by David Congdon
Mark A. Graber, the Regents Professor at the University of Maryland Francis King Carey School of Law, has sent an amicus curiae (friend of the court) brief in support of the respondent in the case of Donald J. Trump v. Norma Anderson, et al., naming his 2023 book with the University Press of Kansas as a key support for his position.
The case assesses whether Trump has violated the Fourteenth Amendment by virtue of his role in the attempted insurrection on January 6, 2021. Graber sides with Norma Anderson and the Colorado Supreme Court in judging that Trump has indeed engaged in insurrection and, according to the criteria in the Constitution, should be excluded from holding any office in the United States. Graber points out that “he is the only scholar to have published a peer-reviewed university press book on the subject.” See Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (University Press of Kansas, 2023).
Graber summarizes his argument as follows:
When Section Three of the Fourteenth Amendment was framed, constitutional lawyers recognized that an insurrection involved a) an assemblage, b) resisting any law or interfering with the course of a governmental proceeding, c) by force or intimidation, d) for a public purpose. Persons engaged in an insurrection when they incited, assisted, or otherwise acted in concert with others bent on resisting law by force or violence for a public purpose. The Members of Congress who played a crucial role drafting Section Three stated that no difference existed between inciting and engaging in an insurrection.
The Colorado Supreme Court adopted legal standards that are consistent with how the legal community understood insurrection at the time Section Three was framed and ratified. In particular, the justices applied the correct nineteenth century standards to decide whether an insurrection occurred on January 6, 2021, and whether Donald Trump engaged in that insurrection.