No.

23-719
In The
Supreme Court of the United States
--------------------------------- ♦ ---------------------------------
DONALD J. TRUMP

Petitioner,
v.

NORMA ANDERSON, ET AL.,

Respondents.
--------------------------------- ♦ ---------------------------------
On Writ of Certiorari to the
Colorado Supreme Court
--------------------------------- ♦ ---------------------------------
BRIEF OF AMICI CURIAE
GAVIN M. WAX, NEW YORK YOUNG
REPUBLICAN CLUB INC., AND NATIONAL
CONSTITUTIONAL LAW UNION INC.,
IN SUPPORT OF PETITIONER
--------------------------------- ♦ ---------------------------------

EDWARD ANDREW PALTZIK

Counsel of Record
SERGE KRIMNUS
BOCHNER PLLC
1040 Avenue of the Americas,
15th Floor
New York, New York 10018
(516) 516-0341
[email protected]
Counsel for Amici Curiae
 i

TABLE OF CONTENTS
TABLE OF AUTHORITIES ................................... II
INTEREST OF AMICI CURIAE ............................ 1
SUMMARY OF ARGUMENT ................................ 2
ARGUMENT .......................................................... 5
I. President Trump Has Not “Engaged” in Any
Overt Acts Amounting to Insurrection ...................5
A. The Court Below Ignored The Plain
Meaning of The Word “Engaged” as Originally
Understood ............................................................ 5
B. The Plain Meaning of The Word “Engaged”
as Originally Understood Excluded Mere
Rhetoric .................................................................9
C. Case Law Usage of The Word “Engaged”
and Its Variations From the Appropriate
Historical Period Meant that Overt Acts Beyond
Mere Words Were Required ...............................11
D. The Second Confiscation Act Specified
“Engage” and “Incite” as Separate Acts ............15
E. The Word “Engage” in the War Clause
Requires a State’s Direct Prosecution of War ...16
II. Disqualification Under the Insurrection
Clause Without An Overt Act Can Only Occur in
Instances In Which an Individual Gave “Aid and
Comfort” To The “Enemies” of the United States 17
CONCLUSION ......................................................21
 ii

TABLE OF AUTHORITIES

Page(s)
Cases

Am. Hosp. Ass’n v. Becerra,

596 U.S. 724 (2022)............................................ 8, 11

City of Salt Lake City v. Hollister,

118 U.S. 256 (1886)................................................ 13

Cramer v. United States,

325 U.S. 1 (1945)........................................ 17, 20, 21

E. Saginaw Salt Mfg. Co v. City of E. Saginaw,

80 U.S. 373 (1871)............................................ 12, 13

Facebook, Inc. v. Duguid,

592 U.S. 395 (2021).................................................. 8

Ford v. United States,

273 U.S. 593 (1927)................................................ 16

Freese v. Swartchild,
35 F. 141 (C.C.N.D. Ill. 1888) ................................ 14

Jennings v. Rodriguez,
583 U.S. 281 (2018)................................................ 16

Kisor v. Wilkie,
139 S. Ct. 2400 (2019).............................................. 8
 iii

Luther v. Borden,
48 U.S. 1 (1849).................................................. 7, 10

Newton v. Furst & Bradley Mfg. Co.,

14 F. 465 (C.C.N.D. Ill. 1882) ................................ 14

Renwick v. Pond,
20 F. Cas. 536 (C.C.S.D. N.Y. 1872) ..................... 14

The Amy Warwick,

67 U.S. 635 (1862).................................................... 7

The Kate,
69 U.S. 350 (1864).................................................. 12

