CREW’s Donald Sherman on the Insurrection Clause Challenge to Trump’s Candidacy

Headshot of Donald Sherman, Courtesy of CREW. Illustration by Susanna Granieri.

Donald Sherman is the executive vice president and chief counsel at Citizens for Responsibility and Ethics in Washington (CREW), the non-profit organization that, in September 2023, filed the novel challenge to former President Donald Trump’s candidacy in Colorado, citing his actions on Jan. 6, 2021.

The challenge, which was brought on behalf of four Republican voters and two unaffiliated voters, claims Trump violated Section 3 of the 14th Amendment, a Civil War-era provision that bars someone from holding any office if they had “taken an oath” to “support the Constitution” and then “engaged in insurrection or rebellion” against it.

Several such legal challenges were filed in states across the country. And in a 4-3 decision in December, the Colorado Supreme Court was the first in history to disqualify a presidential candidate from the ballot under the provision.

“We do not reach these conclusions lightly,” the decision stated. “We are mindful of the magnitude and weight of the questions now before us. We are likewise mindful of our solemn duty to apply the law, without fear or favor, and without being swayed by public reaction to the decisions that the law mandates we reach.”

Trump appealed to the Supreme Court, which agreed to hear the case in January, arguing that the provision does not apply to the president, that Jan. 6 was not an insurrection, and that he did not “engage” in the attack on the Capitol but was merely exercising his freedom of speech. During oral arguments on Feb. 8, the Supreme Court appeared skeptical of CREW’s argument.

First Amendment Watch spoke with Sherman about his organization’s challenge, in which he reflected on the Supreme Court’s oral arguments, discussed the importance of the court system to consider constitutional violations, no matter how novel, and warned of the effects on democracy if Trump is not held accountable.

Editor’s note: This interview has been edited and condensed for length and clarity.

FAW: Can you tell me about the 14th Amendment and intentions of its writers, and how it’s been used previously to disqualify candidates?

DS: Section 3 of the 14th Amendment was ratified in 1868 and it bars people who took an oath to the Constitution, as a state or federal officer, and engaged in insurrection, like the Constitution states, from holding such offices in the future. It was used most frequently in the aftermath of the Civil War to prevent insurrectionists from entering positions in state and federal government. So then we get to Jan. 6. There’s widespread consensus across the political divide that Jan. 6 was an insurrection in the aftermath of the attack on the Capitol, and my organization brought litigation on behalf of three New Mexico residents to remove one official who engaged in the insurrection, Couy Griffin, who was a county commissioner in Otero County, New Mexico, and that was using this provision. So that was the first successful trial to enforce Section 3 of the 14th Amendment in more than 155 years. Obviously the second successful trial was the trial that we brought in Colorado, which did not succeed at the trial level but succeeded on appeal to the Colorado Supreme Court in disqualifying former President Trump based on his role in the Jan. 6 insurrection.

FAW: What sparked the organization’s involvement and its plan to file a challenge in Colorado? Who devised this strategy?

DS: Our team and I did. The effort really started in the aftermath of our victory in New Mexico. Our team started thinking about what states had good state law in order to bring a challenge on behalf of voters. As you may know, Article II gives states broad authority to oversee the administration of elections and so these types of challenges are the province of state law. And then when former President Trump announced that he was running for federal office again, it provided a vehicle in order to bring an enforcement action against the former president, based on Section 3. So we started looking at what states have state law vehicles to bring a ballot challenge on behalf of voters, as well as what states are early enough in the primary calendar to bring such an action and have it get resolved, potentially, up to and including the U.S. Supreme Court, before most states had voted in their primaries. And so that process really sort of narrowed the map to Colorado.

The U.S. Capitol Building is stormed by a pro-Trump mob on Jan. 6, 2021

In a Reuters file photo, a mob of supporters of U.S. President Donald Trump fight with members of law enforcement at a door they broke open as they storm the U.S. Capitol Building in Washington, D.C. Jan. 6, 2021. (Reuters/Leah Millis)

FAW: Does Trump have a First Amendment argument here? If he does, is it a strong one? Or is the question of whether or not Jan. 6 was defined as an insurrection no longer the central piece?

