According to Mediaite, the decision of the Colorado Supreme Court to exclude former President Donald Trump from the 2024 presidential ballot under Section 3 of the 14th Amendment has sparked controversy, with critics questioning the ruling as Trump has not been convicted of the specific crime of inciting insurrection. In response, legal scholar Ilya Somin argued in a column for Reason that this criticism is unfounded, drawing parallels to historical cases and the structure of the legal system.
Somin pointed out that in the American legal system, events can give rise to both civil and criminal liability, and a criminal conviction is not a prerequisite for civil liability. He cited the example of O.J. Simpson, who was found not guilty of criminal charges in the murder of his ex-wife and her friend but was later held liable in a civil case. Somin emphasized that disqualification under Section 3 is a civil issue, not a criminal one, and it does not result in prison sentences or other criminal sanctions.
The legal scholar argued that having different outcomes in civil and criminal cases arising from the same acts is a deliberate feature of the legal system, with higher standards for imposing criminal sanctions due to the serious consequences for the defendant’s life and liberty. In Trump’s case, the potential consequence is the loss of eligibility for various government positions.
“The same reasoning applies to Trump,” Somin continued. “The absence of a criminal conviction for insurrection doesn’t immunize him from civil proceedings arising from his role in the January 6 attack on the Capitol. Disqualification under Section 3 is a civil issue, not a criminal one. It cannot result in a prison sentence or other criminal sanctions.”
Having different verdicts in a civil and criminal case arising from the same acts is a feature, not a bug, of our system, as the legal standard for imposing criminal sanctions is higher — with good reason, because a defendant’s life and liberty are at stake. Wrote Somin, “In this case, Trump doesn’t even face the prospect of forfeiting any of his property or paying damages. All he stands to lose is eligibility for various state and federal government jobs.”
Somin also highlighted the historical context of Section 3 of the 14th Amendment, which was passed after the Civil War to address the election of “completely unrepentant” former Confederates to Congress. He noted that none of the disqualified ex-Confederates during Reconstruction had been convicted of crimes related to their roles in the Civil War. The intent was to prevent those with connections to the insurrection from holding public office.
In conclusion, Somin argued that the absence of a criminal conviction for insurrection does not immunize Trump from civil proceedings under Section 3. He emphasized that the historical context and purpose of the amendment support disqualification based on the actions taken during the January 6 attack on the Capitol, without the need for a separate criminal conviction.
