DENVER— In the summer of 2020, Gerard Magliocca, like many during the coronavirus pandemic, found himself stuck inside with time on his hands.
A law professor at Indiana University, Magliocca emailed with another professor, who was writing a book about overlooked parts of the Constitution’s 14th Amendment. He decided he would research the history of two long-neglected sentences in the post-Civil War addition that prohibit those who “engaged in insurrection or rebellion” from holding office.
Magliocca posted a copy of his research — which he believed was the first law journal article ever written about Section 3 of the 14th Amendment — online in mid-December of 2020, then revised and re-posted it on Dec. 29. Eight days later, President Donald Trump’s supporters stormed the U.S. Capitol to prevent the certification of his loss to Joe Biden. Magliocca watched as Republicans such as Sens. Mitch McConnell and Mitt Romney described the attack as an “insurrection.”
Just over four years later, the U.S. Supreme Court will have to determine whether it does. On Thursday, the nation’s highest court is scheduled to hear arguments over whether Trump can remain on the ballot in Colorado, where the state’s Supreme Court ruled that he violated Section 3.
It’s the first time in history that the nation’s highest court has heard a case on Section 3, which was used to keep former Confederates from holding government offices after the amendment’s 1868 adoption. It fell into disuse after Congress granted an amnesty to most ex-rebels in 1872.
Before the violent Jan. 6, 2021, attack on the Capitol, even many constitutional lawyers rarely thought about Section 3, a provision that isn’t taught at most law schools and hadn’t been used in court for more than 100 years. Legal scholars believe the only time it was cited in the 20th century was to deny a seat in Congress to a socialist on the grounds that he opposed U.S. involvement in World War I.
The clause’s revival is due to an unlikely combination of Democrats and Republicans, liberals and conservatives, all rediscovering 111 words in the nation’s foundational legal document that have now become a threat to the former president’s attempt to return to office.
THE FIRST TARGETS
Once she had dried her tears after watching rioters storm the Capitol, Norma Anderson sat down with one of the multiple copies of the Constitution she keeps around her house in the Denver suburbs and reread the 14th Amendment.
“I made the connection,” Anderson, now 91, said in an interview.
Anderson is a former Republican leader of Colorado’s General Assembly and state Senate, and eventually would become the lead plaintiff in the case now before the Supreme Court. The evening of Jan. 6, she read the provision that prohibited anyone who swore an oath to “support” the Constitution and later “engaged in insurrection” against it, or provided “aid and comfort” to its enemies, from holding office.
Anderson didn’t yet have the chance to spread the word beyond her own circle, but in the days after Jan. 6, thanks to scholars such as Magliocca and the University of Maryland law professor whose book project had inspired him, Mark Graber, Section 3 started its slow emergence from obscurity.
“We were the two people doing a little work on Section 3,” Graber said of Magliocca and himself. “We thought this is real interesting; it makes great chitchat at the American Legal Historians Society.” He added, “Then Donald Trump did academics a favor.”
Though the provision was occasionally mentioned, conversation in Washington and the legal profession in general remained dominated by Trump’s second impeachment — where he was acquitted by the Senate after 43 Republicans voted not to convict him.
It took months before the first mention of Section 3 in a public document. Free Speech For People, a Massachusetts-based liberal nonprofit, sent letters to top election officials in all 50 states in June 2021, warning them not to place Trump on the ballot should he run again in 2024 because he had violated the provision.
The group didn’t hear back from any of them.
“People were just treating it as something that was not serious,” recalled John Bonifaz, the group’s co-founder.
In January 2022, Free Speech For People filed a complaint in North Carolina to disqualify Republican Rep. Madison Cawthorn under Section 3 for his involvement in the rally that preceded the Capitol attack. But Cawthorn lost his primary in that year’s midterms, mooting the case.
At the same time, another liberal watchdog group was starting its own Section 3 campaign.
After Jan. 6, Citizens for Responsibility and Ethics, also known as CREW, in Washington was focused on Trump’s impeachment and other possible legal penalties against those who participated in the Capitol attack before exploring other remedies, said its chief counsel, Donald Sherman.
By January 2022, the group decided to test Section 3 in court.
“It wasn’t just Trump we were focused on,” Sherman said in an interview. “One thing we’ve been very careful about is we don’t think it’s appropriate to pursue outside or longshot cases.”
Looking for a lower-level defendant, Sherman’s organization zeroed in on Couy Griffin. The subject of one of the earliest Jan. 6 prosecutions, Griffin already has a rich legal record. He was was recorded in a restricted area of the U.S. Capitol as head of a group called Cowboys for Trump. Griffin was convicted of illegally entering the Capitol, but acquitted of engaging in disorderly conduct.
He still served as a commissioner in a rural New Mexico county, which kept CREW’s attention on him. On Sept. 6, 2022, a New Mexico judge ordered Griffin removed from his position. It was the first time in more than 100 years an official had been removed under Section 3. Griffin has appealed to the Supreme Court.
CREW prepared to turn to other Section 3 targets. But it quickly became clear Trump would be next. He announced his campaign for president on Nov. 15, 2022.