United States v. Burr,

25 F. Cas. 55 (C.C.D.Va. 1807)........................ 19, 20

United States v. Powell,

27 F. Cas. 605 (C.C.D.N.C. 1871)........................ 6, 7

Constitutions

U.S. CONST. amend. XIV, § 3 ............................. passim

U.S. CONST. art. 1 § 10.............................................. 16

U.S. CONST. art. III ................................................... 19

Statutes

18 U.S.C. § 2383........................................................ 15
 iv

Insurrection Act of 1807, ch. 39, 2 Stat. 443 ............. 7

Militia Act of 1795, ch. 36, § 2, 1 Stat. 424................ 7

The Reconstruction Acts, 12 U.S. Op. Any. Gen. 141,

160 (1867) ............................................................... 19

Other Authorities

I ASHER C. HINDS, HINDS’ PRECEDENTS OF THE

HOUSE OF REPRESENTATIVES OF THE UNITED
STATES 446 (1907). .......................................... 10, 11

CONG. GLOBE, 39th Cong., 1st Sess. 2498 (1866) .... 19

Geoff Mulvihill, Israel and Hamas Measures Get a

Look As Most US State Legislatures Meet For First
Time Since Oct. 7, ASSOCIATED PRESS, Dec. 23,
2023 ........................................................................ 16

Jennifer K. Elsea, The Insurrection Bar to Office:

Section 3 of the Fourteenth Amendment,
CONGRESSIONAL RESEARCH SERVICE, Sept. 7, 2022
.......................................................................... 18, 19
 1
INTEREST OF AMICI CURIAE1

Gavin M. Wax is a New York-based political

commentator and columnist. He is the seventy-sixth
President of the New York Young Republican Club
and the Executive Director of the National
Constitutional Law Union. New York Young
Republican Club Inc., established in 1911 and
incorporated in 1912, is America’s oldest and largest
Young Republican Club. Its mission, as set forth in the
Club’s statement of purpose, includes “promotion of
honest and fair electoral methods, to the end that the
expression of the popular will by whatever party or
body, shall be as free, untrammeled and equal as
possible.” National Constitutional Law Union Inc. is
a non-profit social welfare organization. Its mission is
to preserve and protect the United States
Constitution and the American way of life by
providing legal support and funding to individuals
whose constitutional rights, civil liberties, and similar
rights are being violated or in jeopardy. Amici curiae
have an intense interest in protecting America’s
elections from improper interference by courts and
partisans alike, and in ensuring that Petitioner,
Donald J. Trump (“President Trump”), is not
disqualified from the ballot during the upcoming 2024

1No counsel for any party authored any part of the brief.
Only amici curiae funded its preparation and submission.
 2
presidential election process by unconstitutional
means.

SUMMARY OF ARGUMENT

Rather than let the voters decide who will be

the next President of the United States, President
Trump’s political opponents have weaponized Section
3 of the Fourteenth Amendment—the so-called
“Insurrection Clause”—to disqualify him from the
ballot by arguing that he “engaged in insurrection”
against the United States. U.S. CONST. amend. XIV, §
3. President Trump enjoys a virtually insurmountable
polling lead over his Republican challengers and
recently won the Iowa caucuses in a landslide.

Against this backdrop, the nakedly partisan

effort to disqualify President Trump from the ballot is
underway in multiple states, including, at issue here,
Colorado. On December 19, 2023, a majority of the
Colorado Supreme Court (the “CSC”), which is
composed entirely of justices appointed by Democratic
governors, ordered President Trump excluded from
the 2024 Colorado Republican Presidential Primary
ballot.

Many of President Trump’s most ardent

political opponents, blinded by their all-consuming
hatred of him and fear that he will win the general
election if the voters are allowed to decide, evidently
believe the ends justify the means. These opponents
cheer efforts by officials in other states to join the
disqualification parade, most notably unelected
 3
Secretary of State Shenna Bellows’s disqualification
of President Trump from Maine’s primary ballot
shortly after the CSC’s decision.

But someday, perhaps sooner than President

Trump’s political opponents may realize, their
misguided interpretation of the Insurrection Clause
will work against them. Armed with a weaponized
Insurrection Clause, partisan officials (Democrat and
Republican alike), particularly in states
overwhelmingly controlled by a single party, will find
so-called evidence to disqualify despised political
opponents from the ballot for having “engaged in
insurrection” against the United States, and this
process will be repeated ad infinitum.

