One of the most often-raised objections to the Colorado Supreme Court’s decision disqualifying Trump from running for president under Section 3 of the Fourteenth Amendment is that Trump has never been convicted of engaging in insurrection. As conservative Washington Post columnist Jim Geraghty puts it: “If you’re going to throw a presidential candidate off the ballot for engaging in an insurrection through his personal actions, shouldn’t he first be convicted of engaging in an insurrection?”
The answer to this question is “no.” The reasons why are based on a combination of the basic structure of our legal system, and the original meaning of Section 3.
A standard element of our legal system is that the same events often give rise to both civil and criminal liability. For example, a person who commits rape, murder, or assault is subject to criminal penalties, and also to civil suits by his or her victims. In such cases, a criminal conviction is not a prerequisite to civil liability. Indeed, even an actual acquittal on criminal charges doesn’t necessarily preclude civil lawsuits against the perpetrator. Just ask O.J. Simpson, who was famously acquitted of criminal charges in the murder of his ex-wife Nicole Brown Simpson, and Ron Goldman, but later lost a civil case filed by the victims’ families. The criminal acquittal didn’t stop Simpson from incurring $33.5 million in civil liability. The criminal and civil cases were distinct, and the result of one did not determine that of the other.
The same reasoning applies to Trump. 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.
There are many reasons why civil and criminal cases arising from the same events might turn out differently. The most obvious is that a criminal conviction requires proof beyond a reasonable doubt, while a civil plaintiff can prevail merely based on a preponderance of evidence standard (a slightly more than 50% chance that her position is right). In the Colorado Section 3 case, state courts found that the plaintiffs had sufficient proof to satisfy a “clear and convincing evidence” standard (a higher burden than preponderance, but less than proof beyond a reasonable doubt)