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Posted: 2024-01-18T22:27:13Z | Updated: 2024-01-22T19:28:00Z

Next month, the Supreme Court will hear arguments over whether former President Donald Trump is an insurrectionist and therefore, whether hes legally permitted to run for office again.

But Trump isnt the first politician to face that question and not even the first since the Jan. 6, 2021 attack on Congress.

In fact, at least seven other Republicans , from local officials to members of Congress, have faced similar legal challenges over allegations that they participated in or aided an insurrection after the 2020 election. The 14th Amendment disqualifies anyone who, despite having sworn an oath to defend the U.S. Constitution, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.

Six current and former House members, including Rep. Marjorie Taylor Greene (R-Ga.) and former Rep. Madison Cawthorn (R-N.C.), have faced 14th Amendment challenges based on their actions leading up to Jan. 6.

In one 2022 case, the 156-year-old law cost a former county commissioner his ability to serve in any state or federal elected position the first time in over 100 years the law had been used to that effect.

The legal wrangling in these cases, even the ones that were unsuccessful, helps shine some light on the arguments against Trump, and the questions the Supreme Court will have to answer as it determines whether the Colorado Supreme Court was correct in ruling that Trump cannot run for office.

Its unlikely that a majority of the justices will decide to kick Trump off the presidential ballot this year, given the monumental historical stakes and the rightward tilt of the Court.

Still, some conservatives have come to believe that the amendment should in fact disqualify Trump. In an influential article first released last year, legal scholars William Baude and Michael Stokes Paulsen argued that not only is the 14th Amendments disqualification language applicable today, but also that it is enforceable by both courts and election officials nationwide and covers a broad range of activities, including Trumps actions.

Past Challenges Have Shaped Arguments Over Trump

The challenge to Couy Griffin was the most dramatic of those attempted so far. The former Otero County, New Mexico commissioner is the first politician to be disqualified from holding office due to violating Section 3 of the 14th Amendment since 1869 .

The relevant amendment text says that:

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.

Griffin, who posted a video of himself on the Capitol steps on Jan. 6 and was convicted for trespassing on Capitol grounds, was barred for life from holding elected state or federal positions, effective immediately, New Mexico District Court Judge Francis J. Mathew ruled in a civil case.

Notably, Mathew described Jan. 6 as an insurrection against the Constitution that fell within the scope of Section 3.

The civil suit against Griffin was led by New Mexico residents represented by the group Citizens for Responsibility and Ethics in Washington, or CREW. CREW also represented the plaintiffs behind the Colorado challenge that, for now, has disqualified Trump.

This just went from being theoretical to being something that is legally recognized and legally possible, CREWs executive director, Noah Bookbinder, said after Mathews decision. (Trumps lawyers, meanwhile, have argued that the events of January 6, 2021, were not insurrection as that term is used in Section 3.)

The allegations against Griffin pale in comparison to those faced by many Jan. 6 defendants: He was never accused of entering the Capitol building on Jan. 6 or even personally using violence. Rather, in his earlier federal criminal trial in Washington, D.C., he faced two misdemeanor charges: illegally entering or remaining on restricted grounds, and disorderly conduct. After a two-day bench trial, Judge Trevor McFadden, a Trump appointee, found Griffin guilty on the first charge and noted the grave tension between the county commissioners actions and his oath to the Constitution.

Trump, for his part, faces four felony charges in the federal case over his effort to overturn the election, and 13 more felony charges for the same effort in the state of Georgia.

The cases against Cawthorn and Greene, even though neither succeeded in forcing the lawmakers to leave office, could also carry legal implications for Trump.

Just over two years ago, a group of North Carolina voters represented by the group Free Speech for People challenged Cawthorns eligibility as a candidate, arguing in their complaint , Challengers have reasonable suspicion that Representative Cawthorn was involved in efforts to intimidate Congress and the Vice President into rejecting valid electoral votes and subvert the essential constitutional function of an orderly and peaceful transition of power. (Free Speech for People also unsuccessfully challenged the candidacies of Arizona Reps. Andy Biggs and Paul Gosar, and State Rep. Mark Finchem; they were rebuffed by a state judge who found they didnt have grounds to sue.)

The North Carolina plaintiffs noted that Cawthorn promoted the Jan. 6 demonstration ahead of time, spoke at the event, accused Democrats of trying to silence your voice, and repeatedly used language like its time to fight! and this crowd has some fight! A couple weeks before the event, Cawthorn encouraged supporters to lightly threaten their representatives. (After the mob of Trump supporters overwhelmed police and began attacking the Capitol building on Jan. 6, Cawthorn wrote on Twitter , The battle is on the house floor, not in the streets of D.C.)

Cawthorns lawyers argued that because two-thirds of Congress voted after the Civil War to grant amnesty to former Confederates, the congressman was also protected.

Theres nothing in the Amnesty Act that says its only applicable to the Civil War, Cawthorns attorney at the time, James Bopp Jr., said of the 1872 law.

The Fourth Circuit Court of Appeals disagreed with that argument.

The available evidence suggests that the Congress that enacted the 1872 Amnesty Act was, understandably, laser-focused on the then-pressing problems posed by the hordes of former Confederates seeking forgiveness, Toby Heytens, one judge on a three-judge panel that overruled a lower courts decision agreeing with Bopp, wrote. Heytens added later that the Amnesty Act did not prospectively immunize Representative Cawthorn or anyone else from Section 3s reach.

Theres no saying how Cawthorns court battle would have ended: The decision came a few days after he lost his primary fight to another Republican, current Rep. Chuck Edwards (R-N.C.) . But the failure of the Amnesty Act defense in Cawthorns case dented what might otherwise have been a key argument in Trumps favor; Trumps team has never attempted to raise Cawthorns defense and say the Amnesty Act shields Trump from a Section 3 suit.

That decision [in Cawthorns case] pretty much killed off that argument, Gerard Magliocca, an Indiana University law professor who specializes in the 14th Amendment, told HuffPost.