To make matters worse, as the court below’s

apparently partisan decision to uphold the
disqualification of President Trump demonstrates,
state supreme courts may not be sufficiently
politically agnostic to properly assess Insurrection
Clause disqualifications. What ensues, then, will be a
chaotic and ceaseless cycle of politically motivated
disqualification akin to the back-and-forth feud
between the Hatfields and the McCoys.

But this cycle of chaos need not, and should not,

come to pass. Perhaps more than any other clause in
the Constitution, the Insurrection Clause demands a
strict, narrow construction based on original public
meaning, rule of law, and the separation of powers
necessary to insulate the courts from political
 4
questions and the chaotic forces of partisan party
politics. Unless this Court limits the word “engaged”
to direct acts clearly calculated to bring about a
successful insurrection against the United States, the
Insurrection Clause will be stripped of its original,
objective meaning, which excluded mere
encouragement, tacit support, or even outright
incitement.

Applying this originalist, objective meaning,

President Trump did not “engage[] in insurrection” by
delivering a fiery political speech that may have
motivated a tiny fraction of his supporters to engage
in the events at the Capitol of January 6, 2021. The
definition of “engage”—as it was understood at and
around the time the Fourteenth Amendment was
adopted (1868), and in other relevant constitutional
and historical sources—required direct involvement
in acts of insurrection and excluded mere
encouragement, tacit support, or incitement.
Additionally, mere speech can only support
disqualification under the Insurrection Clause if such
speech rises to the level of giving “aid and comfort” to
our “enemies.” U.S. CONST. amend. XIV, § 3.

The word “engaged” as used in the Insurrection

Clause, is plainly not applicable to President Trump
or to any of his purported conduct at issue, and there
was no allegation before the CSC that President
Trump’s speech amounted to giving “aid and comfort”
to our “enemies.” Accordingly, this Court should
reverse the decision below.
 5
ARGUMENT

I. President Trump Has Not “Engaged” in

Any Overt Acts Amounting to Insurrection

A. The Court Below Ignored The Plain

Meaning of The Word “Engaged” as
Originally Understood

Contrary to the facts, the court below found

that President Trump incited supporters to acts of
insurrection and therefore that he “engaged in”
insurrection. Pet. App. 10a. The court specifically
found that President Trump (1) made multiple uses of
the word “fight” in his speech on January 6, 2021,
along with other more ambiguous “coded” language,
which encouraged lawless behavior; (2) made untrue
claims about the 2020 presidential election; (3) knew
of the potential for violence; and finally that (4)
although President Trump made repeated calls for his
supporters to remain “peaceful,” he did not direct
them to leave the Capitol grounds for about two-and-
a-half hours after receiving reports that some of them
had broken into the Capitol building. Pet. App. 91a-
99a.

But critically, the court fashioned its own 2023

definition of what the word “engaged” and the term
“engaged in” actually meant, rather than identifying
the definition of “engaged” as it was understood at the
time of the adoption of the Fourteenth Amendment,
and at other relevant points in American history. The
 6
court went so far as to insist that “incitement qualifies
as ‘engagement’” under the Insurrection Clause,
contrary to the plain meaning of the word “engage.”
Pet. App. 89a-91a. And—intentionally operating
without a proper definition of “engaged”—the court
willfully ignored the full and proper context of
President Trump’s words on January 6, 2021; using
words like “fight” is common in the context of political
rallies, and, in any event, President Trump also called
upon his supporters to “be peaceful.”’ Pet. App. 96a-
98a. Even if President Trump’s words may have
encouraged unlawful behavior amongst a tiny fraction
of his supporters, this type of speech cannot be
considered action directly calculated to help an
insurrection succeed. See United States v. Powell, 27
F. Cas. 605, 607 (C.C.D.N.C. 1871) (The word “engage”
in the Fourteenth Amendment requires “a voluntary
effort to assist the Insurrection or Rebell[i]on, and to
bring it to a successful termination.”).

