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Why Trump's insurrection referral is the Jan. 6 committee's most important act

The House committee release sits full report on Wednesday. But likely nothing in its findings will have more of a legal impact than the conclusion that Trump incited an insurrection.
President Donald Trump arrives to speak at a rally in Washington on Jan. 6, 2021.
President Donald Trump arrives to speak at a rally in Washington on Jan. 6, 2021.Jacquelyn Martin / AP file

UPDATE (Dec. 21, 2022, 6:15 p.m. EST): On Wednesday, the House announced it would not be releasing its final report until Thursday. It did, however, release a large batch of transcripts from witnesses including John Eastman, Jenna Ellis, Roger Stone, Jeffrey Clark and Michael Flynn.

On Monday, the Jan. 6 committee made history by approving a criminal referral for former President Donald Trump. After months of witness statements and evidence gathering, the committee recommended multiple charges. Today, the committee will release its full report on the Jan. 6 insurrection — hundreds of pages packed with evidence, witness statements and bombshells. But likely nothing in its findings will prove more important — or could have a larger legal impact — than the committee’s conclusion that Trump, as a matter of law, incited an insurrection against the authority of the U.S. government. It should, and must, prevent those who tried to overthrow our government from ever serving in it again. And that starts with Donald J. Trump.

It is crucial that courts and secretaries of state simultaneously remove Trump from the presidential ballot in 2024.

Section 3 of the 14th Amendment makes it clear that no individual who engages in insurrection or rebellion against the Constitution after having previously sworn an oath to support it can hold any federal or state office. This provision establishes a basic qualification for the presidency, no different than the qualifications for age, citizenship and residency.

While federal prosecutors should move forward with investigating and charging Trump for criminal insurrection, it is crucial that courts and secretaries of state simultaneously remove Trump from the presidential ballot in 2024. The 14th Amendment’s disqualification clause, like all constitutional provisions, is the supreme law of the land and must be enforced by federal and state officials. But the Constitution does not spell out an enforcement procedure, so it falls to each state to determine whether a candidate is qualified to appear on its ballots or serve in office. Many states have their own procedure as to how this should work, either through the courts or through elections officials. My organization, Citizens for Responsibility and Ethics in Washington (CREW), and others will act to try to ensure that they enforce Trump’s constitutional disqualification.

Of course, criminal prosecutions for insurrection and the civil procedures needed to enforce the 14th Amendment’s disqualification clause are separate proceedings, and the result in one would not necessarily control the other. But because the standard of proof for a criminal conviction is so high, it’s hard to imagine that courts and other decision-makers would not find sufficient evidence for disqualification, for which the standard of proof is lower. In fact, the committee’s determination that sufficient evidence existed to approve the referral of criminal insurrection charges gives me a high degree of confidence that the conditions for the disqualification clause have been met.

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Thanks to the select committee’s meticulous work, there is no doubt that many of those who unlawfully entered the Capitol to disrupt the proceedings of Congress did so violently and at the behest of the sitting president. As the committee detailed in its hearings, the world watched Trump summon a mob that erected gallows and chanted “Hang Mike Pence.” Police were beaten and trampled, windows broken and barricades breached. The evidence the committee presented and lays out in its report is incontrovertible: Trump conceived and encouraged the efforts to use a mob to help overturn the election; he also mobilized the crowd and normalized its violent actions. The 14th Amendment, adopted following the end of the Civil War, was written to ensure that those who took up arms against our country — or those like Trump who inspired others to —would not be able to lead the government they tried to overthrow.

Now, some might say that Jan. 6 was very different from the Civil War, and it was — but the difference is only in scale, not intent. And just as the 14th Amendment recognizes that insurrectionist dangers did not end at Appomattox, the Trump insurrectionist threat did not end on Jan. 7, when Vice President Mike Pence certified President Joe Biden’s victory. In fact, Trump continues to push his lost cause in every speech he gives and every social media message he posts.

Section 3 of the 14th Amendment is not something buried in history. In fact, it’s been used to disqualify someone from office for participating in the very insurrection Trump incited. CREW recently brought the first successful court case in over 150 years removing an elected official for violating the disqualification clause. In that case, decided under New Mexico’s expedited process for removing a disqualified office holder, not only did a New Mexico judge remove former Otero County Commissioner Couy Griffin from office, the judge also ruled that the attack on the Capitol was an insurrection and that Griffin’s participation in it disqualified him from ever holding office again under Section 3. This decision was made after Griffin recruited people to “fight” for Trump, and despite him not entering the Capitol or engaging in violence himself. If Griffin is barred from holding office, then Trump certainly must be.

This is why the committee’s decision to refer Trump for engaging in insurrection is so important: The committee members concluded that they have enough evidence for a prosecutor to prove beyond a reasonable doubt that Trump engaged in criminal insurrection.

The bipartisan members of the Jan. 6 select committee did their job. They investigated what happened on that day, found it to be an insurrection and found Trump to blame. They did so knowing that this could put them in the crosshairs of the very people who attacked the Capitol to try to stop the peaceful transition of power that serves as the basis of our democratic system of government. Now it’s up to others to ensure the Constitution is upheld.

Responsibility now shifts not just to prosecutors, but to the courts and state officials tasked with a vital duty — to safeguard ballots from disqualified candidates. They need to show the same vision and courage that House lawmakers have shown over these past 18 months. We’ll be there to remind them.