Trump is continuing to provide “aid and comfort” to Jan 6 insurrectionists in violation of Section 3 of 14th Amendment

Trump must be banned from the ballot

Donald Trump did not just “engage” in the Jan 6 insurrection in violation of Section 3 of the 14^th Amendment disqualifying him from office, but Trump is continuing to provide “aid and comfort” to the insurrectionists in violation of the 14^th Amendment. This is even more of a reason why Trump must be barred from ever serving in any office ever again.

As I laid out in my article last week urging people to file a complaint with your secretary of state to disqualify Trump, Section 3 of the 14^th Amendment bars Trump from any office.  That Amendment provides that any person who had previously taken an oath “to support the Constitution of the United States” and then “engaged in insurrection against the same” is barred from holding “any office.” But many addressing this issue are leaving out an important part of that Section, which also disqualifies from office any person who has “given aid or comfort” to the insurrectionists.

At the outset, it’s important to note that the term “insurrection” as contemplated by the 14^th Amendment means a large number of people “acting to prevent the execution of one or more federal laws…through the use of violence, force, or intimidation by numbers.” That’s what a judge in New Mexico last year explained after looking at the history behind Section 3 in a case banning from office a Trump supporting elected official involved in Jan 6. The judge concluded that Jan 6 was an “insurrection” given the mob sought to prevent the execution of a federal law, the Electoral Count Act, which mandated that Congress was to meet on Jan 6 to certify the results of the Electoral College.

Numerous legal experts have backed up that finding up and concluded that Trump had “engaged” in an insurrection given he was the reason for the Jan 6 attack. After all, one of the key findings of the Jan 6 House committee as noted in its final report is that “evidence has led to an overriding and straight-forward conclusion: the central cause of January 6th was one man, former President Donald Trump.”

But Trump’s violation of Section 3 of the 14^th Amendment has not ended. He is continuing to provide “aid and comfort” to the Jan 6 insurrections by not just his words but by his overt acts—an important point from a legal point of view.

“Aid and comfort” under Section 3 of the 14^th Amendment has not been addressed by our courts in any great detail. However, after the 14^th Amendment was ratified, the House Committee of Elections while considering to seat or bar a member of Congress for violating this Amendment declared that ‘aid and comfort’ may be given to an enemy by words of encouragement, or the expression of an opinion, from one occupying an influential position.”

And in the New Mexico case, the court noted that the 14^th Amendment ban would apply if a person performed “an “overt act” knowing that act would “aid or support” the insurrection.”

Also instructive is that the “aid or comfort” language tracks the Treason statute, 18 U.S.C. § 2381. Thus, treason cases can provide a sense of what is meant by this phrase. As the legal publication LawFare.com explained: “harboring an enemy spy or supplying an enemy spy with funds is “giving aid and comfort,” but simply having one’s “heart on the side of the enemy” does not amount to aid or comfort under the treason statute absent some overt act.”

In fact, the US Supreme Court in upholding a treason conviction in 1947 found that otherwise legal acts can be considered giving “aid or comfort.” In that case, the defendant harboring and sheltering in his home his son who was an enemy spy and saboteur, assisting him in purchasing an automobile, and in obtaining employment in a defense plant—while all acts which a father would naturally perform for a son—were still considered giving aid and comfort in violation of the law.

Look at Trump’s continued efforts of overtly providing “aid and comfort” to Jan 6 insurrections. Just two weeks ago, Trump welcomed to his golf club in Bedminster, New Jersey a fundraiser for Jan. 6 defendants. And not only did he welcome them, as NBC News reported, Trump participated in the event to raise money for those who attacked our Capitol as part of Trump’s insurrection to prevent the execution of the Electoral Count Act.

This is not the first time Trump has provided “aid and comfort” to the Jan 6 insurrectionists.  In June—to little press fanfare—he welcomed to his Jersey golf course and helped raise funds for the Patriot Freedom Project, an organization that supports the Jan 6 attackers and appallingly claims on its website that the “January 6 Defendants are Political Prisoners… who have been targeted by the Biden DOJ because of their political views.”

The founder of the organization is Cynthia Hughes, the aunt of Jan. 6 defendant Timothy Hale-Cusanelli — who prosecutors noted “subscribes to White Supremacist and Nazi-Sympathizer ideologies that drive his enthusiasm for another civil war.”  Hale-Cusanelli—who had in the past dressed up as Adolf Hitler—was sentenced to four years in prison for his role in the insurrection. At the event, Trump spoke telling the crowd that included at least one Jan 6 defendant, “I’m going to make a contribution.”

Think about this for a moment: The former President of the United States was part of a fundraiser to provide aid and comfort to those who attacked our Capitol on Jan 6. This is akin to Trump after 9/11 or the bombing of Oklahoma City federal building raising funds for those involved in these acts of terrorism. And to be clear, Jan 6 was as an “act of domestic terrorism” as FBI Director Christopher Wray testified before Congress.

And there’s more. Earlier this year, Trump teamed up with the J6 Prison Choir—compromised of approximately twenty Jan 6 prisoners in a Washington D.C. prison—where he recorded the Pledge of Allegiance intercut with the inmates singing the national anthem.  The song was recorded to raise funds to support the families of Trump supporters who were engaged in the Jan 6 insurrection. As HuffPost reported, “On YouTube, Trump is credited as the composer of the track.”

Then there are Trump’s words in support of the Jan 6 attackers who sought to prevent the peaceful transfer of power. He has not only vowed to pardon them and issue a formal apology from the US government but has pledged retribution on their behalf. For example at his March rally in Waco, Texas, Trump bellowed to the audience about the Jan 6 defendants: “You will be vindicated and proud.” He then added, “The thugs and criminals who are corrupting our justice system will be defeated, discredited and totally disgraced.”

These actions are intended to send a message by Trump that if you engage in violence or an insurrection in my name, I will have your back. And there are real concerns that some MAGA extremists will engage in more violence—or even another insurrection—as we get closer to the 2024 election given they know Trump will pardon them if he wins.

If the framers of the 14^th Amendment were alive to today, they would be demanding Trump be barred from the ballot given his role in both the insurrection itself and his providing aid and comfort to the insurrectionists.  This is backed up by the words of Senator Lyman Trumbull, an Illinois Republican, who explained during the Senate debate on Section 3 of the 14th Amendment that, “the object of this provision is to place these rebellious States in the hands of loyal men.”  Given that sentiment, there is no way they would ever allow a person like Trump to hold any office-let alone be President of the United States--after his role in the Jan 6 insurrection.

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