When the Fourteenth Amendment was

adopted, the word “engaged” in the context of
insurrection was already a well-understood legal
term, and was consistently defined by courts and in
statutes to require, at the very least, conduct that
obstructs the execution of law by “combinations too
powerful to be suppressed by the ordinary course of
judicial proceedings, or by the power vested in the
marshals.” Luther v. Borden, 48 U.S. 1, 38 (1849)
(construing the Insurrection Act of 1807); The Amy
 7
Warwick, 67 U.S. 635, 691 (1862) (same); Militia Act
of 1795, ch. 36, § 2, 1 Stat. 424; Insurrection Act of
1807, ch. 39, 2 Stat. 443. When applying the same
language in the context of the Insurrection Clause,
therefore, courts understood that the term “engaged
in” would only apply to “voluntary effort to assist the
Insurrection or Rebell[i]on, and to bring it to a
successful termination.” Powell, 27 F. Cas. at 607.

Clearly, nothing President Trump said or did

was meant to bring an insurrection to a “successful”
conclusion, nor did the court below consider any such
evidence. Nevertheless, to avoid the plain meaning of
President Trump’s words in favor of political bias, the
court below relied on the “expert” opinion of a
sociology professor, who opined that President Trump
used “coded” language some of his supporters
understood as “literal calls to violence.” Pet. App.
107a. Based on these facts alone, the court ultimately
held that President Trump “engaged in insurrection”
by intentionally inciting others to unlawful action.
Pet. App. 110a-112a.

However, President Trump did not arm

insurrectionists nor command them. Nor did
President Trump say anything that could fairly be
characterized as advocating for violence against
Capitol Police or otherwise encouraging any other
specific acts of insurrection. In summary, the court
utilized a dubious expert opinion and circumstantial
 8
evidence instead of determining the original meaning
of “engaged in,” an approach that was wholly
insufficient in this context. Were the proper
definitions of the word “engaged” utilized, the
outcome below would have been different.

Indeed, Chief Justice Roberts has recently

“redirect[ed] the judge’s interpretive task back to its
roots, away from open-ended policy appeals and
toward the traditional tools of interpretation judges
have employed for centuries to elucidate the law’s
original public meaning.” Kisor v. Wilkie, 139 S. Ct.
2400, 2442 (2019) (Roberts, C. J., concurring);
Facebook, Inc. v. Duguid, 592 U.S. 395, 406 (2021)
(holding that alternative interpretive methods are not
needed unless “traditional tools of interpretation”
leads “to a ‘linguistically impossible’ or contextually
implausible outcome”); Am. Hosp. Ass’n v. Becerra,
596 U.S. 724, 739 (2022) (“[T]his Court is not the
forum to resolve th[e] policy debate.”).

The “traditional tools of interpretation”

applicable here, spanning statutes, case law, and
historical sources, all demonstrate that “engaged”
could not have meant “incite.” These sources
uniformly show that the word “engage” or “engaged”
required intentional action to directly affect the
unlawful purpose at issue.
 9
B. The Plain Meaning of The Word
“Engaged” as Originally Understood
Excluded Mere Rhetoric

To work around the plain historical and

original meaning of the word “engaged,” the court
below cherry-picked modern dictionary definitions
and other sources, none of which support the
expansion of “engaged” to encompass mere rhetoric or
“incitement.” Pet. App. 89a-91a. The Colorado trial
court implicitly acknowledged the total lack of support
from legitimate sources defining the word “engaged,”
and therefore relied instead on the fallacious policy
argument that acts of “incitement” are typically
“taken by those in leadership roles,” and that to
“exclude from disqualification such people would seem
to defeat the purpose of disqualification.” Pet. App.
259a.

But this radical expansion of the word

“engaged” is wholly unnecessary to capture the intent
of disqualifying insurrectionist leaders from office.
Indeed, leaders of the Confederacy were guilty of far
more than mere incitement. They were directly
implicated in the Rebellion by giving military orders,
planning military campaigns, and commanding troops
during the Civil War. These are the epitome of
concrete acts that typify leadership and give rise to
organized insurrection or rebellion. There is no doubt
 10
Confederate leaders “engaged in insurrection or
rebellion against the United States.”

