I would be delighted to wake up one morning and learn that Donald Trump no longer is a candidate for president. However, I would be displeased if I learned that this outcome resulted from of an abuse of the Constitution.
There’s a movement to disqualify Trump from the presidency by applying a provision of the Fourteenth Amendment. In my view, such a disqualification would be an abuse of the Constitution.
The applicable provision states:
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.
For Trump properly to be disqualified pursuant to the Fourteenth Amendment, three things must be true. First, this provision must apply to the U.S. presidency. Second, the events of January 6, 2021 must constitute an “insurrection or rebellion” against “the Constitution of the United States.” Third, Trump must have engaged in the insurrection or have given aid or comfort to the enemies of the Constitution.
It seems to me that the burden of proof and/or persuasion for each of these elements should be on anyone who wants to disqualify a presidential candidate. I say this for two reasons. First and foremost, ruling out a presidential candidate undermines the ability of Americans to select the president of their choice. Therefore, it’s an undemocratic act and should not be undertaken unless it’s obvious that the criteria for disqualification are satisfied.
Second, the provision of the Fourteenth Amendment in question was a response to the Civil War, the clearest case of “insurrection or rebellion” imaginable. I don’t believe another civil war is necessary to trigger the “insurrection or rebellion” clause. However, given its origin, the clause should be reserved for obvious cases of these evils.
Now let’s turn to the three issues raised by calls for disqualifying Trump. The first is whether the provision being contemplated for the disqualification applies to the U.S. president.
I think there’s a strong case that it does not. By its specific terms, the provision applies to “Senator, or Representative in Congress, or elector of President and Vice-President.” The provision does not mention “President,” though it goes on to offer general language broad enough to include that office.
My friend and frequent Ringside commenter Jim Dueholm asks: “Why would drafters who specifically include top government offices rely on general language to include the presidency?” They probably wouldn’t. They probably wanted to leave the American people free to elect the president of their choice and trusted us not to elect an insurrectionist or rebel (but understood that the South would send insurrectionists to Congress and possibly pick them as presidential electors).
The next question is whether what happened on January 6. 2021 was an insurrection. I suppose it can be characterized as one, but there’s a good case that this was something short of an insurrection.
There was no attempt to overthrow the U.S. government. The goal, rather, was to halt the certification of Joe Biden as president to allow certain states time to reconsider who had carried the popular vote. In that sense, it can be compared with the filibuster Democrats carried out in 1877 which was intended prevent the counting of electoral votes that would eventually elect Rutherford Hayes. (In that case, a compromise ended the filibuster.)
To be sure, there was no violence associated with the 1877 filibuster. But my point is that slowing down a constitutional process is not the same thing as an attempt to overthrow the Constitution. Nor is taking an incorrect position about what the Constitution allows.
Third, if January 6 was an insurrection, did Trump engage in it? I think the answer is no. More importantly, neither Congress nor the Department of Justice thought the answer is yes.
Congress considered the question as part of the second impeachment of Trump. It did not convict Trump.
The DOJ considered the question in the investigation of Trump conducted by Jack Smith, the special counsel. Smith indicted Trump twice, but not for insurrection.
It’s true that this wasn’t a finding that Trump didn’t engage in insurrection. Rather, it was a finding, following an exhaustive investigation, that proof does not exist to establish beyond a reasonable doubt that Trump did so engage.
But in my view, the reasonable doubt standard should apply to an attempt to disqualify a presidential candidate pursuant to the Fourteenth Amendment. That’s because, as I discussed above, disqualifying a presidential candidate is a grave act that deprives Americans of the right to elect the candidate of their choice. Only in the clearest case of participation in an insurrection should such disqualification occur.
The language of the Fourteenth Amendment also covers giving aid and comfort to enemies of the Constitution. The special counsel did not conclude that Trump could be shown, beyond a reasonable doubt, to have done this, either. He did not indict Trump for aiding or conspiring with insurrectionists.
I should also note that the “aid and comfort” language, if construed broadly, could lead to the disqualification of many candidates for president and for lesser offices. Suppose a presidential candidate delivers a speech in favor of colleges continuing to prefer black applicants based on their race. Because such preferences are unconstitutional, that speech could be said to give aid and comfort to enemies of the Constitution. But by no means should it disqualify the candidate.)
The issue of disqualification has gained enough traction that it might be headed to the Supreme Court. I’m confident the Court will be loath to hold any presidential candidate disqualified for the office.
I’ll speculate that the Supreme Court, if it got that far in its analysis, would probably end up relying on the fact that both the executive branch and the legislative branch failed to conclude that Trump engaged in insurrection, and would decline to substitute its judgment (or the judgment of a lower court) for that of the political branches. Such reliance would make sense and yield the correct outcome, as I see it.
The bunch who were so outraged that Trump "threatened democracy" -- that is, the right of the people to select for themselves the person they want to lead them -- now wants to prevent roughly half the electorate from being able to select for themselves the person they want to lead them. Something like this could give hypocrisy a bad name.
I agree with you. Trump's behavior post election and on January 6 itself was outrageous and dangerous but it was not an insurrection and it is maddening to have his behavior excused by so many because the Democrats overreach again and again. An attempt to bar him under the 14th amendment from running would be disastrous.