Legal Expert Cites O.J. Simpson and Robert E. Lee to Explain How Trump Can Be Kicked Off Ballot Without Being Convicted
AP Photo/Seth Wenig
The decision of the Colorado Supreme Court to kick former President Donald Trump off the 2024 presidential ballot sparked outrage, with critics of the decision questioning the ruling because the ex-president had not yet been convicted. This argument doesn’t hold water, argued Ilya Somin in a column for Reason — and he cited O.J. Simpson and Robert E. Lee to make his point.
Earlier this month, the Colorado Supreme Court ruled that Trump was disqualified from the ballot under Section 3 of the 14th Amendment to the U.S. Constitution because he had “engaged in insurrection,” finding that his actions before and during the Jan. 6, 2021 attack on the U.S. Capitol met the criteria for an insurrection.
Numerous commentators objected because Trump hasn’t been convicted of the crime of inciting, assisting, or engaging in an insurrection, and out of his four pending criminal indictments, none of them even include a charge for that crime.
Somin, who is an author and law professor at George Mason University, responded to these critics, citing both the history of the passage of the 14th Amendment and the “basic structure of our legal system.”
In the American legal system, wrote Somin, it’s common that “the same events often give rise to both civil and criminal liability,” and he cited the infamous example of Simpson to show how “a criminal conviction is not a prerequisite to civil liability,” and “even an actual acquittal on criminal charges doesn’t necessarily preclude civil lawsuits against the perpetrator.” A jury found Simpson not guilty of criminal charges for the 1994 murder of his ex-wife Nicole Brown Simpson and her friend Ron Goldman, but a separate jury in a civil case filed by the victims’ families found him liable for their deaths.
“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.”
The history of Section 3 is critically important as well, argued Somin. Passed in the wake of the Civil War, it was a response to Southern states electing “completely unrepentant” former Confederates to Congress, including Alexander Stephens, the former vice president of the Confederacy.
A criminal conviction was not part of the calculation. In fact, “[n]one of the ex-Confederates who were adjudged disqualified during Reconstruction had ever been convicted of any crimes related to their roles in the Civil War,” wrote Somin, and couldn’t have been, since “tens of thousands of Confederate troops had surrendered under parole terms that arguably exempted them from prosecution for their wartime activities so long as they did not engage in further insurrection or other lawbreaking” — and that included Confederate General Robert E. Lee.
“[T]he victorious Unionists were not willing to prosecute and imprison the many thousands of ex-Confederates covered by Section 3,” Somin observed. “On the other hand, they were determined to prevent them from holding public office.”
Read Somin’s full column at Reason.
