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Does 14th Amendment Bar Mike Johnson from Running for Congress in 2024?

Could the Disqualification Clause of the 14th Amendment be used against the newly elected U.S. speaker of the House?

Published Dec 1, 2023

 (Ricky Carioti/The Washington Post via Getty Images)
Image Via Ricky Carioti/The Washington Post via Getty Images

Speaker Mike Johnson's (R-La.) role in contesting the 2020 presidential election often brings viral claims concerning his alleged inability to run for, or hold, office. One claim that has gone viral holds that Johnson's participation in activities related to Jan. 6, 2021, could disqualify him from running for Congress in 2024 under a provision of the 14th Amendment of the Constitution:

Stating as fact that Johnson is "disqualified from running for Congress in 2024 due to a violation of Section 3 of the Fourteenth Amendment" would be false. That does not mean, however, there isn't at least a theoretical argument to be made for applying this part of the Constitution, known as the Disqualification Clause, to Johnson, based on his association with the events of the Capitol riot on Jan. 6, 2021. Section Three of the 14th Amendment stipulates:

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.

There are, then, two basic requirements for disqualification. The first is that the person has "previously taken an oath" at any state or federal level "to support the Constitution of the United States." Johnson unambiguously meets the first requirement, having taken his oath of office many times following his first swearing in as a freshman U.S. Representative in January 2017.

The second requirement is that the person had "engaged in insurrection or rebellion against" the Constitution or had "given aid or comfort to the enemies thereof." These are not precise legal terms, but U.S. Supreme Court precedent indicates that a person subject to disqualification need not have committed a crime, and that participation in an insurrection can occur without committing a crime, according to Citizens for Responsibility and Ethics in Washington (CREW).

Johnson played a central role in developing legal arguments behind the discredited theory that representatives could object to the certification of electoral votes. On Jan. 6, 2021, he was one of the 146 Republican representatives to object to the certification of Biden's victory in the 2020 presidential election.

Notably, as reported by The Associated Press, Johnson "organized more than 100 House Republicans to sign onto an amicus brief filed in support of a lawsuit from Texas’ Republican Attorney General, Ken Paxton, asking the U.S. Supreme Court to invalidate Biden’s wins in four states that gave him his winning margin in the Electoral College — Georgia, Michigan, Pennsylvania and Wisconsin."

Does Jan. 6 constitute an insurrection? There is precedent to suggest that the answer is yes. Of the only eight people who have been disqualified from office under the 14th Amendment since it was written in 1868, one of them was disqualified in 2022 for participation in the events of Jan. 6, 2021.

That person, Cowboys For Trump founder Couy Griffin, swore an oath to the Constitution in 2019 when he took office as the county commissioner for District 2 of Otero County, New Mexico. He was later convicted of trespassing when he entered the U.S. Capitol on Jan 6.

Three residents filed a civil case against Griffin, arguing he was disqualified from holding that office after that conviction. A New Mexico district court agreed, and the Supreme Court of New Mexico upheld that decision on appeal.

Do Johnson's actions before and during Jan. 6 constitute participation in an insurrection? Such a claim would likely need to be adjudicated in federal courts following a civil lawsuit challenging Johnson's qualification for holding office. A move by Congress to deny Johnson a seat following a theoretical 2024 reelection win would, in theory, be adjudicated by the Supreme Court.

While there are, in fact, Constitutional mechanisms to prevent politicians from serving in office after participating in an insurrection, no efforts, at the time of this reporting, have yet been made to apply them to Johnson's theoretical fifth term in office.

Sources

Bronstein, Hannah Rabinowitz, Holmes Lybrand,Scott. “New Mexico County Commissioner and Cowboys for Trump Founder Removed from Elected Office for Role in US Capitol Riot | CNN Politics.” CNN, 6 Sept. 2022, https://www.cnn.com/2022/09/06/politics/couy-griffin-new-mexico-january-6/index.html.

“Fourteenth Amendment  Equal Protection and Other Rights.” Congress.Gov, https://constitution.congress.gov/browse/amendment-14/section-3/#.

New Members Sworn In | House.Gov. https://www.house.gov/feature-stories/2016-11-29-new-members-sworn-in. Accessed 14 Nov. 2023.

“New Mexico Supreme Court Maintains Couy Griffin Office Removal.” KRQE NEWS 13 -  Breaking News, Albuquerque News, New Mexico News, Weather, and Videos, 19 Feb. 2023, https://www.krqe.com/news/politics-government/new-mexico-supreme-court-maintains-couy-griffin-office-removal/.

“New US House Speaker Tried to Help Overturn the 2020 Election, Raising Concerns about the next One.” AP News, 26 Oct. 2023, https://apnews.com/article/congress-house-speaker-2024-election-certification-8cd7c5a9e6ae69635bbb4624cc78e5c5.

“The Precedent for 14th Amendment Disqualification.” CREW | Citizens for Responsibility and Ethics in Washington, https://www.citizensforethics.org/reports-investigations/crew-reports/past-14th-amendment-disqualifications/. Accessed 14 Nov. 2023.

Alex Kasprak is an investigative journalist and science writer reporting on scientific misinformation, online fraud, and financial crime.