Justice Kavanaugh: ‘President Trump has not been charged’ with insurrection

2DFRG95 U.S. Supreme Court Justice Brett Kavanaugh speaks at his ceremonial swearing in as his wife Ashley looks on in the East Room of the White House October 08, 2018 in Washington, DC, USA. Photo by Olivier Douliery/ABACAPRESS.COM

Photo: Alamy

U.S. Supreme Court Justice Brett Kavanaugh stated an obvious but integral point during Thursday’s oral arguments in Trump v. Anderson, whereby attorneys for President Trump and Colorado voters represented their clients in the ongoing 14th Amendment case.

Justice Kavanaugh pointed out that “President Donald Trump has not been charged” with insurrection.

For reference, just a few weeks ago, the Colorado State Supreme Court ruled that President Trump was disqualified from appearing on the 2024 ballot based on an argument rooted in the 14th Amendment, Section 3 of the U.S. Constitution. This section states, somewhat broadly, that anyone who has engaged in an “insurrection or rebellion” cannot hold public office.

However, the controversy stems from how broadly this section can be applied and to whom.  

While asking questions of Colorado attorney Jason Murray, Justice Kavanaugh said:

“Some of the rhetoric of your position seems to suggest, unless the states can do this, no one can prevent insurrectionists from holding federal office. But obviously, Congress has enacted statutes, including one still in effect, Section 2383 of Title 18. [It] prohibits insurrection – it’s a federal criminal statute. And, if you’re convicted of that you are – it says, ‘shall be disqualified from holding any office.’ And so, there is a federal statute on the books, but President Trump has not been charged with that.”

For context, Section 3 of the 14th Amendment states:

“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. But Congress may by a vote of two-thirds of each House, remove such disability.”

The key concern of Justice Kavanaugh’s comments seemed to rest on the fact that President Trump, to this point, has never been convicted of a rebellion or an insurrection amid these 14th Amendment arguments.

The justice concluded, “If the concern you have, which I understand, is that insurrectionists should not be able to hold federal office, there IS a tool to ensure that that does not happen, namely, federal prosecution of insurrectionists, and if convicted, Congress made clear, you are automatically barred from holding a federal office. That tool exists, you agree, and could be used.”

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