By contrast, merely giving a speech in support

of insurrection or rebellion (and, to be clear, President
Trump did not give a speech supporting insurrection
or rebellion) would not amount to “engag[ing]” in
insurrection or rebellion. For example, the Committee
on Elections for the Forty-First Congress considered
whether Virginia congressman-elect Lewis McKenzie
was disqualified under the Insurrection Clause for
supporting the secession of the Confederacy. I ASHER
C. HINDS, HINDS’ PRECEDENTS OF THE HOUSE OF
REPRESENTATIVES OF THE UNITED STATES 446 (1907).
The Committee found that, as a member of the
Virginia House of Delegates, McKenzie voted for a
resolution stating that, should negotiations with the
northern states break down, “every consideration of
honor and interest demand that Virginia [] unite her
destiny with the slaveholding States of the South.” Id.
at 472-75. In addition to making this statement,
McKenzie voted for appropriating state funds for
Confederate arms and munitions, further stating:
“Virginia is not afraid. When the convention comes to
a decision . . . and it is ratified by the people, she will
take her position, and, if necessary, fight.” Id. at 477.
Despite McKenzie’s clear and repeated expressions of
support for Virginia’s secession, the Committee
concluded that he was not disqualified because his
support occurred prior to Virginia’s secession, and
 11
therefore “[i]t could not be pretended that he yielded
support to any government hostile to the United
States.” Id.

If McKenzie’s clear public support for

insurrection and rebellion immediately prior to the
Civil War was not sufficient to show he engaged in
insurrection under the Insurrection Clause, Trump’s
fiery rhetoric cannot be construed as disqualifying
“engagement” in insurrection.

C. Case Law Usage of The Word

“Engaged” and Its Variations From the
Appropriate Historical Period Meant
that Overt Acts Beyond Mere Words
Were Required

The common understanding of the word

“engaged” and the term “engaged in,” as requiring
direct participation in the act or conduct at issue, is
further demonstrated by this Court’s jurisprudence
from the very same period as the adoption of the
Fourteenth Amendment. For example, in 1864, the
Court determined whether the parties responsible for
a vessel, bound for the Western coast of Africa, “either
adapted or capable of being adapted to a slave
voyage,” were guilty of engaging in the slave trade.
The Kate, 69 U.S. 350, 364 (1864). The Court reviewed
whether the circumstances “raise[d] a presumption
that [the Kate] may be about to engage in the slave-
trade.” Id. (emphasis added). Ultimately, such
 12
conduct was not considered sufficient to demonstrate
actual engagement in the slave-trade. Id. The Court
explained that it was not “ready to lay down, as a rule
of evidence, that every vessel about to sail for the
African coast shall, ipso facto, be presumed guilty of a
purpose to engage in the slave-trade, unless she
proves herself, affirmatively, innocent.” Id. at 358
(emphasis added). Similarly, here, the court below
improperly “presumed” Trump “guilty of a purpose to
engage in” insurrection, in contrast to those
individuals who “engaged in” overt acts at the Capitol
on January 6, 2021.

The requirement of an overt act as a predicate

for an individual to have “engaged in” something was
further echoed by the Court in E. Saginaw Salt Mfg.
Co v. City of E. Saginaw, 80 U.S. 373, 375 (1871). The
Court there was faced with a dispute over the City’s
ability to discontinue or modify an incentive program
designed to encourage manufacturing of salt, and
ultimately upheld an amendment to the program
limiting benefits “to those who should be actually
engaged in the manufacture of salt prior to 1st of
August, 1861,” among other limits. Id. at 376
(emphasis added). In its discussion, the Court
accepted the finding that a party was “actually
engaged” in the manufacture of salt because it
“erect[ed] works for the manufacture of salt,”
commenced manufacture for at least 8 months,
actually produced 6348 barrels of salt, and purchased
 13
all of its property for the purpose of manufacturing
salt. Id. at 375-76. Thus, this Court clearly understood
the word “engage” as requiring an overt act, such as
spending large sums of money purchasing property,
and actually manufacturing, to reap the benefits of
engagement in a particular industry.