DS: Well, the former President certainly tried to make a First Amendment argument at the lower court, but eventually did not really brief that as it moved through the trial court, and I think it was shown to be fairly weak. The 14th Amendment is part of the Constitution just like the First Amendment. And so, this isn’t like the sort of regular statute where the First Amendment trumps, but instead, the First Amendment and Section 3 of the 14th Amendment need to be read in harmony. And to that end, it was quite clear then, in the aftermath of the Civil War, from Attorney General [Henry] Stansbury, who was implementing disqualifications at the time and made clear that language of incitement was sufficient to constitute engagement in insurrection. And I think that was the general understanding at the time and how contemporary officials read the two amendments in concert. But also, even looking forward, the trial court and the Colorado Supreme Court found that Donald Trump’s speech was incitement to violence, which met the Brandenburg standard. There was evidence at Trump’s five-day trial which demonstrated his pattern of speech is consistent endorsement of violence of the supporters and his expectation, and this follows understanding that, when he told them to “fight like hell,” “I’ll be there with you,” and to say that multiple times, it was incitement to imminent lawlessness and violence, which we obviously saw at the Capitol. That, coupled with his tweet at 2:24 p.m., while he knew the Capitol was under siege, putting a target on Mike Pence in the Capitol, saying Mike Pence didn’t have the courage to do what was necessary, the trial court and the Colorado Supreme Court all found that those statements met the Brandenburg standard. And then we also had amicus briefs filed at the Colorado Supreme Court level and at the U.S. Supreme Court level from leading First Amendment scholars in academia — Floyd Abrams, Dean [Erwin] Chemerinsky at Berkeley, Martha Minow at Harvard — who agreed with us that the First Amendment provided no protection for Donald Trump’s incitement of insurrection.

FAW: The Supreme Court heard these arguments on Feb. 8. What was your reaction to the hearing? Most observers agreed that the justice’s appeared “skeptical” of your arguments. How would you respond to that?

DS: Their job is to be skeptical, right? This case is novel and the stakes are incredibly high. It’s hard to imagine that we would have walked into the U.S. Supreme Court, asked them to do something as monumental as remove a candidate from the presidential ballot, especially a former president of the United States and a leading candidate for the presidency again, without getting hard questions. That being said, I think that the court, [in reflection on] the oral argument, really looks at our merits briefing and looks at the amicus briefs filed in support of our clients. They’re not going to find convenient off-ramps. I mean, they are the Supreme Court. Their job is to answer tough questions, not to duck them. And I think some of the off-ramps that their questions suggested an interest in, are either foreclosed, because they’re not consistent with the text of Section 3 or not consistent with the historical understanding of Section 3, or because they would raise more questions than I think they would answer for the justices when they dig into it. So I’m not surprised that the court asked tough questions, even approached these issues with skepticism, but I think at the end of the day, we are right on the facts, right on the law, and that the justices will agree with us. And that if they don’t, they missed the mark.

FAW: Chief Justice John Roberts said a disqualification of Trump could lead to other challenges to disqualify candidates, and said that he is “sure some of those will succeed.” Do you agree with him?

DS: I think that question, allied with the fact that we had a full trial with former President Trump in which he fully participated, he was represented ably and put on witnesses, cross-examined our witnesses, and after a five-day trial, a factfinder found that Donald Trump had engaged in insurrection by clear and convincing evidence, nevermind the fact that that evidence confirmed what we as Americans saw on Jan. 6 with our own eyes. And so you got a fulsome trial. And then it was reviewed on appeal. And ultimately, it’s before the Supreme Court to decide. I mean, this is why we have courts. I don’t think it’s just so easy, as Chief Justice Roberts suggests, to go find a courtroom somewhere and throw a bunch of unsupported allegations at a court and have a court rubber stamp the disqualification of an official. That’s certainly not what happened in Colorado. And I think if it is attempted, directed at another candidate, regardless of party, on a thin record, I’m confident that the courts will reject it. That’s literally why we have courts, and it’s certainly why we have a Supreme Court. So the idea that we should be worried that bad actors will bring bad cases, that threat exists in this moment, that threat exists all the time. It’s why we have courts and it’s why we need judges to soberly review the facts in the law, rather than looking for reasons to duck their responsibility.

