Akhil and Vikram Amar have filed this amicus brief in Trump v. Anderson, the Colorado disqualification case. From the Summary of Argument:
In Part One of what follows, we briefly tell the story of the First Insurrection of the 1860s—the insurrection before the Second Insurrection of the 1860s, typically known today as the Civil War. In that First Insurrection, high-level executive officials in Washington, DC, violated their solemn constitutional oaths as part of a concerted plan not just to hand over southern forts to rebels, but also to prevent the lawful inauguration of the duly elected Abraham Lincoln.
The parallels between this insurrection in late December 1860 and January 1861 and the more recent Trump-fueled insurrection of late December 2020 and January 2021 are deeply and decisively relevant to today’s case. (Throughout this brief, we accept the factual findings of the trial court regarding these events.) If one thinks—as do many journalists and noisemakers lacking historical expertise—that Section Three was only about “insurrections” akin to the Civil War, then the Trump-fueled insurrection of 2020–21 pales in comparison. The invocation of Section Three looks rather cutesy, a gimmick of clever lawyers and law professors. But if one understands—as did all the men who drafted and ratified Section Three—that before the giant insurrection that began in mid-April 1861 there was a smaller one that was also of central concern, then the matter looks entirely different.
Today’s facts are remarkably similar to those of the First Insurrection of the 1860s. In a crucial mid Feb. 1868 Senate discussion about a particular cabinet officer under President James Buchanan, Senator Jacob Howard passionately explained that this ex-officer should never sit in the Senate precisely because—long before Fort Sumter fell—this powerful oath-breaker, one of the nation’s “principal public functionaries,” had been part of a cabal “endeavoring to . . . beleaguer the city of Washington with the design of seizing it, and, at all events, preventing the inauguration of President Lincoln in the succeeding March.” …
Of course, the precise actions, inactions, plots, intentions, and mens rea of Donald Trump in the insurrection of 2020–21 need to be properly evaluated before he is deemed ineligible under Section Three. As we explain in Part Two, the Constitution’s structure enables a fifty-state solution in which different states may properly have different procedures and protocols for implementing Section Three. Some states may carefully police ballot access even in primary elections; others will focus more on the general ballot. Still others may wait until vote tabulation begins; and yet another cluster of states may defer to Congress as the last actor when electoral-college ballots are unsealed. Different states may permissibly have different standards and modes of proof, both for presidential elections and state judicial elections (also covered by Section Three) and myriad elections in between.
States can have even stricter standards than Section Three provides, so long as such standards meet global federal constitutional principles (free speech, due process, racial equality, etc.) as construed by this Court, and state constitutional requirements as understood by the states’ supreme courts. See Moore v. Harper, 600 U.S. 1 (2023). There is no federal constitutional requirement that any state even hold a popular presidential election. Each state’s greater power to not hold a binding election subsumes a lesser power to structure its presidential election in its own way, within a broad range. …
In Part Two, we shall canvass a wide range of issues raised by this case and explain why many of them are easy. Of course the president is an “officer” covered by Section Three. Of course a detailed congressional statute is not necessary to implement Section Three. Of course an ineligible person is ineligible unless and until amnestied. Of course a person can engage in an insurrection with words as well as deeds. Of course an insurrection can begin locally. And so on. In the end, this momentous case is easier than it may at first seem, once one understands the historical events that triggered Section Three.
At Volokh Conspiracy, Kurt Lash responds on the "First Insurrection" point: Section Three and the "First Insurrection" … That Wasn't. From the introduction:
The smaller "First Insurrection" (the brief capitalizes the term) supposedly involved an oath breaking cabinet member named John B. Floyd. Floyd, they argue, was a co-conspirator in the First Insurrection(ist) attempt in February 1861 to disrupt the counting of electoral votes and prevent the inauguration of Abraham Lincoln. Since the framers of Section Three intended this small failed First Insurrection to fall within the meaning of the text, they must also have intended to include the similarly small but briefly successful "insurrection" of January 6, 2021.
The brief is fun and imaginative, as is everything the Amars write. Unfortunately, in this case the historical evidence does not support the argument. Their brief is an unsuccessful attempt to place someone who wasn't there at an insurrection that did not occur. Even more damningly for their side, the brief calls attention to an 1862 statute that actually blows a hole through the already weak originalist case for disqualification.
And from later on:
The brief is doubly mistaken about John B. Floyd and the so-called "Two" Insurrections. Floyd's treachery was part in the one great insurrection called the Civil War, and his treasonous actions occurred long before the 1861 counting of the electoral votes and the inauguration of Abraham Lincoln. Floyd's name remained infamous, but not because he played any role in interrupting the electoral count of the inauguration of Pres. Lincoln.
… In fact, the brief is triply wrong. Floyd could not have played a part in a First Insurrection(ist) conspiracy to disrupt the counting of electoral votes because there was no such conspiracy.
In the early weeks of 1861, Washington, D.C. was abuzz with rumors of invasion and attempted assassination. President-elect Lincoln's security team was so concerned that they made elaborate provisions for Lincoln's secret arrival in Washington. General Winfield Scott was convinced there was a secret conspiracy to disrupt the counting of electoral votes and prevent Lincoln's inauguration.
In order to determine whether such rumors had any basis in fact, on January 9, 1861, Congress appointed a select Committee to investigate the possible existence of insurrectionist conspiracies in the city of Washington. Throughout that January and early February, the select committee investigated and received hours of testimony from local informants and military officials, including General Scott. Scott was certain a secret conspiracy was afoot and he unsuccessfully tried to convince President Buchanan to bring the New York Seventh Regiment to D.C. to guard the capitol. Newspapers dutifully reported Scott's concerns, but were skeptical. According to the New York Herald, there was "not a scintilla of evidence" supporting Scott's concerns …
Also at Volokh Conspiracy, Josh Blackman and Seth Barrett Tillman respond on the "officers" point: Professor Akhil Reed Amar and Professor Vikram Amar Retreat From Their "Global" Rule for the "Offices" and "Officers" of the Constitution. From the introduction:
On January 18, Professor Akhil Reed Amar and Professor Vikram Amar filed an amicus brief in Trump v. Anderson, the Section 3 case. The brief was styled as in support of neither party, but the clear import of the brief is that the Supreme Court should disqualify Trump from the ballot. Professor Jason Mazzone describes the brief as "eye-popping and game-changing." We think that characterization is apt, but not for the reasons Mazzone described. As we read the brief, the Amars have retreated from the central position they put forward in an influential 1995 Stanford Law Review article. As their brief and other current commentary does not note their changed intellectual position, we wonder if they realize what they have done.
Posted at 12:14 AM