Wednesday, October 13, 2021

Insurrection Clause Should Be Used to Bar Trump from Seeking the Presidency Again

Last time the Insurrection Clause of the 14th Amendment received attention, the country was in the middle of Donald Trump's second impeachment.  The impeachment effort, since Trump was then out of office, was not about his removal, but to disqualify him from running for office again.  Since convicting someone on an impeachment required a 2/3 vote in the Senate, disqualification via that route seemed improbable at best.  Further, failure to achieve the Senate conviction would likely embolden Trump and his fervent base.  

Instead many people, myself included, floated a different option - Section 3 of the 14th Amendment:  
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.
This Insurrection Clause was aimed at disqualifying public service those government officials who had sided with the Confederacy during the Civil War.  But the clause is not limited to those facts.  While it has been little used since, there has not been the need.   Never in American history has there been an effort by an incumbent politician to disregard election results and stay in office.  That effort led to a violent mob on January 6th storming Congress to stop the counting of electoral votes.

While 57 of the 100 Senators (including 7 Republicans) thought the record at the time supported Trump's conviction on the impeachment, that was well short of the 2/3.  Without the conviction, the disqualification (the real goal of the impeachment) was also off the table.   That didn't seem a huge loss at the time.  In early February, Trump seemed politically damaged by the impeachment and the attempted insurrection he had fomented.  The notion of his running for President again in 2024 seemed highly unlikely.

That has changed dramatically.  

In the months that followed, the history of 1/6 was rewritten.  Never mind the violent altercation we saw on our TV screens, the Trump World turned the event into a: 1) glorious and peaceful protest about a stolen election; 2) an ordinary tourist visit; 3) an FBI false flag operation; 4) an ANTIFA false flag operation; 5) all of the above.  Never mind the video, never mind the Trump supporters who were arrested, never mind the confessions of those charged and convicted of violence on 1/6.   Trumpers live in a world of "alternative facts."

The months since the impeachment has brought forth shocking revelations of how far Trump and his allies went in an effort to overturn the 2020 election.  Trump pressured state officials to disregard the popular vote.  When that failed, he pressured the Justice Department to take action. When that failed, Trump tried to convince Vice President Mike Pence that his ministerial obligation to announce the electoral vote result gave him authority to override those electoral votes.  When that failed, Trump helped foment a violent insurrection in which his supporters tried to stop Congress' counting of the electoral votes.

The bipartisan January 6th Commission may well uncover even more evidence of Trump's attempted coup. Quite possibly, the report the Commission will issue will be damning.  But what happens next?  It is obvious that clear and convincing evidence of Trump's misdeeds, no matter how serious, will never matter in Trump World.  Those people are lost, at least for now, in their own blissful ignorance. 

For the rest of us who still believe in American democracy, we do not need more words from our elected officials about how bad Trump's attempted coup was and the threat he poses should he run again in 2024.  What we need from our elected officials is ACTION.   The January 6th Commission's report needs to include a recommendation that the Justice Department file an action to disqualify Trump from ever serving in state or federal office again.   Hopefully, Attorney General Merrick Garland, who thus far has been giving Trump a pass, will recognize the danger of doing nothing and this time do something.

Admittedly there are several legal hurdles to using the Insurrection Clause to disqualify Trump from being President.  But that doesn't mean we should not try.  The survival of our Republic is at stake.

OOP's short takes:
  • Contrary to popular conception, courts can rule quickly when they want to.  I am more than a little peeved at federal judges who have allowed Trump and his allies to "win" legal cases by running out the clock.  When it is clear that a litigant is going to use delaying tactics to prevail, judges need to expedite matters so that tactic is foiled.  
  • Which brings me to the January 6th Commission's subpoenas for documents sent to Trump's allies.  Trump has encouraged them to claim executive privilege, even though the argument is highly unlikely to succeed.  Courts need to dispose of those bogus claims in days, not weeks, not months. 
  • Most times there is no legal defense to not complying with those subpoenas.  The target of the subpoena refuses to respond knowing Congress will have to go to court to enforce the subpoena and that will result in a significant delay.
  • That is why Congress needs to brush off the historical dust on the concept of "inherent contempt" and start enforcing its own subpoenas.  The time-consuming process of Congress seeking judicial intervention to enforce its orders is clearly not working.  Congress needs to start making examples of those who simply are ignoring subpoenas or treating them as requests.  Even if Congress does not want to start putting people in jail for contempt, Congress can issue fines for non-compliance. Until Congress starts doing this, no one is going to take congressional subpoenas seriously.

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