Similarly, in City of Salt Lake City v. Hollister,

this Court found that a taxpayer had improperly
“engaged in the business of distilling and producing
spirits.” 118 U.S. 256, 258 (1886) (emphasis added).
The Court found that plaintiff had “engaged” in the
business by “distilling and producing spirits, and
selling the same, and placing the proceeds of the sale
in its treasury; that during this time the plaintiff
made regular reports as to the quantity produced, and
paid the tax on the amount so reported.” Id. at 258-59.

Courts in the nineteenth century also

interpreted the word “engage” in the context of
technological advancements, particularly those
related to automation and new developments in
machinery, where the term “engage” was used to
reference the action of directly triggering a process or
affecting the function of a system. This usage was
common in federal district courts’ interpretation of
patent language in the nineteenth century. See Freese
v. Swartchild, 35 F. 141, 141 (C.C.N.D. Ill. 1888) (“In
a roller-abstractor having jaws adapted to receive and
grasp the roller, and movable sliding-spindle to
engage with the staff of the balance-wheel, and a lever
 14
for operating the spindle, substantially as specified.’”)
(emphasis added); Renwick v. Pond, 20 F. Cas. 536,
537 (C.C.S.D. N.Y. 1872) (“This hook is so constructed
as to slip by the flange of the cartridge, shown at 1,
fig. 1, when pressed against it, and to engage with the
flange in such manner that when the hook is
withdrawn the cartridge is also extracted.”) (emphasis
added); Newton v. Furst & Bradley Mfg. Co., 14 F.
465, 466 (C.C.N.D. Ill. 1882), aff’d sub nom., Newton
v. Furst & Bradley Mfg Co., 119 U.S. 373 (1886) (“The
brake mechanism is so arranged that when the brake
is made to engage with one of the carrying wheels in
motion, this axle is turned up edgewise, and the plows
thereby lifted out of the ground.”) (emphasis added).
This sort of usage of “engage,” in which physical
mechanical contact occurred, such as between a lever
arm or a gear and another component to be rotated,
also connoted a clear requirement of overt action.

In summary, around the time the Fourteenth

Amendment was adopted, and at other points during
the Nineteenth Century, the word “engage,” although
used in a variety of judicial contexts, always connoted
and required action (whether by man or machine), or
active involvement in or commitment of individuals to
various social, business, and/or mechanical courses of
conduct. In no context was speech conflated with
active participation.
 15
D. The Second Confiscation Act Specified
“Engage” and “Incite” as Separate Acts

The drafters of the Fourteenth Amendment

understood this distinction between “incitement” and
“engagement,” as evidenced by the fact that Congress
made this exact distinction when it enacted the
Second Confiscation Act in 1862. 12 Stat. 589, 590
(1862); see also 18 U.S.C. § 2383. The Second
Confiscation Act identified separately the crime of
“engaging” in and “inciting” insurrection. 12 Stat. 589,
590 (“if any person shall hereafter incite, set on foot,
assist, or engage in any rebellion or insurrection
against the authority of the United States . . . .”). By
specifically listing “incite” and “engage” separately in
the Second Confiscation Act, Congress clearly
demonstrated that these terms were understood to be
separate activities.

The Insurrection Clause, in contrast, set a high

bar for constitutional disqualification, well above
mere incitement, since incitement was excluded from
the Insurrection Clause. Congress’s omission of
“incite” from the Insurrection Clause was clearly
intentional, and demonstrates that Congress
specifically intended that merely encouraging, urging,
or otherwise inciting insurrection should not result in
a constitutional disqualification. See Jennings v.
Rodriguez, 583 U.S. 281, 300 (2018) (applying the
negative implication canon, that “[t]he expression of
one thing implies the exclusion of others (expressio
 16
unius est exclusio alterius)” (quoting A. SCALIA & B.
GARNER, READING LAW 107 (2012)); Ford v. United
States, 273 U.S. 593, 611 (1927).

