The Jan. 6 U.S. Capitol attack was a "textbook" insurrection, University of Maryland Francis King Carey School of Law professor Mark Graber, PhD, JD, MA, argues in a Supreme Court amicus brief backing efforts to disqualify former President Donald Trump from future office.
The brief supports a Colorado Supreme Court decision that barred Trump from the state’s ballot based on Section 3 of the 14th Amendment of the U.S. Constitution. That section bars from office anyone who previously took an oath to support the Constitution but then engaged in “insurrection or rebellion.”
Trump’s legal team has appealed the Colorado decision and the case — Trump v. Anderson — went before the U.S. Supreme Court on Feb. 8.
Graber, a University System of Maryland Regents Professor at Maryland Carey Law and a leading scholar on constitutional law, argues Section 3’s meaning was well-established when enacted after the Civil War. His brief cites over 30 federal and state court rulings defining insurrection as an assemblage resisting law by force or intimidation for a public purpose.
“All of them talk about insurrection, and all of them say approximately the same thing,” Graber says, giving the four key elements he says were met on Jan. 6.
Graber explains insurrection has four legal elements. First is “an assemblage of people.” Hundreds of people breached the Capitol and thousands trespassed on federal land. Second is "resisting law.” Rioters tried to stop Congress from certifying Trump's election loss.
Third is “using force or intimidation.” The mob violently assaulted police officers who were trying to defend the Capitol. Fourth is "a public purpose.” Rioters acted on Trump's baseless claim of a “stolen” election.
“They had a public purpose. It’s documented Donald Trump was told your rhetoric is causing violence,” Graber says. “What did Trump do? He doubled the intensity, the rhetoric.”
Citing Trump's rhetoric falsely claiming election fraud and urging supporters to “fight,” Graber argues there's a strong case he engaged in insurrection. He says Trump’s defense relies on technicalities rather than contesting that claim.
Graber says Trump’s legal team’s assertion that Section 3 doesn't cover presidents is a bad and “rather desperate” argument. He notes historical references to presidents as officers of the United States and says ratifiers of the amendment understood it would apply.
“We know the people who wrote Section 3 refer to the president as an officer of the United States,” Graber says. “We know in the debates over ratification, everybody said if you’re an officer and you engage in insurrection — you can’t be an officer.”
Barring those regarded as traitors from office was precisely the point, he says.
“If you think Donald Trump was a traitor who engaged in an insurrection against the United States, why would you ever vote for him?” Graber says.
Graber began researching Section 3 while writing a book on the 14th Amendment titled “Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform After the Civil War” before the Capitol attack brought the issue to the forefront. He and another scholar have since been tapped as experts in cases seeking to invoke what’s known as the “disqualification clause” against Trump.
In fact, Graber’s historical and legal testimony was instrumental in the removal of Otero County, New Mexico Commissioner Couy Griffin due to his involvement in the Jan. 6 attack on the Capitol. According to lawyers who brought the case, the decision marks the first time since 1869 that a court has disqualified a public official under Section 3 and the first time that any court ruled the events of Jan. 6, 2021, an insurrection.
Ultimately, Graber views Section 3 as upholding a core tenet of democracy — that following fair elections, candidates must accept defeat peacefully rather than resort to violence.
“Once ballots are counted, there is no recourse to bullets,” Graber says, quoting Abraham Lincoln. “Those who have recourse to violence after votes should not be candidates for democratic government.”