What legal or policy barriers prevent insurrection participants from federal employment?
This fact-check may be outdated. Consider refreshing it to get the most current information.
Executive summary
Federal law and the Constitution create multiple, overlapping barriers that can prevent someone who participated in an insurrection from holding federal office or being employed by the federal government: criminal statutes like 18 U.S.C. §2383 can carry a sentence and an express incapacity to hold “any office under the United States,” Congress’s enforcement of the Fourteenth Amendment’s Section 3 can disqualify prior officeholders from holding office again, and certain convictions carry explicit temporary employment bans for federal service; however, legal questions about who counts, how Section 3 is enforced, and the scarcity of convictions make practical application uneven [1] [2] [3] [4].
1. 18 U.S.C. §2383: a criminal bar that also declares incapacity to hold office
The criminal statute for “Rebellion or insurrection,” 18 U.S.C. §2383, makes it a federal crime to incite, assist, or engage in insurrection and prescribes fines and up to ten years’ imprisonment while explicitly stating that anyone convicted “shall be incapable of holding any office under the United States” [1] [5]. Separately, related conspiracy provisions carry stiffer penalties and an express post-conviction ineligibility for federal employment for five years following conviction in some formulations of the code [2].
2. Section 3 of the Fourteenth Amendment: a constitutional disqualification with historical roots
Section 3 of the Fourteenth Amendment—the Disqualification or Insurrection Clause—disqualifies people who swore an oath to support the Constitution and then engaged in insurrection or gave “aid or comfort” to its enemies from holding “any office” federal or state, a remedy used in Reconstruction and discussed as a modern mechanism to bar participation by those linked to January 6 [4] [6]. Importantly, historical practice shows this barrier was sometimes enforced by courts, legislatures, and Congress, and Congress retains the power to remove the disability by a two‑thirds vote [6] [7].
3. Enforcement gaps and jurisdictional limits that blunt the constitutional bar
Although Section 3 is a powerful textual bar, enforcement is legally and practically contested: courts have differed on scope, scholars dispute whether the presidency counts as an “office” for Section 3 purposes, and the Supreme Court has held that states lack authority to enforce Section 3 against federal officeholders or candidates—creating an enforcement gap for federal offices [8] [9] [4]. The Court’s Trump v. Anderson decision underscores that some enforcement routes are closed to states, leaving uncertain which institutions (federal courts, Congress, or the Justice Department) will be the forum for disqualification [4] [3].
4. Criminal conviction versus civil disqualification: different tracks, different outcomes
A criminal conviction under §2383 automatically triggers the “incapable of holding any office” language in the statute and, in related conspiracy provisions, temporary ineligibility to work for federal agencies [1] [2], but historical precedent and modern litigation show that Section 3 disqualifications have sometimes proceeded civilly without criminal prosecution—meaning disqualification can be litigated as a constitutional disability rather than only as a byproduct of conviction [6] [3].
5. Practical and policy considerations that shape who actually loses federal jobs
Beyond statutory text, practical barriers affect outcomes: convictions for insurrection are difficult to obtain, courts and administrative bodies must interpret who “engaged” in insurrection, and policymakers worry about weaponizing Section 3 or creating a political mechanism to exclude opponents—concerns that have produced cautious and divided approaches among judges, agencies, and commentators [8] [10]. Private and nonfederal employers face different rules—private employers generally control hiring and discipline absent federal-employer due‑process protections—but those distinctions do not erase the constitutional and statutory bars applicable to federal office and federal employment when criminal conviction or formal disqualification occurs [11] [1] [2].
6. Bottom line: law exists, but enforcement and scope are unsettled
The statutes and the Fourteenth Amendment provide concrete legal pathways to bar insurrection participants from federal office and, in some cases, from federal employment for a set period, but significant legal uncertainty—who is a triggering “officer,” whether the presidency is covered, which bodies can enforce Section 3, and the rare use of criminal convictions—means that the theoretical barriers do not always translate into automatic or uniform exclusions in practice [1] [2] [8] [4].