E. The Word “Engage” in the War Clause

Requires a State’s Direct Prosecution of
War

Other than the Fourteenth Amendment, the

Constitution contains the term “engage” in the “War
Clause” of Article I, Section 10. The War Clause
provides, inter alia, that “[n]o state shall . . . engage
in War, unless actually invaded . . .” Clearly, this
clause is intended to prevent states from actually
prosecuting a war directly, not merely encouraging
others to engage in war.

Under the CSC’s modern, politically-driven

definition of “engage,” however, the War Clause would
apply to any State that shows mere support for a war.
This is not merely a theoretical question, but one with
very contemporary meaning. Texas and at least seven
other states recently passed resolutions supporting
Israel’s right to defend itself by waging war against
Hamas in response to the Hamas terrorist attack on
October 7, 2023. Geoff Mulvihill, Israel and Hamas
Measures Get a Look As Most US State Legislatures
Meet For First Time Since Oct. 7, ASSOCIATED PRESS,
Dec. 23, 2023. These expressions of support surely
cannot be deemed constitutionally prohibited under
the War Clause. To “engage” in war might include
physically supplying Israel with weapons or material
 17
aid, but mere rhetorical and moral support of Israel’s
right to wage war cannot equate to engagement under
the War Clause.

II. Disqualification Under the Insurrection

Clause Without An Overt Act Can Only
Occur in Instances In Which an Individual
Gave “Aid and Comfort” To The “Enemies”
of the United States

Mere speech, unaccompanied by overt acts, can

only support disqualification under the second part of
the Insurrection Clause, which provides for
disqualification only where an individual has “given
aid or comfort to the enemies [of the United States].”
U.S. CONST. amend. XIV, § 3 (emphasis added). Here,
Respondents never alleged that any participants in
the events at the Capitol on January 6, 2021 were
“enemies” of the United States, or that President
Trump provided such enemies “aid and comfort.” See
Cramer v. United States, 325 U.S. 1, 76 (1945)
(defining “enemies” to include only “subjects of a
foreign power in a state of open hostility with us”).
Accordingly, since President Trump was disqualified
for his speech based on the “engaged in” portion of the
Insurrection Clause, when speech-based
disqualification can only occur under the “aid or
comfort” portion of the Insurrection Clause, this is
separate grounds for reversal of the decision below.
 18
The plain text of the Insurrection Clause makes
clear that there are two entirely different predicate
acts that trigger constitutional disqualification:
“engag[ing] in insurrection or rebellion,” or,
alternatively, “giv[ing] aid or comfort to [our]
enemies.” U.S. CONST. amend. XIV, § 3. In this way,
the Insurrection Clause clearly distinguishes direct
action, “engaged in insurrection,” from more
tangential conduct amounting to “aid and comfort.”
Id.; see Jennifer K. Elsea, The Insurrection Bar to
Office: Section 3 of the Fourteenth Amendment,
CONGRESSIONAL RESEARCH SERVICE, Sept. 7, 2022, at
3-4 (the “Insurrection Bar to Office”).

It follows, then, that the Insurrection Clause

did not use the term “engage” to mean anything more
attenuated than direct physical actions specifically
calculated to cause insurrection. Examples of such
direct action might include physical attack or
delivering supplies to an enemy of the United States.
Mere words of support at a political rally, by contrast,
could be considered unlawful only to the extent those
words amounted to giving “aid and comfort to [our]
enemies.”

The term “aid and comfort to the enemies” in

the Insurrection Clause is borrowed directly from the
Treason Clause in Article III of the Constitution,
where the distinction between physical action and
mere support is critical: “Treason against the United
States, shall consist only in levying War against them,
or in adhering to their Enemies, giving them Aid and
 19
Comfort. . . . on the Testimony of two Witnesses to the
same overt Act.” U.S. CONST. art. III, § 3 (emphasis
added); CONG. GLOBE, 39th Cong., 1st Sess. 2498,
2500 (1866) (providing, in an early draft of Section 3,
that “all persons who voluntarily adhered to the late
insurrection, giving it aid and comfort, shall be
excluded from the right to vote”) (emphasis added);
see also The Reconstruction Acts, 12 U.S. Op. Any.
Gen. 141, 160 (1867); cf. The Insurrection Bar to Office
at 4.

