For what it’s worth, here’s my view of the weakest point of the merits of the Trump disqualification claim.
Section 3 of the Fourteenth Amendment declares:
No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. (emphasis added)
The key question, as to the Trump situation, is the original meaning of “engaged” (I’ll assume here that the events of January 6, 2021 amounted to an “insurrection.”)
Dictionary definitions of “engage” suggest some degree of active participation, as opposed to merely giving encouragement or support. The most relevant definition in Webster’s 1828 edition is
8. To occupy; to employ assiduously. We were engaged in conversation. The nation is engaged in war.
From Webster's 1886 edition:
To embark; to take a part; to employ one's self; to devote attention and effort; to enlist; as, to engage in controversy.
(There is an 1864 edition but I don’t have it readily available, and I assume the definition is not materially different.)
True, these definitions aren’t precise and could be read broadly or narrowly. But the Constitution itself indicates a narrow definition. The last part of the first sentence of Section 3 (bolded above) imposes disqualification in two distinct circumstances: (1) engaging in insurrection or rebellion, and (2) giving aid and comfort to enemies of the United States. That suggests a contrast between engaging, on one hand, and a broader category of giving aid and comfort. And only aid and comfort to "enemies," not aid and comfort to insurrection, is grounds for disqualification. (If the drafters wanted to include aid and comfort to insurrection, as well as aid and comfort to enemies, they could easily have done so.) Michael McConnell makes this point well here.
Further, the “aid and comfort to enemies” language comes from Article III, Section 3 of the 1789 Constitution, which provides:
Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.
As Article III, Section 3’s context (establishing a narrow definition of treason linked to war) indicates, “enemies” here was understood in the narrow sense of military adversaries. That was a common nineteenth-century use, reflected for example in Bas v. Tingy (1800), in which the Court considered whether France was an “enemy” during the Quasi-War. (The Court found that it was, because Congress had authorized hostilities amounting to undeclared war against France.)
Thus is seems likely that “enemies” in Section 3 follows the narrow definition associated with Article III, disqualifying people who give aid and comfort to military adversaries of the United States, and who therefore would be thought to have committed treason.
But insurrection is not necessarily carried out by “enemies” of the United States in this sense. Given the magnitude of the Civil War, it might well be thought that Southern forces were “enemies” so that aid and comfort to them would be grounds for disqualification. (Alternatively, one might read “enemies” even more narrowly to refer only to foreign enemies.) In either event, though, “enemies” would not encompass lower-level insurrections that did not amount to war-like military conflict. As to those insurrections, only actual engagement, not aid and comfort, would result in disqualification. This in turn indicates that Section 3 uses a narrower definition of “engage”: meaning some level of direct active involvement, in contrast to merely giving aid and comfort (or what we might today call aiding and abetting).
That still leaves a bit of ambiguity as to what it means to “engage.” Intuitively, it does not seem that it should be limited to actual presence at the site of conflict or uprising. We would say that Bin Laden “engaged in” attacks on the United States by planning and directing those attacks even though he never came to the U.S. himself. But more indirect assistance or encouragement likely counts as aid and comfort, rather than direct engagement.
In the essay linked above, Professor McConnell argues that Congress in the immediate aftermath of the Amendment’s ratification read the Section 3 disqualification narrowly in this respect:
… A Virginian, Lewis MacKenzie, was permitted to take his seat in the House despite voting in favor of secession as a pre-war member of Virginia’s House of Delegates and voting to appropriate funds to ready the state for armed hostilities with the Union. The distinction appears to be that he did not take up arms and thus did not “engage in” the rebellion. Similarly, John M. Rice of Kentucky was permitted to take his seat, despite having voted for secession as a member of his state legislature. Closer to the line, Rice had been a recruiter for the Confederate army but not himself a combatant. While some House members thought these actions were disloyal and qualified as aid and comfort to the enemy, the full House voted to seat him.
The tenor of these proceedings is that those who fought for the Confederacy had “engaged in” the rebellion, while those who supported the Confederacy in more indirect ways, such as voting for secession, voting to appropriate funds for the Confederate military, and even recruiting for the Confederate army, had not.
While not in itself decisive (I assume one could find other statements from the period using a broader definition), this post-ratification use supports the reading indicated by the text itself.
I haven’t studied the events of January 6 enough to have a definite opinion on how this analysis bears on Trump’s disqualification. Marty Lederman’s valuable guide to the Anderson litigation summarizes those events, and on his account I doubt that one would say Trump “engaged” in insurrection within Section 3’s meaning. Lederman, who argues that on the merits Trump should be disqualified, points principally to Trump’s failure to act once the disturbance at the Capitol began, as well as some rather ambiguous expressions of support.
If that’s the strongest evidence of Trump’s misconduct, it seems more in the nature of “aid and comfort” than active involvement. And since the immediate participants in the events of January 6 were not "enemies" in the meaning of Section 3, giving aid and comfort to them — while reprehensible — is not enough for disqualification.
Posted at 6:10 AM