Trump holds a campaign rally ahead of the Republican caucus in Las Vegas

Republican presidential candidate and former U.S. President Donald Trump speaks at a campaign rally ahead of the Republican caucus in Las Vegas, Nevada, Jan. 27, 2024. (Reuters/Ronda Churchill)

FAW: Could a decision in favor of barring Trump from the ballot give his supporters in staunch red states a pathway to bar Biden from their primary ballots?

DS: Not a legitimate one. I mean, again, Section 3 was designed for this moment and you know, these threats or concerns that, ‘Well, this could have a boomerang effect,’ is exactly what Donald Trump and his supporters want. They want people to be so concerned about backlash that courts and the country will shrink from enforcing the Constitution in this moment. There wasn’t a lot of disagreement about what Jan. 6 was on Jan. 6. Every factfinder that has reached a merit to this question has found that Jan. 6 was an insurrection, and that Donald Trump engaged in that insurrection. That includes the trial court in Colorado, the Colorado Supreme Court, that includes the secretary of the state of Maine, that includes a bipartisan report after an 18-month investigation by the Jan. 6 committee. So the idea that there is any well-run record here in respect to Donald Trump is not a credible argument. And the idea that some bad actors will attempt to manipulate a decision against the former president and bring a meritless case against President Biden or anybody else … It’s a certainty that that will happen. And again, this is why we have courts. You know, if courts are too afraid to do their job, that’s when the insurrectionists win.

The one other thing I would say about this, this concern is less about what happens in the election in 2024. It is more about whether we have free and fair elections 50, 100, 150 years from now, or whether a sitting president, or any other government official who takes an oath to the Constitution, can incite a violent mob to overturn an election. That takes power away from them. And so the threat of not holding Trump accountable is far greater, and far more dangerous for the future of our democracy, than enforcing the Constitution against someone who every factfinder that has looked at this, said incited an insurrection. Again, Section 3 of the 14th Amendment was built for this moment. And if the court takes a path in this moment, it is hard to imagine us being able to use this tool as the defense mechanism it was meant to be going forward. And that’s far more risky than holding one candidate accountable at this particular moment in time.

This case is historic, yes. But in part because Donald Trump’s actions were so exceptional. And the fact that this moment is historic is all the more reason to rise to the moment, rather than to stray from it. I believe that the text of the 14th Amendment is clear, the historical evidence is clear, that this provision was meant with Jefferson Davis in mind, to prevent the leaders of the Confederacy from getting the keys to the government again. And I also believe that if Section 3 isn’t enforced in this moment against the inciter of the Jan. 6 insurrection at the Capitol, then future generations looking back at this case will have to question whether it can be used at all.

FAW: Trump’s rhetoric and actions have certainly planted seeds of doubt for many Americans regarding the trustworthiness of elections. Some could argue that allowing him on the ballot would show a further commitment to fair elections, rather than giving election-deniers another reason to argue that American elections are swayed or fixed. What do you think of this?

DS: We’re a constitutional democracy, you don’t get to opt out from the Constitution, just because conspiracy theorists are going to be upset about it. There have been any number of moments in history, where a large portion of the population would be upset because the Constitution was enforced in a certain way. You don’t have to look past the desegregation cases to understand the significance of what might have happened and what it would mean for American democracy if the court shrunk from its responsibility to enforce the 14th Amendment, just because doing so would upset a significant portion of our population. I would also point out that the reason we got here is because Donald Trump attempted to disenfranchise the 81 million Americans who voted for his opponent. The Constitution says that you cannot do that again. When you incite an insurrection against the Constitution, you don’t get a chance to be in government again. You don’t get a chance to break that oath again. We fought a war where hundreds of thousands of Americans gave their lives, and out of that war came this provision. This defense mechanism. Certainly we would not ask the Supreme Court to enforce this provision lightly. But by the same token, this provision, which was paid for in the blood of our countrymen, cannot be dismissed so lightly. And so I would say that the 14th Amendment, in particular, is an essential part of our democracy and it would undermine our democracy not to enforce it, particularly against someone who again, sought to disenfranchise, in violence, 81 million Americans and disrupt the peaceful transfer of power for the first time in our nation’s history. If not this moment, then when?