Long before the Civil War, Courts understood

in the context of treason that “aid and comfort”
excluded those who merely provided enemies general
expressions of support or encouragement. See United
States v. Burr, 25 F. Cas. 55 (C.C.D.Va. 1807). After
completing his service as Vice President under
President Thomas Jefferson, Aaron Burr allegedly
engaged in a series of actions in the Western
territories of the United States that led to suspicions
that he was attempting to create an independent
nation in the western part of North America. Id. at 88-
90. Burr was then prosecuted for treason by United
States Attorney George Hay, under the direction of
President Jefferson. Id. At trial, the prosecution
introduced testimony showing, in relevant part, that
Burr intended to lead a military expedition against
Spanish territories or possibly detach parts of the
western territories from the United States. Id. at 81-
82.
 20
Chief Justice Marshall presided over the trial
and found that Burr could only be guilty of treason
based on his own conduct, not on mere opinions or
general support of the acts of treason committed by
others. Id. at 172. Chief Justice Marshall specifically
noted that Burr could not be guilty of treason “if he
was not with the party at any time before they reached
the [place of battle]; if he did not join them there, or
intend to join them there. . . then he was not of the
particular party assembled at [the place of battle], and
was not constructively present, aiding and assisting
in the particular act which was there committed.” Id.
(emphases added). As a result, Burr was acquitted of
treason. Id. at 181-82.

The precedent established under Burr has been

uniformly adopted by subsequent cases, including
Cramer, 325 U.S. 1. At issue in Cramer was whether
the defendant committed treason by meeting with
Nazis on several occasions to “confer, treat, and
counsel” them, as well as lying to the FBI about these
meetings “for the purpose of concealing the[ir] identity
and mission.” Id. at 36-37. However, the evidence did
not show that Cramer gave the Nazis information of
“value to their mission.” Id. at 37. Based on these
facts, the Court set aside Cramer’s conviction and
explained at length why the Framers sought to limit
the scope of treason to exclude most forms of mere
verbal expression. The Court noted that law of treason
was framed by men who “were taught by experience
and by history to fear abuse of the treason charge
 21
almost as much as they feared treason itself.” Id. at
21. These men were convinced, “as [Thomas] Paine
put in the maxim that ‘He that would make his own
liberty secure must guard even his enemy from
oppression; for if he violates this duty he establishes
a precedent that will reach himself.’” Id. at 49. The
Founding Fathers therefore structured the law of
treason to ensure that “thoughts and attitudes alone
cannot make a treason,” that “aid and comfort would
require the prosecution to show actions and deeds,”
and that “the overt acts of aid and comfort must be
intentional as distinguished from merely negligent or
undesigned ones.” Id. at 30-31.

The principles articulated in Burr and Cramer

are directly relevant to the interpretation of the
Insurrection Clause. Like the Treason Clause, the
Insurrection Clause requires a direct overt act of
actually engaging in insurrection or rebellion, or at
minimum, the attenuated act of having “given aid or
comfort to [our] enemies.” Therefore, the term
“engaged in insurrection or rebellion” must be limited
to taking direct action, and cannot be based on mere
encouragement or incitement alone.

CONCLUSION

The Court should put a permanent stop to

partisan use of the Insurrection Clause. To hold
otherwise, by adopting the biased logic of the court
below, would open a Pandora’s box of endless political
 22
retribution by opposing factions using the
Insurrection Clause in a manner for which it was
never intended. This cycle of electoral retaliation
would wreak havoc on our cherished system of free
and fair elections.

Accordingly, the Court should reverse the

decision below.

Dated: January 18, 2024

Respectfully Submitted,

EDWARD ANDREW PALTZIK

Counsel of Record
SERGE KRIMNUS
BOCHNER PLLC
1040 Avenue of the Americas,
15th Floor
New York, New York 10018
(516) 516-0341
[email protected]

Counsel for Amici Curiae