LANSING, Mich. — A group seeking to get Donald Trump ruled ineligible for the 2024 presidential ballot in Minnesota has mounted another effort to disqualify the former president, this one in Michigan.
Free Speech For People, a national nonprofit, filed a complaint Friday in Michigan’s statewide Court of Claims, arguing the former president's encouragements of the Jan. 6, 2021 attack on the U.S. Capitol made him "constitutionally ineligible for the office of President of the United States, or for any other public office.”
“Despite knowing that violence was ongoing at the Capitol and that his violent supporters would heed a call from him to withdraw, for 187 minutes, Trump refused repeated requests that he instruct his violent supporters to disperse and leave the Capitol,” attorney Mark Brewer wrote in the group's complaint, which named Michigan voters Robert LaBrant, Andrew Bradway, Norah Murphy and William Nowling as plaintiffs and Secretary of State Jocelyn Benson as its sole defendant. “Instead, he reveled in the violent attack as it unfolded on television.”
Through those actions, Brewer wrote, Trump “engaged in insurrection or rebellion, or gave aid and comfort to its enemies,” and so was disqualified under Section 3 of the Fourteenth Amendment.
“Our predecessors understood that oath-breaking insurrectionists will do it again, and worse, if allowed back into power,” the group's legal director, Ron Fein, said in a statement. “They enacted the Insurrectionist Disqualification Clause to protect the republic from people like Trump.”
Free Speech For People spearheaded an effort earlier this month to have the Minnesota Supreme Court declare Trump ineligible for that state's presidential ballots.
Both of of the group's actions hinge on the theory that the Section 3 disqualification, barring those who have violated oaths to uphold the U.S. Constitution from holding office, is still in effect.
The provision, passed in the immediate aftermath of the U.S. Civil War and briefly applied to ex-Confederates, has been used only rarely since the Reconstruction period. Congress granted blanket amnesty to those ex-Confederates late in the 19th century, an action Trump's defenders and some legal scholars have argued effectively nullified the prohibition.
Disqualification efforts picked up steam late this summer after the Pennsylvania Law Review published an article by two members of the conservative Federalist Society arguing the prohibition’s “full legal consequences have not been appreciated or enforced,” and that amnesty legislation had not, as often argued, repealed the disqualification in effect.
Trump meanwhile has argued his conduct on and around Jan. 6 was protected by the First Amendment, mirroring his defenses against the criminal charges he faces over his role in the Capitol attack.
Michigan is the first swing state to see Section 3 challenges to Trump’s candidacy. The theory’s judicial record so far is mixed.
Free Speech For People's efforts to disqualify Georgia U.S. Representative Marjorie Taylor Greene from the ballot foundered last May. But the group Citizens for Responsibility and Ethics in Washington filed a similar suit in Colorado early in September, and successfully removed Cowboys for Trump founder Couy Griffin from his seat on the County Commission of Otero County, New Mexico, after he was convicted of trespassing in connection with the January 6 attack.
Free Speech For People is set to argue its case before the Minnesota Supreme Court early in November.
Before this wave of disqualification efforts, the last person to be disqualified under Section 3 was socialist politician and journalist Victor Berger, who was ejected from Congress in 1919 after winning a House seat while under indictment for promoting anti-war views in his Milwaukee newspaper. Wisconsin held a special election to fill Berger’s vacant seat, which Berger won, and the seat remained vacant until 1921. Berger was reelected in 1922, and again in 1924 and 1926.
Subscribe to Closing Arguments
Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.