kushner’s world, everyone is at fault except the Trump family.
Evan Vucci/AP

Nor, one might note, do either of the Australian prime ministers who dealt with Trump rate a mention. Kushner seems largely uninterested in democratically elected governments, although he does tell us of his friendship with former UK prime minister Boris Johnson. It seems that for four years, only the steady hand of President Trump, supported by his daughter and son-in-law, steered the US through perilous waters.

Breaking History suggests there were few areas of government where Jared’s magic touch was not required. As he says, when the president calls, you answer, even if it means missing sleep and meals. He notes the rapid turnover of officials in the administration, and has little praise for most of the cabinet, other than former secretary of state Mike Pompeo and treasurer Steven Mnuchin.

But sycophancy has its limits. One of the most revealing lines in the book comes in a reflection on the days after the 2020 elections: “Like millions of Americans, I was disappointed by the outcome of the election.”

Kushner makes no attempt to support claims the election was stolen, and passes over the attack on the Capitol by Trump’s supporters, which he acknowledges was “wrong and unlawful”. His claim that had Trump anticipated violence he would have prevented it from happening has been essentially disproved in the recent hearings into the January 6 attack.

Analysing a morally corrupt presidency

Donald Trump is known to be a lazy reader, although Kushner claimed last month his father-in-law had started reading his book. Will he wade through the 400 or so pages of praise that come before the admission of electoral defeat?

One wonders whom else the book might attract. The prose is flat but grammatical, far removed from the overblown rhetoric and denunciations so beloved of the MAGA crowd. The book has been predictably panned by the New York Times and Washington Post, and largely ignored by Trump’s true believers, who far prefer the fiery speeches of Don Junior. But it would be wrong to ignore the insights into Washington and Middle Eastern policy-making that Kushner provides.

Jared Kushner (right) and Benjamin Netanyahu make joint statements to the press about the Israeli-United Arab Emirates peace accords in Jerusalem, August 30 2020.
Debbie Hill/EPA

Even a morally corrupt presidency leaves a mark on the world that needs to be analysed. The plethora of books that have already appeared around the Trump presidency bear out Kushner’s claim to have been a key player across a number of crucial portfolios.

Indeed, the only other person to remain in “the room where it happened” through the entire four years was Pence, until his final break with Trump over the results of the 2020 elections. Now there’s a story Lin Manuel Miranda might consider as a follow-up to Hamilton. More